FS v JJ and Another

• Jurisdiction: South Africa
• Citation: 2011 (3) SA 126 (SCA)

FS v JJ and Another
2011 (3) SA 126 (SCA)

2011 (3) SA p126

Citation	2011 (3) SA 126 (SCA)
Case No	695/2010
Court	Supreme Court of Appeal
Judge	Lewis JA, Bosielo JA, R Pillay AJA, Bertelsmann AJA and K Pillay AJA
Heard	November 5, 2010
Judgment	November 19, 2010
Counsel	JS Anderson for the appellant.; JJ Schreuder for the respondents.; A Skelton as curator ad litem for the minor child.

Flynote : Sleutelwoorde B

Minor — Custody — Rights and obligations of unmarried father — If mother and father were in permanent life partnership at time of birth of child, father automatically acquired parental rights and duties in respect of child — Children's Act 38 of 2005, s 21.

C Minor — Custody — Litigation — Litigation not to be first resort — Mediation useful way of avoiding legal battles — Legal practitioners to adopt approach conducive to conciliation and problem-solving and to avoid confrontational approach — Children's Act 38 of 2005, s 6(4).

Jurisdiction — High Court — Disputes about parental rights and responsibilities D — Forum shopping and reliance on formalism inappropriate — High Courts should not be faced with litigation requiring them to set aside order made in other jurisdiction — High Court that made the initial order to be approached for variation thereof — Applications dealing with parental responsibilities and rights by interested party to be brought in High Court within whose area of jurisdiction child ordinarily resident — Children's Act 38 of 2005, s 29. E

Judge — Duties and functions — Duty not so show bias — Language and findings of judge in custody hearings showing bias against father — Failing entirely to consider best interests of minor child — Stepping into arena by inviting other party to bring order holding father in contempt of court — Conduct of F judge regrettable and findings in respect of custody overruled.

Headnote : Kopnota

One C was born while her father, the appellant, and her mother, who died shortly after her birth, were living together. They intended to marry. The first respondent was C's maternal grandmother, who was married to the second G respondent. The parties had been engaged in a protracted battle over the custody of C, during which several applications were heard in the Northern Cape and Western Cape High Courts. The present appeal was against a series of orders made by Kgomo JP in the Northern Cape High Court, in terms of which custody of C was awarded to the respondents, an order at odds with the other orders made by both the Northern Cape and Western H Cape High Courts. In one instance the Judge President found the appellant guilty of contempt of court, for the 'disobedience' of earlier orders directing him to return C to the respondents, and sentenced him to a suspended period of imprisonment. In the appeal the SCA had to determine, inter alia, the best interests of C; the rights of unmarried fathers; whether the Northern Cape and Western Cape High Courts had had concurrent jurisdiction when their orders were made; and the extent of grandparents' I rights in respect of children.

Held, that the law governing the rights of unmarried fathers had changed during the course of the litigation: while the Natural Fathers of Children Born out of Wedlock Act 86 of 1997, which did not confer custody and guardianship on unmarried fathers, even on death or incapacity of the mother, applied J when C was born, the Children's Act 38 of 2005, under which unmarried

2011 (3) SA p127

fathers such as the appellant automatically acquired parental rights and A responsibilities, applied as from 1 July 2007. (Paragraphs [23] – [25] at 131I – 132D.)

Held, further, as to the grandparents' rights and responsibilities, that these were from 1 April 2010 governed by ss 23 and 24 of the Children's Act, which governed non-parental rights to care and guardianship. Before that, grandparents had no inherent rights or responsibilities, and it was only the High B Court that could confer access, custody or guardianship on a grandparent if it were in the best interests of a child, which had to be assessed in the light of the rights of the biological parents. (Paragraph [26] at 132E – F.)

Held, further, as to the litigation leading up to the present appeal, that the practice of forum-shopping was always unfortunate, particularly in disputes over parenting rights and responsibilities. It was preferable, in order to C avoid situations where different High Courts had to overturn each other's decisions, that the court that made the initial order be approached for the variation thereof. In any event, most of these difficulties had been resolved by the enactment of s 29 of the Children's Act, which came into operation only in 2010, and which provided that an application under ss 23 and 24 could be brought in a High Court within whose area of jurisdiction the D child was ordinarily resident. (Paragraph [38] at 135C – E.)

Held, further, that it was clear from the conduct and language of Kgomo JP that he was biased against the appellant, and that he had entirely failed to consider C's best interests. Such conduct was regrettable, and the appeal against his order, that C be returned to her grandparents, had to be upheld, since his conclusions in this regard had no basis in fact or in law, evinced E bias on his part, and failed to consider at all the only real issue — what was in C's best interests. (Paragraphs [43] and [45] at 136F – H and 137C.)

Held, further, that the appeal against Kgomo JP's order, finding the appellant guilty of contempt of court, also had to succeed: the appellant clearly had been acting bona fide, in accordance with an order of the Western Cape High Court, and on legal advice. (Paragraph [48] at 137H – I.) F

Held, further, that it was clear from the various reports studied by the court that C's best interests would be served by placing her with her father, the appellant. (Paragraphs [49] – [53] at 138B – I.)

In closing, the court pointed out that the present litigation had not been in any of the parties' interests. It endorsed the views expressed in MB v NB 2010 (3) SA 220 (GSJ) that mediation in family matters is a useful way of G avoiding protracted and expensive legal battles, and that litigation should not necessarily be a first resort. (Paragraph [54] at 138J – 139C.)

Cases Considered

Annotations:

Reported cases H

AD and Another v DW and Others (Centre for Child Law as Amicus Curiae; Department of Social Development as Intervening Party) 2008 (3) SA 183 (CC): dictum in para [30] applied

De Gree and Another v Webb and Others (Centre for Child Law as Amicus Curiae) 2007 (5) SA 184 (SCA): dictum in para [99] applied

J v J 2008 (6) SA 30 (C): referred to I

Kleingeld v Heunis and Another 2007 (5) SA 559 (T): referred to

MB v NB 2010 (3) SA 220 (GSJ): dictum in paras [52] – [59] applied

P and Another v P and Another 2002 (6) SA 105 (N): dictum at 110C – D applied

Townsend-Turner and Another v Morrow 2004 (2) SA 32 (C) ([2004] 1 All SA 235): referred to. J

2011 (3) SA p128

Statutes Considered

Statutes A

The Children's Act 38 of 2005, ss 6(4), 21 and 29: see Juta's Statutes of South Africa 2009/10 vol 7 at 4-134, 4-136 and 4-138.

Case Information

Appeal against various orders made in the Northern Cape High Court, B Kimberley (Kgomo JP).

JS Anderson for the appellant.

JJ Schreuder for the respondents.

A Skelton as curator ad litem for the minor child.

Cur adv vult. C

Postea (November 19).

Judgment

Lewis JA (Bosielo JA, R Pillay AJA, Bertelsmann AJA and K Pillay AJA concurring):

D [1] CS was born on 23 January 2006. Her father, Mr S, is the appellant in this matter. Her mother, Ms R, died two months after C's birth. She suffered from a congenital heart defect and was operated upon on the same day that C was born, in an attempt to remedy the defect. Regrettably, she did not recover. S and R were not married at the time of C's birth. But they were living together at the time and intended to E marry.

[2] The first respondent, Mrs J, was the mother of R, and thus the maternal grandmother of C. She is married to the second respondent, Mr J, but the latter was not R's father. The parties have been engaged, F virtually since C's birth, in a battle for the custody and guardianship of the child. (In terms of the Children's Act 38 of 2005, parts of which came into operation in 2007, and the balance in 2010, the term 'custody' is replaced with the obligation to care for a child, which is included in 'parental responsibilities and rights'. I shall discuss the Act and its G implications later.)

[3] Numerous applications to court to have C live with them have been made over the nearly five years of C's life by the respective parties, with different results. These have been made both in the Northern Cape High Court and in the Western Cape High Court. This appeal is against three H orders made by the Northern Cape High Court, all by Kgomo JP, with the leave of this court. Each order will be dealt with separately. Suffice it to say for the moment that Kgomo JP ordered that care and guardianship of C be awarded to the Js, but that S be given rights of contact (access) — orders completely at odds with all other orders made by both the Northern Cape and Western Cape High Courts in previous litigation. I

[4] This court also asked Ms Ann Skelton, assisted by the Centre for Child Law, University of Pretoria, to act as curator ad litem on behalf of C, and to present argument on her behalf. We are indebted to her and to the Centre for Child Law for the extremely thorough and helpful report J and argument presented.

2011 (3) SA p129

Lewis JA (Bosielo JA, R Pillay AJA, Bertelsmann AJA and K Pillay AJA concurring)

[5] There are a number of issues that must be determined: the best A interests of C; the...