T v M

• Jurisdiction: South Africa
• Court: Appellate Division
• Judge: Scott JA, E M Grosskopf JA, F H Grosskopf JA, Nienaber JA, Harms JA
• Judgment Date: 19 September 1996
• Citation: 1997 (1) SA 54 (A)
• Hearing Date: 16 August 1996
• Docket Number: 523/94
• Counsel: M C Erasmus for the appellant W J Dreyer for the respondent

Scott JA:

The appellant applied on motion in the Transvaal Provincial Division for an J order granting him access to his illegitimate daughter,

Scott JA

A Koketso. The relief claimed was successfully opposed by Koketso's mother who is the respondent. With the necessary leave the appellant appeals to this Court.

The application was heard by the Court a quo prior to the decision of this Court in B v S 1995 (3) SA 571 (A). Indeed, one of the grounds upon which leave to appeal was B granted was the uncertainty relating to the question of a father's right of access to his illegitimate child. Before dealing with the approach adopted by the Court a quo it is convenient to set out in broad terms the events preceding the hearing of the application.

The parties did not have what is commonly referred to as a 'live-in' relationship. C Although their ages do not appear from the papers, it would seem that when Koketso was born in January 1986 both the appellant and the respondent were relatively young. The respondent was still living with her parents. Nonetheless, the relationship appears to have been one of some substance and endured from 1985 to 1991.

D Following the birth of her child the respondent remained at home until August 1986 when she returned to work. As her parents were also working it was arranged that the appellant would collect Koketso every morning and take her to his parents' home where his stepmother would look after her. In the evenings the appellant would take her back to the respondent's home. In November 1986, when Koketso was nine months old, the E respondent left home in Mamelodi and moved to Port Elizabeth where she trained as a nurse at the Livingstone Hospital until October 1987. She did not take Koketso with her. There is some dispute as to the extent to which the appellant looked after Koketso during this period. On the respondent's version the arrangement continued as before; the F appellant collected Koketso every morning, took her to his parents' home and returned her to the respondent's parents in the evening. From June 1987 this arrangement was limited to weekdays and the respondent's parents cared for Koketso over the weekends. The respondent returned to her parents' home in October 1987 and shortly thereafter obtained employment as a nurse at the Ga-Rankuwa hospital. The relationship between G the parties at this stage appears to have been a happy one and there is nothing to suggest that the appellant did not continue to see Koketso on a regular basis. In August 1988 the appellant, who was a trainee systems analyst, was transferred to Pietersburg. He returned to Pretoria over weekends. On occasions the respondent would travel from H Pretoria to Pietersburg with Koketso to spend the weekend with the appellant. In March 1991 the appellant returned to Pretoria. By this time Koketso was five years old. She was enrolled at a preprimary school in Pretoria. The appellant paid the fees of R300 per month.

During April 1991 the respondent discovered that the appellant was having an affair I with another woman and she terminated her relationship with the appellant. The appellant continued to see Koketso but relations between the parties were far from cordial. According to the respondent, the appellant used the opportunity when visiting Koketso to force his attentions on her. She alleged that he assaulted her on a number of occasions, both before and after the break-up of their relationship. In February 1992 J she informed the appellant that he was no longer to come

Scott JA

A and visit the child. By this time Koketso was six years old. At the insistence of the appellant she was placed in a private school. The fees were paid by the appellant's employer. The appellant took to visiting Koketso at school. This too was stopped at the insistence of the respondent. In early 1992 the respondent instituted a maintenance inquiry alleging that the appellant was not supporting Koketso. This was denied by the B appellant. It appears, however, that the respondent and Koketso resided outside the area of jurisdiction of the court, which accordingly declined to hear the matter. In April 1992 the respondent laid a complaint of rape against the appellant. In August 1992 he was tried and acquitted in the regional court. He responded by instituting a civil action C against the respondent for malicious prosecution and obtained judgment by default in the sum of R7 000. In the mean time, the respondent had formed a relationship with another man, Mr Mamabolo. This was in the latter part of 1991. In February 1993 they were married. Mr Mamabolo established a good relationship with Koketso and during D the course of 1993 commenced proceedings to adopt her. This was the position in August 1993 when the appellant instituted the application which is the subject of the present appeal.

Although the litigation did not involve divorce proceedings, the question of access to Koketso was nonetheless referred by the...