THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Case no: 695/2010
In the matter between:

S

Appellant

and

Mrs J

First Respondent

Mr J

Second Respondent

Neutral citation:
S v J (695/10) [2010] ZASCA 139 (19 November 2010)

Coram:

LEWIS, BOSIELO JJA and R PILLAY, BERTELSMANN

and K PILLAY AJJA

Heard:

5 NOVEMBER 2010

Delivered

19 NOVEMBER 2010

Summary:
Parental rights and responsibilities under the Children’s
Act 38 of 2005: unmarried father’s responsibilities and rights; grandparents’
responsibilities and rights; jurisdiction of high court to set aside or suspend
operation of another high court’s order.

______________________________________________________________
ORDER
______________________________________________________________
On appeal from: High Court (Northern Cape) (Kgomo JP sitting as court of
first instance in three applications):
The following orders are made.
A
1 The appeal against the whole of the order of the Northern Cape High Court
made on 2 October 2009 succeeds, with costs.
2 That order is replaced with the following:
‘(a) The first and second applicants’ application is dismissed.
(b) It is declared that the first respondent is the holder of full parental
responsibilities and rights in terms of s 18 of the Children’s Act 38 of 2005.
(c) C shall reside permanently with the first respondent.
(d) The applicants may have contact with C on a regular basis, which should
be arranged with Mrs A J, the mother of Mrs A S, and which should take place
at the home of Mrs A J or at a place agreed by Mrs A J and the first applicant.
All such arrangements should be discussed with the first respondent prior to
contact taking place.
(e) In the event that the parties experience difficulty in arranging contact they
must first attempt to resolve this through a mediator rather than through court
proceedings.’
B
1 The appeal against paragraphs 2, 3 and 4 of the order made by the
Northern Cape High Court on 30 October 2009 succeeds with costs.
2 The order is replaced with the following:
‘The first and second applicants’ application is dismissed.’
C
1 The appeal against the order made by the Northern Cape High Court on 21
May 2010 succeeds with costs.
2 The order is replaced with the following:
‘The application is dismissed with costs.’

______________________________________________________________
JUDGMENT
______________________________________________________________
LEWIS JA ( BOSIELO  JA AND R PILLAY, BERTELSMANN AND K PILLAY
concurring)

[1] C S 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 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, 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 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
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.

[4] This court also asked Ms Ann Skelton, assisted by the Child Care
Centre, 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 Child Care
Centre for the extremely thorough and helpful report and argument presented.

[5] There are a number of issues that must be determined: the best
interests of C; the rights of unmarried fathers; whether the Northern Cape and
Western Cape High Courts had concurrent jurisdiction at the times their
respective orders were made; and the extent of grandparents’ rights in
respect of children. I shall deal, first, however, with the history of the matter.

[6] As I have said, at the time of C’s birth S and Ms R were living together
in Paarl and had been for some 18 months prior to her birth. Although the Js
dispute this, S alleged that he and Ms R intended to marry after the birth of C
and there was other evidence that this was so.

[7] Currently C lives with S and his wife, A, in Paarl. They married in June
2007. She has a half-brother who was born about a year before this appeal.
The Js live in Keimoes, on a farm. And C spent the first couple of years after
her birth living in Keimoes with them. It is common cause that Mrs J went to
Paarl to be with Ms R when she gave birth. It is also not disputed that S took a
month’s leave from work to be with Ms R over the birth and thereafter. Before
Ms R died she took C to Keimoes to visit her family. She fell gravely ill there
and returned to Paarl with her mother and C, but died in hospital.

[8] A few days later Mrs J took C back to Keimoes with her. S alleged that
this was done without his consent: he had left C with Mrs J while he went to
do some errands and when he returned to his home C and her things were
gone. Mrs J, in various proceedings, has alleged that she took C with S’s
permission. In the course of doing an investigation a family advocate
concluded that S’s version was more probable. This dispute has not been
resolved, but in my view nothing turns on it at this stage.

[9] Ms R was buried in Keimoes in April 2006. S was faced at the funeral
with papers for a hearing in the Children’s Court (served in the company of
police officers whose presence was arranged by Mr J), the Js having asked
for an investigation with a view to obtaining custody and guardianship of C. At
the time the Child Care Act 74 of 1983 was in operation, as was the Natural
Fathers of Children Born out of Wedlock Act 86 of 1997. A hearing in the
Children’s Court commenced towards the end of April 2006. It took until
February 2008 to conclude, at which stage C was already two, and had been
living in Keimoes with the Js.

[10] Before the decision of the Children’s Court was made, S brought an
urgent application in the Northern Cape High Court for a declaratory order in
terms of s 21 of the Children’s Act, by then in force, confirming his full parental
rights and responsibilities (I shall deal with the section later) and affording him
access (now termed contact) to C. The application was postponed.

[11] On 26 February 2008 the Children’s Court ordered that C be placed in
her father’s care, and reside with him, following a process of reunification that
was to take place from February until August of that year.

[12] But in August 2008 the Js brought an urgent application, heard by
Olivier J, asking for a suspension of the reunification process; parental rights
and responsibilities in respect of C; and that S’s rights be limited to
reasonable contact. Olivier J issued a rule nisi and referred the matter back to
the Children’s Court. S brought a counter application a month later for a
declaratory order that he held full parental rights and responsibilities and that
he be given contact with C pending the finalization of the Js’ application.

[13] The rule nisi was extended on three occasions subsequently, in
September and October 2008. In November 2008 Majiedt J extended it again,
until 30 January 2009, and made orders as to the appointment of
psychologists to facilitate contact between S and C. He also ordered that C
spend one weekend a month with S in Paarl and one per month in Keimoes.
The order required reports by experts to be filed indicating the progress made

in reuniting C with her father. That order too was extended, once by Majiedt J
and once by Tlaletsi J in February 2009.

[14] On 19 February 2009 the family advocate, Mr Andries Nel, filed his
report, stating that S had automatically acquired full parental rights and
responsibilities by virtue of s 21 of the Children’s Act, and recommending that
C reside with her father, subject to a process of integration and to rights of
contact being afforded to the Js. At that stage C was three. The rule nisi was
extended yet again.

[15] On 27 February 2009 Lacock J in the Northern Cape High Court made
an agreement between the parties an order of court. It extended the rule nisi
and
ordered
the
reintegration
process
in
accordance
with
the
recommendation of Mr Nel. That was followed (on 6 March) by another order
by agreement, extending the order of Lacock J for another month and
ordering contact between S and C in Paarl in March. That took place for some
two weeks, and the rule nisi was extended by Henriques AJ until 7 August
2009. In fact, C started living in Paarl with her father and stepmother without
interruption from July 2009.

[16] Despite the recommendation of the family advocate and the orders
made by agreement, and despite the fact that C had settled in Paarl – of
which more later – the Js applied to the Northern Cape High Court in August
2009 for an order that the question of parental rights and responsibilities be
referred to oral evidence. Kgomo JP heard the application, but the request for
referral to oral evidence was abandoned. On 2 October 2009 he ordered that
‘custody and guardianship’ of C be awarded to the Js; that they be awarded
full parental responsibilities in terms of s 18 of the Children’s Act; that C live
permanently with the Js and that S be given the ‘right of reasonable access’ to
C to be determined in accordance with recommendations from the parties’
respective psychologists. If they reached agreement it would be made an
order of court on 20 October 2009. This is the first order appealed against.

[17] A day after the order was made by Kgomo JP, S launched an urgent
application in the Western Cape High Court asking for a stay of the order
pending the filing of an application for leave to appeal. Bozalek J granted the
order, effective until 9 October, or until the filing of the application for leave,
whichever was the earlier. On 9 October S filed the application for leave to
appeal in the Northern Cape High Court.

[18] On 19 October 2009 the Js filed an urgent application to enforce the
order of Kgomo JP, this despite the filing of the application for leave to appeal.
In response S launched yet another urgent application in the Western Cape
High Court for a ‘variation’ of the order of Kgomo JP. Yekiso J granted a rule
nisi with a return date of 27 November 2009 and ordered that C should
continue to live with S in the interim period.

[19] S also filed a supplementary affidavit in the Northern Cape High Court,
prior to the date when Kgomo JP was to hear whether agreement had been
reached on contact between himself and C, explaining that he had applied for
leave to appeal. Kgomo JP, on 30 October, struck the application for leave to
appeal from the roll (despite the fact that it had not yet been enrolled), citing
non-appearance by S as the reason; ordered S to ‘deliver’ C to the Js within
seven days; and ordered the enforcement of the order of 2 October. This is
the second order appealed against.

[20] An application for leave to appeal against the second order of the judge
president was filed on 2 November 2009. The Js immediately, on 12
November, filed an application for an order holding S and his attorney, Ms
Odette Deysel, in contempt of court. On 21 May 2010 Kgomo JP found S in
contempt of court (‘disobedience’ of the orders of 2 October and 30 October
2009 and the order of 25 March 2010)  and ordered imprisonment of S for one
month, suspended for ten days on condition that he ‘delivers’ C to the Js.  The
judge president also ordered each of S and Deysel to pay to the applicants 50
per cent of the taxed costs of the Js on the attorney and client scale. This is
the third order appealed against.

[21] However, prior to the third judgment and order being handed down,
Louw J in the Western Cape High Court heard the application of S for the
confirmation of the rule nisi issued by Yekiso J earlier in the year and handed
down judgment on 5 March 2010. He discharged the rule nisi but ordered that,
pending S’s appeal in the Northern Cape High Court, the execution of the
order of Kgomo JP be stayed.

[22] On 9 June 2010 S applied for leave to appeal against the order of
Kgomo JP made on 21 May 2010 in the Northern Cape High Court. Leave
was refused on the basis that the application was brought only to frustrate the
‘delivery’ of C to the Js and that there were no reasonable prospects of
success on appeal. As I have said, this court granted leave to appeal against
the three orders of Kgomo JP in September 2010.

The legal framework
Unmarried fathers’ rights and responsibilities
[23] As I have indicated the law governing the rights of an unmarried father
changed during the course of the litigation. When C was born the Natural
Fathers of Children Born out of Wedlock Act 86 of 1997 applied. It did not
confer custody and guardianship on an unmarried father even on the death or
incapacity of the mother.  And in the absence of a will directing otherwise
grandparents also did not have these powers without an order of court.

[24] However, during the course of the disputes, the Children’s Act 38 of
2005 came into operation, in part in 2007 and the balance in 2010. Section 21
of the Children’s Act, which came into operation on 1 July 2007, is
fundamental in this matter. The relevant part reads:
‘21     Parental responsibilities and rights of unmarried fathers
(1) The biological father of a child who does not have parental responsibilities and
rights in respect of the child in terms of section 20, acquires full parental
responsibilities and rights in respect of the child-
(a)
if at the time of the child's birth he is living with the mother in a permanent
life-partnership; . . .

Section 20 deals with the parental responsibilities and rights of married
fathers. And s 21(4) states that s 20 applies ‘regardless of whether the child
was born before or after the commencement of this Act’.

[25] If, therefore, S and R had been living in a ‘permanent life partnership’
at the time of C’s birth he would automatically have acquired parental rights
and responsibilities when the section came into operation on 1 July 2007.

Grandparents’ rights and responsibilities
[26] Sections 23 and 24 of the Children’s Act, which govern non-parental
rights to care and guardianship respectively, came into operation on 1 April
2010. Section 23 allows any person having an interest in the care, well-being
or development of a child to apply to an appropriate court for rights of contact
and care, subject to the best interests of the child. Section 24 deals with the
assignment of guardianship. Before that date grandparents had no inherent
rights or responsibilities. It was only a high court, as the upper guardian of a
child, that could confer access, custody or guardianship on a grandparent.
And of course that too would be done only if it were in the best interests of a
child – an assessment that would have been made having regard to the rights
of the biological parents.1

The first judgment and order: 2 October 2009
[27] Ms Anderson, for S, contends that in reaching the conclusion that
guardianship and care of C should be awarded to the Js, Kgomo JP made a
number of factual errors. This is undoubtedly so. I mention but a few. They
included that S had ‘shacked up’ with R and that they were not in a
‘permanent love relationship’. This was contrary to all the evidence. They had
lived together for at least a year prior to C’s birth; they intended marrying
afterwards; S had taken a months’ leave from work to care for R and the baby
after her birth, and did in fact do so, together with Mrs J.

1 See in this regard Townsend-Turner v Morrow 2004 (2) SA 32 (C) at 42ff. The case dealt of
course with the position before the Children’s Act came into operation. It was followed in
Kleingeld v Heunis & another 2007 (5) SA 559 (T) paras 6-10.

[28] The permanence of the relationship, and the love that Ms R felt for S,
are demonstrated in a diary that R kept before she gave birth, in which she
wrote to her unborn child saying that they both had to ‘hold on to life – so me,
you and your dad can be together soon . . . . He loves us so much . . .‘.
Although Ms R’s sister alleged that Ms R had confided to her before the birth
that Mrs J should look after the baby should Ms R die, there was no evidence
to support this and its seems improbable in the light of what was written in the
diary, which was not contested.

[29] Kgomo JP found too that the Js had brought C up as their own child
‘without any demur from any quarter’. In the light of the history of the litigation,
and of the process of reunification, described earlier, this conclusion has no
foundation.

[30] Even more extraordinary is the judge president’s conclusion that C
should not be uprooted from the ‘secure, familiar and warm environment that
she finds herself in’. In fact, C was living with her father and stepmother in
Paarl, in terms of the court order granted in the Northern Cape High Court,
and after the process of reunification, when Kgomo JP made his order.

[31] Ms Anderson also contends that the judge president came to incorrect
legal conclusions. I have set out the principles relating to care and
guardianship above. By virtue of s 21 of the Children’s Act, S, who was living
in a permanent life-partnership with R at the time of C’s birth, acquired full
parental responsibilities and rights in respect of C before the Js themselves
applied for such responsibilities and rights. At the time that they did so – in
August 2008 – the sections of the Act that would have allowed for them to
acquire such rights and responsibilities (ss 23 and 24, which permit a court to
grant care, contact and guardianship to an interested person) were not in
operation: they applied only from 1 April 2010. Of course, as I have said, the
high court would have had jurisdiction, as the upper guardian of all children, to
award such rights to grandparents.

[32] But as S argues, his inherent right as a biological father had to be
taken into account, subject, obviously, to whether it was in C’s best interests.
Note that s 7 of the Children’s Act attempts a codification of what factors must
be taken into account in determining what is in the best interest of a child. I
shall not deal with it since there is no dispute between the various experts
who have reported on C’s best interests, to which I shall return. But it is
significant that section 9 of the Children’s Act, in operation at the time when
the first order was made, was also not referred to nor applied by Kgomo JP. It
provides:
‘In all matters concerning the care, protection and well-being of a child the standard
that the child’s best interest is of paramount importance, must be applied.’
Given the fact that reunification of C and S had taken place and that it was
known to have been successful at the time of the first order, it could not have
been thought by any court that it was in her best interest that she be moved
from her family in Paarl and taken to the Js in Keimoes.

[33] Kgomo JP seemed to be oblivious of the law in this regard when he
ordered that the Js be awarded care and guardianship of C, and continued to
ignore the legislation (and the child’s best interests) in subsequent judgments
as well. He also ignored the orders of the Northern Cape High Court, made by
agreement, which required the parties to follow an integration process, as well
as the reports of psychologists that it had in fact run smoothly. The court also
seemed oblivious of the fact that S had already acquired parental
responsibilities and rights in respect of C, by virtue of s 21 of the Children’s
Act, and that it was in effect depriving him of those responsibilities and rights.

[34] The judge president’s finding that it would be in the best interests of C
that her care and guardianship be awarded to the Js, subject to S’s rights of
‘reasonable access’, was thus not warranted. It was based on factual errors
and a misunderstanding of the law. The appeal against it must succeed. I
shall deal with the order that should be made after considering the other
orders made by Kgomo JP. First, however, it is necessary to deal with the
judgment and order of Louw J in the Western Cape High Court.

The judgment and order in the Western Cape High Court of 5 March 2010:
Jurisdiction in matters concerning a child
[35] It will be recalled that after Kgomo JP handed down the order
discussed above, S sought an order that, pending the filing of a notice of
appeal in the Northern Cape High Court, that order be stayed. He also
obtained an opinion from a psychologist, Dr Bredenkamp, on the position then
of C. She reported that C had settled into the S family happily and
recommended that she remain with them in Paarl. (S has sought and been
given leave to file an additional report of Bredenkamp on C and the family,
and I shall deal with it briefly, together with the findings and recommendations
of the curator ad litem in due course.) A rule nisi was issued and then
extended to 10 February 2010.

[36] S’s application for confirmation of the rule came before Louw J. He
considered that the Western Cape High Court did have jurisdiction over C
because she was resident in its area of jurisdiction.  But the judge also
concluded, correctly in my view, that the court did not have the jurisdiction to
set aside or vary the order of another high court. Louw J nonetheless held that
as upper guardian of minors within its jurisdiction, the Western Cape High
Court had the power to make any order necessary for the protection of a child.
He buttressed this conclusion with reference to s 28(2) of the Constitution
which provides that ‘A child’s best interests are of paramount importance in
every matter concerning the child’. As Ms Anderson argued, this was
consonant with the decision of the full court in the Western Cape in J v J,2 by
which Louw J was bound, that a court is not only empowered, as upper
guardian of children within its jurisdiction, but also obliged to deal with all facts
relevant to the best interests of a child.

[37] It was clear to Louw J that it was in C’s best interests to continue living
with her father in Paarl. That obliged the court, it considered, to order a stay of
execution of the order of Kgomo JP pending the final resolution of the case in
the Northern Cape High Court. It so ordered. In my view the Western Cape

2 2008 (6) SA 30 (C) para 20.

High Court did have the jurisdiction to make the order in respect of C, who
was resident within its jurisdiction at the time. That order did not vary or set
aside the first order made by Kgomo JP: it merely suspended its execution
pending the appeal noted by S.

[38] That said, I would caution against a practice of forum shopping even in
cases concerning disputes over parenting rights and responsibilities. High
courts should not in general be faced with litigation requiring them in effect to
set aside an order made in another jurisdiction. And as a rule, since one is
entitled to assume that any order has been made in the best interests of a
child, should those interests change over time the court that made the initial
order should be approached for a variation. Much of the difficulty may now be
resolved with the enactment of s 29 of the Children’s Act, which came into
operation only in 2010. It provides that an application under ss 23 and 24 (for
parental responsibilities and rights by an interested party) may be brought in a
high court within whose area of jurisdiction the child is ordinarily resident.
Where that does not assist, however, reliance on formalism and a resort to
inflexible rules is to be discouraged, a matter to which I shall revert when
dealing with the second judgment in the Northern Cape High Court.

The second judgment and order in the Northern Cape High Court: 30 October
2009
[39] On 9 October 2009 S filed an application for leave to appeal against
the first order of 2 October. A week later the Js brought an urgent application
seeking the immediate implementation of the first order. It was set down for
hearing on 20 October. Mrs J, in her founding affidavit, asserted that S had
applied for leave to appeal only in order to circumvent the order of Kgomo JP.
In response, Deysel, on the instructions of S, explained why leave was being
sought, and annexed the application that had first served before Bozalek J in
the Western Cape High Court; a letter confirming that the Js had refused to
accept service of the application and the first report of Dr Bredenkamp. She
also attached a letter to the Js’ attorney in which she had invited them to
participate in a further assessment to be conducted by Dr Bredenkamp.

[40] But after S had obtained the first interim order from Yekiso J in the
Western Cape High Court – that C reside with him in Paarl – he decided not
to continue with the opposition to the urgent application: the costs of
instructing an attorney and counsel in the Northern Cape were beyond his
means. He filed a supplementary affidavit to this effect. Deysel also filed
another affidavit explaining that there would be no appearance for S on 20
October 2009 (the date determined by Kgomo JP in his first order for any
agreement reached as to S’s contact with C to be made an order of court)
since the filing of the application for leave to appeal had suspended the
operation of the order.

[41] Kgomo JP nonetheless struck the application for leave to appeal from
the roll with costs, and handed down a further judgment and order on 30
October. He felt constrained to do so by S’s ‘forum-shopping or forum-
hopping with the singular motive of avoiding the consequences of the order of
this Court . . .‘. The judge president had clearly been offended by the attempt
by S to act in his child’s best interest. And he reacted indignantly to a
statement by Deysel that one of the reasons for abandoning the opposition to
the J’s’ urgent application for the implementation of the first order was that
she had been advised that it was unlikely that the urgent application would be
heard over a weekend, and that an advocate would not be available. The
judge president said:
‘This statement is preposterous, far-fetched and ridiculous. A party cannot create
jurisdiction synthetically in another forum on some outlandish belief that counsel
might not be available to argue his case.’
He accused her also of being ‘mischievous’. And he continued:
‘Ms Deysel’s attitude and conduct is testimony to her utter ignorance of the Rules of
Court and her abject discourtesy to this Court by agitating non-appearance.’

[42] The judge president ordered that S could apply for leave to appeal only
with a ‘substantive application being made and on good cause shown’. He
ordered S to ‘deliver’ C to the home of the Js, and to pay the costs of the
application on the attorney and client scale. He also – astonishingly – granted

the Js ‘leave to bring an application for Contempt of Court . . . on the same
papers suitably supplemented’.

[43] The judgment regrettably evinces a bias against S. The intemperate
language used, and the complete failure to consider C’s interests, are to be
deplored. S does not rely on bias as a ground on its own in seeking to
overturn the order. But in my view, the argument that he stepped into the
arena by inviting the Js to bring an application for an order that S was in
contempt of court is sound. The invitation is explicable only on the basis that
the judge president was more concerned about legal niceties than the child’s
best interests. This is precisely what the Constitutional Court enjoined parties
in disputes concerning children not to do: AD and DD v DW & others (Centre
for Child Law as Amicus Curiae; Department of Social Development as
intervening Party).3 The court endorsed the view of the minority in this court
that the interests of children should not be held to ransom for the sake of legal
niceties.4 As Sachs J said, in endorsing the approach of the minority, a child’s
best interests ‘should not be mechanically sacrificed on the altar of
jurisdictional formalism’.5

[44] The judge president erred also in not alluding to Dr Bredenkamp’s first
report which had been placed before him. Whatever C’s best interests were
when she lived with the Js, they had to be reconsidered after she had gone to
live with S pursuant to the reintegration process. As Hurt J stated in P v P:6
‘I am bound, in considering what is in the best interests of G, to take everything into
account, which has happened in the past, even after the close of pleadings and in
fact right up to today. Furthermore, I am bound to take into account the possibility of
what might happen in the future if I make any specific order.’
See also J v J.7

3 2008 (3) SA 183 (CC) para 30.
4 De Gree v Webb 2007 (5) SCA 184 para 99.
5 Para 30.
6 2002 (6) SA 105 (N) at 110C-D.
7 Above para 20.

[45] The appeal against this judgment and order must also succeed. The
conclusions reached by Kgomo JP have no basis in fact or in law; evince bias
on his part; and fail to consider at all the only real issue: what was in C’s best
interests. The order that S pay costs on the attorney client scale was
completely without justification: he had acted in what he considered was his
child’s interest. S filed an application for leave to appeal against this order on
6 November 2009.

The third judgment and order of the Northern Cape High Court: 21 May 2010
[46] On 10 November the Js accepted the invitation of Kgomo JP to apply
for an order that S be found guilty of contempt of court. They added Deysel in
as a respondent for good measure. By the time it was heard Louw J in the
Western Cape High Court had ordered that C remain with her father in the
Western Cape pending the appeal against the first order.

[47] Kgomo JP considered the conclusion of Louw J, that he had jurisdiction
to determine where C should reside pending the appeal, to be incorrect. It
was the judge president’s view that once he had made the first order he was
functus officio: the custody issue, he said, was not pending. It had been
decided. That the judge president had struck the application for leave to
appeal from the roll because of S’s non-appearance (the fact that it had not
been set down apparently did not occur to him) seemed to be of no
consequence. Nor did the fact that C was resident in Paarl when the first
order was made – and that the Western Cape High Court had jurisdiction as
the upper guardian – feature in his judgment.  And of course the judge
president did not appreciate the fact that in making the first order he was
depriving S of his parental rights and responsibilities.

[48] Nonetheless Kgomo JP found that S was in contempt of his various
orders: ‘guilty of disobedience’. Although citing the principle that a breach of
an order must be deliberate and mala fide in order to constitute contempt of
court, Kgomo JP did not in fact apply it. S was clearly acting bona fide, in
accordance with an order of the Western Cape High Court and on legal
advice. He did not, however, find Deysel guilty of contempt of court. But the

order that S and Deysel pay the costs of the application (the latter de bonis
propriis) on the attorney client scale was without any justification. Indeed, Mr
Schreuder for the Js conceded that the orders were ill-founded. The appeal
against the third order must also succeed.

The best interests of C
[49] Ultimately this case is about C’s best interests. They have not been
served thus far by the Northern Cape High Court. It is clear now from the
extensive reports of Dr Bredenkamp and Ms Skelton that C is best off living
with her father and stepmother, A. She has settled comfortably in her home,
with her younger half-brother, and has developed a very strong bond with A
and her half-brother. She has also developed a warm and loving relationship
with her paternal grandparents and A’s parents.

[50] Dr Bredenkamp has conducted extensive psychological tests all of
which show C to be a happy child, apparently unscathed by the legal disputes
over her. Ms Skelton has interviewed many people associated with C, and
made recommendations about contact with the Js. S is quite willing to allow
them contact in the circumstances recommended by Ms Skelton, which I shall
make part of the order.  C herself indicated that she wished to live with the S
family and did not want to go back to Keimoes, although she did want to see
the Js in Paarl.

[51] It should be mentioned that Ms Skelton formed the view that the Js
were more concerned about their interests than those of C. Mr J (who, it will
be recalled is not in fact C’s grandfather) has firm religious views on the
importance of C living with them. And Mrs J believes (contrary to the evidence
in R’s diary) that R wanted C to live with her in the event of her death. None of
this is of importance since it is not in the child’s interest to live with the Js.

[52] I referred earlier to grandparents’ rights and responsibilities in respect
of their grandchildren, and to Townsend-Turner v Morrow in which Knoll J
referred to recent research on the important role that grandparents may play
in the lives of their grandchildren. That role is recognized in this matter and

discussed by Ms Skelton. But as she points out, C has formed a bond with her
paternal grandparents and with the parents of A. Indeed, she recommends
that contact between C and the Js be facilitated through A’s mother, Mrs A J,
and Ms Anderson agrees that this should be the case.

[53] Mr Schreuder for the Js did not attempt to argue that it was in C’s best
interest to live with the J’s. He accepted the soundness of the Bredenkamp
and Skelton recommendations. He did, however, submit that the Js should not
be ordered to pay the costs of the appeal. They had opposed it in the genuine
belief that C was best off living with them. I do not accept the argument. In the
face of all evidence to the contrary they have refused to accept that C is best
off living with her father, stepmother and half-brother. S has had to go to
extraordinary lengths to exercise his rights and to protect his child’s interests.
I see no reason to deprive him of the costs of the appeal.

[54] I record too that the litigation has not been in any of the parties’
interests. Clearly, after Ms R’s death in particular, emotions ran high. All
wanted to keep C with them. But had the Js not ambushed S at the funeral
with papers in respect of proceedings in the Children’s Court, and had all
concerned attempted to talk about her genuine best interests, they would not
have spent nearly five years embroiled in a dispute about her residence. This
was not only at great emotional cost to all, but also at great financial cost
which none of them could really afford. Fortunately C’s interests have been
served by Deysel who has acted pro bono. I endorse the views expressed by
Brassey AJ in MB v NB8 that mediation in family matters is a useful way of
avoiding protracted and expensive legal battles, and that litigation should not
necessarily be a first resort. Legal practitioners should heed s 6(4) of the
Children’s Act which provides that in matters concerning children an approach
‘conducive to conciliation and problem solving should be followed and a
confrontational approach should be avoided’.

[55] The following orders are made.

8 2010 (3) SA 220 (GSJ) paras 52 to 59.

A
1 The appeal against the whole of the order of the Northern Cape High Court
made on 2 October 2009 succeeds, with costs.
2 That order is replaced with the following:
‘(a) The first and second applicants’ application is dismissed.
(b) It is declared that the first respondent is the holder of full parental
responsibilities and rights in terms of s 18 of the Children’s Act 38 of 2005.
(c) C shall reside permanently with the first respondent.
(d) The applicants may have contact with C on a regular basis, which should
be arranged with Mrs A J, the mother of Mrs A S, and which should take place
at the home of Mrs A J or at a place agreed by Mrs A J and the first applicant.
All such arrangements should be discussed with the first respondent prior to
contact taking place.
(e) In the event that the parties experience difficulty in arranging contact they
must first attempt to resolve this through a mediator rather than through court
proceedings.’

B
1 The appeal against paragraphs 2, 3 and 4 of the order made by the
Northern Cape High Court on 30 October 2009 succeeds with costs.
2 The order is replaced with the following:
‘The first and second applicants’ application is dismissed.’

C
1 The appeal against the order made by the Northern Cape High Court on 21
May 2010 succeeds with costs.
2 The order is replaced with the following:
‘The application is dismissed with costs.’

_____________
C H Lewis
Judge of Appeal

APPEARANCES

APPELLANTS:

J S Anderson

Instructed by Haupt & van Zyl

Paarl

Law Clinic, University of the Free State

Bloemfontein

RESPONDENTS:

J J Schreuder

Instructed by Louw Kotzè & van Zyl

Upington

Rosendorff Reitz Barry

Bloemfontein

CURATOR AD LITEM:
A Skelton

Assisted by the Childcare Centre, University of

Pretoria
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE
SUPREME COURT OF APPEAL
MEDIA SUMMARY – JUDGMENT DELIVERED IN COURT OF
APPEAL

19 November 2010

STATUS: Immediate

S v J (695/10)

Please note that the media summary is intended for the benefit of the media and
does not form part of the judgment of the Supreme Court of Appeal

The Supreme Court of Appeal (SCA) today held that the appellant, a father of a child
born out of marriage, is the holder of full parental responsibilities and rights in terms
of s 18 of the Children’s Act 38 of 2005 and that the child should permanently reside
with him. The SCA further held that the child’s grandparents may have contact with
her on a regular basis.

The child’s mother and the appellant were living together at the time of the child’s
birth and intended to marry. The child’s mother died shortly after her birth. The first
respondent is the child’s maternal grandmother and is married to the second
respondent. The parties have been engaged in a lengthy battle for the custody and
guardianship of the child.

Numerous applications to court to have the child live with them have been made,
over the nearly five years of the child’s life, by the respective parties, with different
results. These have been made in the Northern Cape and Western Cape High
Courts. The appeal in the SCA was against three orders made by Kgomo JP in the
Northern Cape High Court that care and guardianship of the child be awarded to the
respondents, but that the appellant be given rights of contact – orders completely at
odds with the other orders made by both the Northern Cape and Western Cape High
Courts in previous litigation.

The SCA had to determine a number of issues: the best interests of the child; the
rights of unmarried fathers; whether the Northern Cape and Western Cape High

Courts had concurrent jurisdiction at the times their respective orders were made;
and the extent of grandparents’ rights in respect of children.

The SCA first drew attention to the fact that the law governing the rights of an
unmarried father changed during the course of the litigation. When the child was
born the Natural Fathers of Children Born out of Wedlock Act 86 of 1997 applied. It
did not confer custody and guardianship on an unmarried father even on death or
incapacity of the mother. The Children’s Act 38 of 2005 now applies to these
matters. In terms of the Act if the appellant had been living in ‘a permanent life
partnership’ at the time of the child’s birth, he would automatically have acquired
parental rights and responsibilities when the section came into operation on 1 July
2007.

In so far as grandparents’ rights and responsibilities are concerned, ss 23 and 24 of
the Children’s Act, which govern non-parental rights to care and guardianship
respectively, came into operation on 1 April 2010. Before that date grandparents had
no inherent rights or responsibilities and it was only a high court, as upper guardian
of a child, which could confer access, custody or guardianship on a grandparent.
This would be done only if it were in the best interests of a child – an assessment
that must be made having regard to the rights of the biological parents.

The SCA stated that Kgomo JP’s observation that the appellant had ‘shacked up’
with the child’s mother and that they were not in a ‘permanent love relationship’ was
contrary to all the evidence. The SCA found that Kgomo JP’s finding that it would be
in the best interests of the child that her care and guardianship be awarded to the
respondents, subject to the appellant’s rights of ‘reasonable access’, was not
warranted. His finding was based on factual errors and a misunderstanding of the
law. The appeal against it succeeded.

In considering the judgment of Louw J (considered by the SCA to be correct) in the
Western Cape High Court, which had stayed the execution of the order in the
Northern Cape High Court pending an appeal to that court, the SCA cautioned
against a practice of forum shopping even in cases concerning disputes over
parenting rights and responsibilities. High courts should not in general be faced with
litigation requiring them in effect to set aside an order made in another jurisdiction.
And as a rule, since one is entitled to assume that any order has been made in the
best interests of a child, should those interests change over time the court that made
the initial order should be approached for a variation. Much of the difficulty may now
be resolved with the enactment of s 29 of the Children’s Act, which came into
operation only in 2010. It provides that an application under ss 23 and 24 may be
brought in a high court within whose area of jurisdiction the child is ordinarily
resident.

The SCA held that the appeal against Kgomo JP’s second order (that the child be
returned to the grandparents) must also succeed. The conclusions reached by
Kgomo JP had no basis in fact or in law; evinced bias on his part; and failed to
consider at all the only real issue: what was in the child’s best interests. The order
that the appellant pay costs on the attorney client scale was completely without
justification.

The SCA further found that the appeal against the third order made by Kgomo JP
(that the appellant was guilty of contempt of court in failing to return the child to her
grandparents) must also succeed. Although citing a principle that a breach of an
order must be deliberate and mala fide in order to constitute contempt of court,
Kgomo JP did in fact not apply it. The appellant was clearly acting bona fide, in
accordance with an order of the Western Cape High Court and on legal advice. The
order that the appellant and his attorney pay costs of the application on the attorney
and client scale was without justification.

After considering extensive reports, the SCA held that the child’s best interests
would be served by placing her with the appellant and her stepmother. The SCA
recognised, however, the important role that grandparents may play in the lives of
their grandchildren.

Lastly, the SCA recorded that the litigation had not been in any of the parties’
interests. The SCA endorsed the views expressed in MB v NB 2010 (3) SA 220
(GSJ) that mediation in family matters is a useful way of avoiding protracted and
expensive legal battles, and that litigation should not necessarily be a first resort.

-- ends --