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CASE NO. 366/2006

IN THE HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

In the matter between:

TANIA VAN WYK APPLICANT

and

JOHANNES BAREND MACHIEL VAN WYK 1^ST RESPONDENT

COMMISSIONER OF CHILDREN’S COURT, VRYBURG 2^ND RESPONDENT

______________________________________________________________________

REASONS FOR JUDGMENT

______________________________________________________________________

MOGOENG JP.

[1] This matter came before me on an urgent basis on 27 March 2006. I made an order reaffirming the Applicant’s custody over the two minor children but reserved reasons. These then are the reasons for the order.

[2] The Applicant is the mother of the two minor children about whose custody this urgent application is. The first Respondent is their father. The second Respondent is the Commissioner of the Children’s Court, Vryburg.

[3] The Applicant and the first Respondent were married and their marriage relationship came to an end in terms of the order of the Transvaal Provincial Division on 07 February 2003. In terms of that order custody of the minor children, "H", a boy now aged 11 years and "S", a girl presently 7 years old, was awarded to the Applicant.

[4] During the winter of 2005 and before the September/October school vacations, it is common cause that the Applicant’s boyfriend, one Andre, touched the private parts of the little girl, "S", who was then naked. This conduct is unacceptable to both the Applicant and the first Respondent. The undisputed version of the Applicant is that she was so outraged by the report about this incident, given to her by her daughter, that she rebuked Andre and referred both Andre and the little girl to a psychologist, separately.

[5] The first Respondent got to know about this touching incident, apparently during the September/October school vacations in 2005 and initiated an investigation by the police into the matter. In December 2005 the children went to their father in terms of his right of access as determined by the High Court as at the time of the divorce. It was during this period that he caused a social worker to compile a report which culminated in the Children’s Court in Klerksdorp, where the first Respondent was temporarily resident, being approached to determine whether the two minor children were children in need of care in terms of the Child Care Act.

[6] The children were, on their second appearance in the Children’s Court, ordered to remain in the temporary custody of the first Respondent, apparently as ‘a place of safety’ pending the determination by the Children’s Court whether or not they were children in need of care. All this was done without any prior notification to the Applicant, in whose custody the children were. Afterwards, the matter was transferred to the Vryburg Children’s Court where the first Respondent permanently resides. It was then postponed from time to time. The Applicant learnt on 08 March 2006 that the matter had been postponed to 17 May 2006.

[7] Realising that she would, by 17 May 2006, have been debarred from access to her children for about five months since the order, effectively giving temporary custody of the children to the first Respondent was made, the Applicant brought an urgent application to this Court for the children to be returned to her.

[8] For the reasons I need not go into, it is not necessary to consider all the issues involved in this matter and all the circumstances surrounding the granting of the order which effectively deprived the Applicant of custody of her children.

[9] What essentially happened in this matter is that the first Respondent has followed a round-about way of effectively reversing, through the Children’s Court, the High Court order in terms of which custody of the minor children was awarded to the Applicant, and to now have that custody temporarily awarded to him. Instead of the children being taken to a suitable place or a place of safety within the definition and context of the Child Care Act, they were given to the first Respondent. He has replaced the Applicant as the custodian parent. From the totality of the facts at this Court’s disposal it appears that, that is what he has been desiring all this time. The children have now been uprooted from the institutions of learning they have been attending and the environment to which they are accustomed and in which they have been living. Clearly, they have now been enrolled in new schools where the first Respondent resides permanently.

[10] I may add that the Applicant has not been accused of any wrongdoing on her part, which could be said to have justified her losing custody of the children, albeit on a temporary basis. It is her boyfriend, whom she had rebuked for his conduct and sought help for him and for the girl, who did something wrong once. It is not even said why the minimal punishment meted out on "H" by Andre made it necessary to also have him kept by his father. The real complaint seems to be about what Andre did to "S". It is not clear why "H" was also made the subject-matter of an enquiry in terms of the Child Care Act.

[11] As I said above, the first Respondent has succeeded to have the Applicant deprived of custody of the two minor children. He has effectively been given custody of the minor children, something which the Act in terms of which he approached the Children’s Court makes no provision for. The Child Care Act defines a place of safety and that definition does not include the home of a parent to whom the custody was not awarded. It is evident even from s 15 that the powers of the Children’s Court do not extend to that. The permanent residence of the first Respondent in the Vryburg area, the first Respondent and his new wife were never assessed for suitability as a temporary place of safety. It is only the house of the relatives he was visiting in Klerksdorp that was evaluated. Of crucial importance is that in the absence of even a superficial evaluation, it is not known whether the first Respondent and his current wife are in a position to look properly after the children.

[12] The order in terms of which the children were handed to the first Respondent and his new wife ignores the need to ensure that the first Respondent is himself not as dangerous to the children as the Applicant and Andre are said to be. It also incompetently interferes with the High Court order in terms of which custody was awarded to the Applicant. This undermining of the High Court order cannot be condoned.

[13] This Court as the upper guardian of the children and with the inherent powers it has, cannot allow the best interests of the children, flowing from the Transvaal Provincial Division custody order, to be trodden upon while it is sitting back idly. Legal technicalities will not be allowed to be exploited at the expense of the normal life of the minor children. They will also not be allowed to bypass a High Court order. Accordingly, in terms of the order made by this Court on the date of hearing, the validity and effectiveness of the High Court order which gave custody of the minor children to the Applicant was reaffirmed, and the rights of the parents in relation to their children are to be regulated in terms of that order with immediate effect, pending the outcome of the enquiry by the Children’s Court and the possible variation of the High Court order by the High Court. The children are therefore to be handed back to the Applicant without further delay.

[14] The first Respondent took three points in limine. The first is that the notice of motion followed the format of form 2 instead of form 2a. Nothing much needs to be said about this point, suffice it to say that I have not been told what prejudice to the first Respondent this has occasioned. I find this point to be devoid of merit. The second point is that this matter is not urgent since the order depriving the Applicant of custody of the children was made some time back and that the Applicant had settled all the papers for this application by 14 March 2006 but only served them on the first Respondent on 24 March 2006, thus leaving the first Respondent with very little time to respond. The finalisation of the enquiry has indeed been pending for far too long. Be that as it may, when the Applicant learnt for the first time on 08 March 2006 that the matter had been postponed to 17 May 2006, she said that she immediately caused papers to be drawn in Paarl in the Western Cape Province, whereafter they were dispatched to her correspondent attorneys in Mafikeng for filing and for service on the first Respondent who is not resident in Mafikeng. All this took time and explained why the first Respondent was served late. This matter must be regarded as urgent every day that the Applicant is effectively denied access to her minor children and deprived of custody of her children, for something that the first Respondent had knowledge of several months before the granting of the order, and in violation of a High Court order. The children’s best interests should in any event not be compromised owing to a parent’s failure to act promptly. Besides, the need to address the issues before me overrides any technical objection to urgency. The third issue is that of lis pendens. This Court does not seek to usurp the function of the Children’s Court or to prevent the Children’s Court from proceeding with the enquiry in terms of the Child Care Act. It seeks only to ensure that the Applicant has access to her minor children and to restore to her the custody of the minor children rather than leaving it to the first Respondent who has been able to, and, without this Court’s intervention, can still retain that custody for as long as the enquiry may be further prolonged.

[15] The manner in which the first Respondent caused this matter to be handled, borders on an abuse of process considering that when the first Respondent was first told of Andre’s unacceptable conduct in the winter of 2005, he released the children to the Applicant after they had come to visit during September/October 2005. That process is apparently still underway. It is not clear what had subsequently happened at least two months later, to render the matter so urgent that the Children’s Court had to be approached without any prior notification to the Applicant, to obtain the aforementioned controversial custodial order.

[16] It is for these reasons that the order of 27 March 2006 was made.

__________________

M.T.R. MOGOENG

JUDGE PRESIDENT OF THE HIGH COURT

APPEARANCES

DATE OF HEARING : 27 MARCH 2006

DATE OF JUDGMENT : 30 MARCH 2006

COUNSEL FOR APPLICANT : ADV J.S. ANDERSSEN

COUNSEL FOR RESPONDENTS : ADV H.T. HATTING

ATTORNEYS FOR APPLICANT : KGOMO MOKHETLE & TLOU ATTORNEYS

(Ins. by Louw-Deysel Prokereurs)

ATTORNEYS FOR RESPONDENTS : RONNIE MOKALE MOSHIDI

(Ins. by HJ Hatting H Prokureurs)

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