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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION: PRETORIA

CASE NO: 32403/2011

DATE: 5 NOVEMBER 2015

In the matter between:

PAGANE RAMOLOTO....................................................................................................APPLICANT

AND

MASETEBA MARIA RAMOLOTO............................................................................RESPONDENT

REASONS FOR JUDGMENT

MAKHAFOLA J:

INTRODUCTION

[1]  The applicant in this matter launched an application seeking the return of the children who were presently not with the respondent. The children were residing with the respondent’s mother somewhere in the Limpopo Province, since about September 2013. Both the applicant and the respondent are employed in Gauteng Province. None of the parties was residing with the children at the time the application was heard.

REASONS

[2] The following reasons caused me to dismiss the application.

(a) At the time of the application the children did not reside with the respondent but with their grandmother. In the circumstances the respondent’s mother needed to be joined as a respondent.

There was non-joinder. The court is competent to mero motu raise non-joinder.

Vide: Record: Page 23: lines 1-14 Vide: Record: Page 19: lines 15-16

(b) The address by the applicant’s counsel is that the children were kidnapped by their mother, the respondent.

Vide: Record: Page 5: lines 16-17

No case was made in the application for kidnapping. In any event kidnapping case should have been, reported at the nearest Police Station where kidnapping took place or at any Police station in the country.

(c) Since the children were attending school in Limpopo it is not in their interest to disrupt them for the sake of the applicant’s claim. Disrupting the children’s school in Limpopo is an affront to:

S 28 (2) and (3) and S 29 (1) of Act 108 of 1996 S 8(2) and (3) of Act 38 of 2005

The application was in stark contrast to the best interest of the children concerned.

(d) After a period of more than 3 months the children have been residing with the respondent’s mother. I needed the family advocate’s report to apprise me fully about the removal of the children. The Court was not in a position to investigate the circumstances and conditions the children were living in at the time of the application.

The requests to the family advocate were still pending.

Vide: Record: Page 7: lines 20-21 Vide: Record: Page 15: lines 21-24

(e) No case for contempt was made by the applicant. The applicant had failed to prove beyond a reasonable doubt contempt by the respondent.

Vide: FAKIE NO V CCII SYSTEM (PTY) LTD [2006] ZASCA 52; 2006 (4) SA 326 (SCA)

Vide: also: Record: Page 14: lines 8-9

There is no intention proved beyond a reason doubt that the

respondent intended to disobey the Court order.

(f) The argument that if the children do not want to come back to Johannesburg will be pulled by the police is not in the interests of the children. The “pulling saga” could not be sanctioned by the Court.

Vide: Record: Page 20: lines 13-25 CONCLUSION

The children are with the grandmother who has not been joined; the family advocate has not given a report about the children; the children had been staying with the grandmother for more than a year and are attending school and have friends. In these circumstances, I found that the applicant had not made a case as requested in his notice of motion and contempt of court.

I also found that in the circumstances, the family advocate’s report for transferring the child is a sine qua non.

ORDER

This order dismissing the application was based on the above reasons.

KHAMI MAKHAFOLA

JUDGE OF THE HIGH COURT

APPEARANCES

For Plaintiff : Adv. C ROUX (SC)

Instructing Attorney : R C CHRISTIE INC

For Defendant : Adv. M R NEMUTANDANI

Instructing Attorney : TLADI & ASSOCIATES

LMCK

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