RMD v KD

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Mossop J
• Judgment Date: 13 January 2023
• Citation: 2023 JDR 2632 (KZP)
• Hearing Date: 13 January 2023
• Docket Number: 16995/22P
• Court: KwaZulu-Natal Division, Pietermaritzburg

Mossop J:

[1]

This is an ex-tempore judgment.

[2]

This opposed urgent application is being heard on the last day of the recess period prior to the commencement of the new court year. The matter first came before me on Tuesday this week in the recess motion court when I was persuaded by counsel that it was so pressingly urgent that I should hear it without undue delay. Having agreed to hear the matter in rushed circumstances, and now having heard argument, it would be churlish not to deliver an ex-tempore judgment. If judgment is to be delayed, then the expedited hearing of the matter will have been wasted. Given the circumstances, this judgment may accordingly not be as thorough as it could be, and I hope that the reasoning behind the decision that I have come to is not obfuscated by the haste with which this judgment has been prepared and delivered. Having adopted this approach, however, I do not wish it to be understood that I agree that the matter is urgent, as I shall explain shortly.

[3]

The applicant seeks an order in the following terms:

‘(a)

This matter be heard on an urgent basis, and the time limits and notice periods be dispensed with;

(b)

An order be granted to the effect that the primary Residence [sic] of the minor child, S[. . .] F[. . .] D[. . .], be with the Applicant, and the Respondent be granted all reasonable access and contact with the minor child;

(c)

The minor child is enrolled at and attends Hilltops Pre-Primary School in Hilton from January 2023 in Grade R on a full time basis;

(d)

Cost [sic] of the Application, if defended.’

[4]

The respondent has delivered notice of a counter application in which she seeks the following relief:

‘1.

The matter is deemed urgent and the normal forms and service required by the Uniformed [sic] Rules of Court are dispensed with;

2023 JDR 2632 p3

Mossop J

2.

Primary residence of the minor c child S[. .] F[. . .] D[. . .] be with the applicant, K[. . .] M[. . .];

3.

The Respondent, R[. . .] M[. . .] D[. . .] be granted reasonable access and contact with the minor child;

4.

The Respondent in the main application is authorised to enrol the minor child in Atholton Primary School, Umhlanga from January 2023 and on a full-time basis.

5.

The Respondent be and is hereby ordered to pay the costs of this application.’

[5]

While there is a counter application, to avoid confusion I shall throughout this judgment refer to the father of the minor child as the applicant and the mother as the respondent, irrespective of which application it is that I am referring to.

[6]

From the nature of the relief claimed it is obvious that this is a dispute involving a minor child. Despite what I was told about the urgency of the matter, this is not a naturally urgent matter. The urgency is apparently that the minor child is required to start school next week and it is undecided at this juncture which school she should attend as the parties are unable to agree on this. The parties have known of the commencement of the school term for a long time. Through their seemingly endless feuding, they have created any urgency that may exist and in so doing have jumped the queue of cases awaiting adjudication and pressurised the court to deal with the matter in a fashion that suits them. But for the fact that the matter does involve a minor child, I would have struck the matter off the roll and allowed it to take its normal course through the rolls. However, it is now before me, and I will deal with it because it is in the best interests of the minor child that a decision regarding her future be taken given the inability of her parents to agree with each other.

[7]

The Judgment of Solomon is a story from the Hebrew Bible in which Solomon heard a dispute between two women who both claimed to be the mother of a young child. Solomon proposed to the two women that the child be cut in two, with each woman to receive half of the child. The woman who falsely claimed the child as hers entirely approved of this proposal, while the biological mother of the child begged that the sword of Solomon’s soldier, which had been drawn in preparation for the child to be cleaved in two, be sheathed, and the child committed to the care of her rival.

2023 JDR 2632 p4

Mossop J

Solomon’s proposal led to the true mother revealing herself and sacrificing her personal interests for the best interests of the child.

[8]

Regretfully, in this matter neither of the parties has demonstrated that they truly have the best interests of their minor child, S[. . .] F[. . .] D[. . .], a young girl born on 27 September 2017 (the minor child), at heart. Indeed, it appears likely that both would have embraced Solomon’s proposal that the minor child be cut in two rather than yield to the other. The animosity between them that must have contributed to the destruction of their relationship has not abated following the failure of the relationship. Instead, it appears that it has intensified. They are both adults yet have not conducted themselves as adults would. They appear to have declared war on each other and disregarded what effect this has on the minor child.

[9]

The applicant is the natural father of the minor child. The respondent is her birth mother. The parties never married. They resided together for a period but no longer do so. When they lived together, they lived at Howick, KwaZulu-Natal. When they separated, which occurred when the minor child was 14 months old, the respondent moved to La Mercy on the north coast of this province, a substantial distance from Howick. The applicant remains in Howick. The applicant has a child from a previous relationship, as does the respondent.

[10]

Mr Temlett, who appears for the respondent, submitted this morning that the matter is not a difficult one to decide. I agree that the issues in dispute are not complex. Indeed, they are the type of decisions that parents of minor children throughout the length and breadth of this country make as a matter of course on a day-to-day basis. Unfortunately, the parties, both of whom profess to be guided by the best interests of the minor child, are unable to make these decisions. They require the court to make those decisions for them. In P v P, [1] the court stated that:

‘Determining what custody arrangement will serve the best interests of the children in any particular case involves the High Court making a value judgment based on its finding of facts in the exercise of its inherent jurisdiction as the upper guardian of minor children. . .’.

2023 JDR 2632 p5

Mossop J

[11]

The two issues that require resolving are:

(a)

Where should the minor child’s primary place of residence be?

(b)

Where should the minor child go to school?

[12]

While two issues are mentioned above, there is, in truth, only a single issue, namely, where the minor child’s primary place of residence should be. Given the fact that the applicant and the respondent live far apart, it is not feasible that the minor child should live with one parent but go to school in an area where the non-custodial parent resides. Thus, the answer to the first issue will determine the answer to the second issue.

[13]

At the moment, the arrangement between the parties is that they share the care of the minor child with each other. The minor child spends one week with the applicant and then one week with the respondent. Last year, the applicant enrolled the minor child at Hilltops Pre-Primary School (Hilltops), a school in the area in which he resides. I shall have more to say about this shortly. The respondent, on the other hand, did not enrol the minor child in school last year but has started her on an online educational programme that can be accessed from her home. The respondent has since secured agreement in principle that the minor child will be accepted at Atholton Primary School in Umhlanga should she succeed with her counter application.

[14]

Over the fractious history of the parties’ relationship since they went their separate ways, the Office of the Family Advocate has performed two investigations and delivered two reports on the issue of who the primary care giver should be. There has been litigation between the parties but I do not intend going into that litigation in any great detail. A psychologist has also investigated the issue of the care of the minor child and has prepared a report. The Family Advocate in both reports prepared by that office recommended joint custody of the minor child. No guidance at all was accordingly provided as to which of the two parents should be the primary care giver. The psychologist instructed has not done much better. He has categorically stated that the decision is to be made by the court not by...