Bethell v Bland and Others

• Jurisdiction: South Africa
• Judge: Wunsh J
• Judgment Date: 31 October 1995
• Citation: 1996 (2) SA 194 (W)
• Docket Number: 5267/95
• Hearing Date: 11 October 1995
• Counsel: J Trim for the applicant. B W Maselle for the respondents and the intervening father.
• Court: Witwatersrand Local Division

D Wunsh J:

It will be convenient on occasion to refer to the parties by their first given names. Camdon, who is at present 21/2 years old, was born to Mathew Bland, who has intervened in these proceedings, and Donna Bethell, the third respondent, out of wedlock when both parents were minors. The father is now a major but the mother is still a minor. The mother and father have terminated their relationship and do not live E together. The applicant is the father of Donna, divorced from his first wife and married for a second time. The first and second respondents are the parents of Mathew. Donna at first lived with her mother, Marguerite Bethell, together with Camdon but moved out in approximately April 1994 after a disagreement with her mother and went to live with her then boyfriend. On that occasion she entrusted F Camdon to the applicant and his wife with instructions that the applicant's former wife, Marguerite, was not to see him. However, the applicant says that he has a very good relationship with Marguerite and kept in regular contact with her regarding Camdon. The applicant and his wife, Rina, cared for Camdon until approximately July 1994. Both of them worked during the day and Camdon was placed in a crèche at a G nursery school. Rina, who is about 38 or 39 years old, has no children of her own. She and the applicant looked after Camdon in the evenings and over week-ends. In approximately July 1994 Donna asked the applicant if she could have Camdon for a few days. When she failed to return him, he enquired and was informed that she did H not intend to return Camdon to him and Rina. Then in August 1994 Donna went to live with her mother, with whom she had become reconciled, because, the applicant says, 'she had run out of money'. She remained with her mother until February 1995 when she moved out after a further disagreement with her mother and her sister, Tracy, and again went to live with her boyfriend who in turn lives with his mother. The I applicant established from Mathew that Donna had given Camdon to him on condition that the applicant and his wife Rina 'never saw him again'. Mathew was at the time working and living in Witbank so that Camdon was placed in the custody of Mathew's parents, the first and second respondents. According to the founding affidavit there was a meeting of the applicant, his wife, Rina, and the first and second respondents on J 17 February 1995 when those respondents

Wunsh J

A informed the applicant that it was their intention to give Camdon to their second daughter, Jenny, for adoption. The founding affidavit continues as follows:

'8.3

Camdon hardly knows the first and second respondents having only seen them approximately three times during the last year and he B does not know their daughter, Jenny.

8.4

The first and second respondents have never shown any interest in Camdon whatsoever. When he was born neither they nor Mathew paid or offered to pay for any of the expenses associated with his birth.'

The applicant then goes on to say that he and his ex-wife had borne various costs for Camdon's maintenance. In support of his claim for custody of Camdon the applicant C points out that his ex-wife had carried out a number of the maternal functions and that Donna had shown no care or attention for or to Camdon. After cataloguing a number of complaints the applicant says:

'My ex-wife and I have repeatedly tried without success to turn Donna into a D good mother for Camdon. It was also left to us to take him to the doctor when he was ill.'

With regard to his own daughter he says this:

'10.1

Donna is still very immature and has no interest in Camdon except to use him against my ex-wife and myself when she wishes to express her disapproval for any form of discipline or when we E criticise her.'

In making out a case why he should be awarded the custody of his grandson the applicant says:

'I am young and healthy enough and can provide him with excellent accommodation. I am also financially well able to care for him. My wife, Rina, is also happy to assist me in this task. Camdon would go to crèche at the F Rivonia Nursery School where he was well looked after and extremely happy.'

The affidavit to which I refer was the basis of an urgent application brought by the applicant on 28 February 1995 for an order directing the first and second respondents to place Camdon in his custody pending the final decision of the application and that the Family Advocate investigate whether he is a suitable person to have custody of G Camdon. By consent Nugent J postponed the application until 22 March 1995, putting the parties on terms as to the filing of further affidavits and incorporating the following:

'5.

The child Camdon Bethell shall remain in the custody of the first and H second respondents until otherwise ordered by this Court. The first and second respondents shall allow the applicant and the third respondent to enjoy reasonable access to the child but in so doing shall not be obliged to permit the child to be removed from their home or from their control.

6.

I . . .

7.

The Family Advocate is requested to conduct such enquiries as may be considered necessary for the proper resolution of the application and . . . counter-application and to report her findings to this Court before 22 March 1995.'

The proceedings became far more protracted than had been envisaged by the learned J Judge. Various experts were consulted and the Family

Wunsh J

A Advocate furnished a report and a supplementary report with the result that the matter came before the Court only on 11 October, which is almost 71/2 months after the interim order was made. In the meantime Camdon had been ensconced with the first and second respondents. I do not propose to canvass all the reports that have B been submitted or the conflicting allegations in the affidavits, but shall summarise or quote the material features and passages which are the following:

1.

The counter-application referred to is one by the first and second respondents that the custody of Camdon be awarded to them.

2.

Donna filed an affidavit in support of the counter-application. She testified C to various complaints about the conduct of her mother. She disputed the applicant's allegation of a good relationship with his former wife. What she says does demonstrate a very strained relationship between the three of them. She also supports the averments of the respondents that they showed a keen and continuing interest in Camdon. In para 7.7 of her D supporting affidavit she says:

'I informed Mathew that I wanted Camdon to stay with him and his parents because it was clear that my family were doing everything in their power to ensure that I did not see Camdon.'

In the following subparagraph she says this:

E 'I informed Mathew that I did not want my parents involved in Camdon's upbringing and would prefer his parents to rear Camdon as I felt that they were better able to do so. While Camdon was staying with my father, my father did not let me know if anything serious was happening with Camdon, although I telephoned him regularly to find out about Camdon.'

F She supported the contention that the respondents, apart from showing an interest in and love towards Camdon, had provided financial support. She has the following further to say about her father's application:

'As far as I am concerned, although the applicant is financially well G able to care for Camdon, he does not have the ability emotionally to give Camdon the love and care which I believe Camdon needs. I truly believe that this sort of love and care will be given to Camdon by the first and second respondents and by Mathew. Also, it is clear that both Mathew and I will be able to see Camdon at the home of the first and second respondents without resistance whereas it H would provide extreme problems for both Mathew and me if we were to attempt to see Camdon at my father's home, as there is much strain in all of those relationships.'

3.

I suppose that it is a sign of Donna's instability and erratic behaviour that her next document before me was an affidavit sworn in support of the I applicant. She contends that she was taken by the first and second respondents to their attorney, to whom, she says, 'I described the facts raised in my aforesaid affidavit.' She continues:

'I signed the affidavit accepting that it contained a full and fair description of the facts as related to the aforesaid attorneys.'

J She disputes that she gave the attorneys a mandate to represent

Wunsh J

her. She professes to be ignorant of the fact that the respondents intended filing a counter-application for Mathew to have custody of Camdon. She continues: A

'Had I been told that Mathew intended applying for custody I would not have supported the first and second respondents at that stage as it became clear to me that Mathew did not want me to have B anything to do with Camdon. Mathew subsequently advised me that I will not play a part in Camdon's life. In truth and in fact since April 1995, Mathew no longer speaks to me and all communication between us has broken down completely.'

Finding another reason for her previous affidavit she says that at the time C when she signed it:

'I was angry with my parents, particularly my mother, for reasons previously canvassed.'

She continues:

D 'Given Mathew's stance, and his absolute lack of support, I have again taken residence with my mother, and which relationship has since April 1995 become one of co-operation and understanding. I have been advised that I require therapy to prepare me properly to care for Camdon.'

She then makes the following hopeful prediction:

E 'My anger and youth have resulted in mistakes made on my part, which if given the opportunity and the support and co-operation I am receiving from...