Background of the case
The case of P.D and Another v A.R and Another (D779/2023) [2024] ZAKZDHC 27 (17 May 2024) involved an unusual set of facts. The applicants, who were not blood relatives of the minor child, sought to establish structured rights of contact with the child. The only link of consanguinity between the parties was the rather tenuous one that the second applicant’s grandmother was the sister of the first respondent’s grandfather.
The arrangement between the applicants and respondents, who were the biological parents of the minor child, began when the child was two weeks old. Initially, the child would visit the applicants for a day, and when the child was a month old, she started to sleep over twice a week at the applicants’ home. Later, when the child was a year old, the applicants took care of her from Sunday afternoon to Friday afternoon as the respondents worked away from their home.
The applicants enrolled the minor child at a private school in Shelley Beach, which was approved by the respondents, and the applicants volunteered to pay the costs of this schooling. The arrangement prevailed for just over four and a half years until the respondents terminated it on 9 December 2022, deciding that the minor child would thereafter remain with them permanently, would not be returned to the applicants, and would be enrolled in a different school.
The applicants’ claim and the relief sought
In their notice of motion, the applicants sought various forms of relief, including an order that the application be heard as an urgent application in accordance with the provisions of Uniform Rule 6(12) and that the requirements pertaining to service and time periods be dispensed with. They also sought a rule nisi calling upon the respondents to show cause why certain orders should not be granted.
The applicants requested that pending the finalization of the application, the parties retain care and parental contact in respect of the minor child as provided for in Sections 23 and 33(1) of the Children’s Act 38 of 2005. They also requested that the Family Advocate conduct a thorough and comprehensive investigation into the affairs and the best interests of the minor child and provide the court with a report and recommendation regarding both parties’ parental responsibilities and rights in respect of the minor child’s primary care and the manner in which the applicants should exercise reasonable contact and access.
Furthermore, the applicants sought an order that the status quo of the minor child’s primary care and responsibility continue in a manner where the child would reside with the applicants from Sunday to Friday and with the respondents from Friday to Sunday. They also requested that the respondents be directed to allow the minor child to occupy her place at Creston College to continue her Group 5 education.
However, the court noted that the notice of motion did not explain the ultimate relief sought by the applicants, which was entirely irregular. The applicants had intended to rely on the findings of the Family Advocate to define the relief they finally sought, which the court found to be improper and a dangerous strategy.
The court’s assessment of urgency
The urgent application was enrolled for hearing on 6 February 2023, nearly two months after the respondents terminated their arrangement with the applicants. The respondents alleged that the matter was not, in truth, urgent. The applicants devoted approximately a page and a half of the founding affidavit to the issue of urgency, quoting from the Children’s Act and stressing their patience and tolerance of the respondents’ wishes. However, they did not explicitly discuss why the application was rendered urgent or mention the delay in bringing it. Significantly, the applicants did not indicate why they could not be afforded substantial redress at a hearing in due course.
The court noted that the applicants paid no heed to the provisions of Uniform Rule 6(12)(b), which requires an applicant to set forth explicitly the circumstances that render the matter urgent and the reasons why they claim that they could not be afforded substantial redress at a hearing in due course. The court referred to the case of M M v N M and Others [2023] ZAKZPHC 122, which approved the statement that harm does not found urgency, but rather, it is a mere precondition to urgency. An application will only be urgent if the applicant cannot obtain redress for that harm in due course.
The court also considered the Constitutional Court’s decision in Mukaddam v Pioneer Foods (Pty) Ltd and Others 2013 (5) SA 89 (CC), which explained that the right to have a dispute resolved by the application of law in a fair public hearing before a court does not include the right to choose the method of approaching and placing a dispute before a competent court. The process to be followed when a court is approached is for the court itself to determine.
Consequently, the court upheld the respondents’ argument that the matter was not urgent, and the application ought not to be permitted to find a place on the court’s roll. The court referred to the case of Commissioner for SARS v Hawker Air Services (Pty) Ltd; In Re Commissioner for SARS v Hawker Aviation Service Partnership and Others 2006 (4) SA 292 (SCA), which held that where an application lacks the requisite element or degree of urgency, the appropriate order is ordinarily to strike the application from the roll.
The court’s analysis of the applicants’ rights
The court was not inclined to merely strike the matter from the roll to enable it to remain alive, capable of again being brought before the court on proper notice. The court viewed the application as ill-conceived and unable to succeed, partly due to the deficiencies in the notice of motion and largely because the applicants had no right to demand contact with the minor child.
The court emphasized that a citizen unrelated to a minor child has no right to maintain contact with that child contrary to the biological parents’ wishes. The applicants did not allege that the minor child was at risk of any physical harm, and the well-being of the child was not threatened if an order was not granted in favor of the applicants. In fact, the applicants conceded that the respondents were not bad parents.
The Family Advocate also recommended that the minor child be cared for by the respondents. The court questioned the basis on which it could interfere with the respondents’ right to choose with whom their child interacts, given that they were good parents, well capable, and entitled to look after their daughter on their own terms.
The court found that the applicants were incorrect in stating that they were entitled in law and emotionally and psychologically entitled to let the minor child know that they had not abandoned her. The court emphasized that the applicants were not the minor child’s parents, even though the child had begun calling them “Mummy” and “Daddy” when she spent time with them.
The respondents admitted that the arrangement existed but maintained that they remained involved in all aspects of the minor child’s life. The first respondent stated that the applicants were welcome to visit the child and call her, but he would not allow her to reside with them any longer.
The court concluded that the proposed contact by the Family Advocate was inappropriate, as it failed to consider the rights of the respondents to enjoy, shape, and direct the life of their own daughter. The recommendation appeared to only consider the best interests of the applicants and not those of the minor child.
The court’s decision and order
The court held that parents are entitled to regulate the lives of their children and may determine with whom their children have contact and on what terms. The arrangement between the applicants and the respondents was acknowledged, and the applicants’ generosity with their time and money was recognized. However, the court emphasized that the applicants knew they were not the minor child’s parents when they entered the arrangement, and the respondents could not be compelled to recommence the arrangement against their wishes.
The court found that acceding to the Family Advocate’s contact proposal would diminish the respondents’ rights to manage their own daughter’s life without justification or reason. The first respondent’s observation that the application was an attempt at a “round about adoption of the minor child” was found to have more than a grain of truth.
The court agreed with the first respondent’s statement that the application was an utter abuse of the court’s processes. Consequently, the application was dismissed, and costs were awarded against the applicants on scale C.
The court made the following order:
The application was enrolled.
The application was dismissed.
The applicants were ordered to pay the respondents’ costs of suit jointly and severally, the one paying, the other to be absolved on scale A.
The court’s decision emphasizes the importance of respecting the rights of biological parents to make decisions regarding their children’s lives and the limited rights of third parties in such matters, even when they have played a significant role in the child’s life.
Questions and Answers
Q: What legal principles did the court rely on in determining the rights of the applicants? A: The court relied on the principle that a citizen unrelated to a minor child has no right to maintain contact with that child contrary to the biological parents’ wishes. The court also emphasized the importance of respecting the rights of biological parents to make decisions regarding their children’s lives.
Q: How did the court address the issue of urgency in the application? A: The court found that the applicants failed to comply with the requirements of Uniform Rule 6(12)(b), which requires an applicant to set forth explicitly the circumstances that render the matter urgent and the reasons why they could not be afforded substantial redress at a hearing in due course. The court relied on the cases of M M v N M and Others [2023] ZAKZPHC 122 and Mukaddam v Pioneer Foods (Pty) Ltd and Others 2013 (5) SA 89 (CC) in its assessment of urgency.
Q: What role did the Children’s Act play in the court’s decision? A: The court considered the provisions of the Children’s Act 38 of 2005, particularly Sections 23 and 33(1), which deal with parental responsibilities and rights. However, the court found that the applicants, being unrelated to the minor child, had no parental responsibilities and rights under the Act.
Q: How did the court view the recommendations of the Family Advocate? A: The court found that the Family Advocate’s proposed contact arrangement was inappropriate, as it failed to consider the rights of the respondents to enjoy, shape, and direct the life of their own daughter. The court emphasized that the recommendation appeared to only consider the best interests of the applicants and not those of the minor child.
Q: What is the significance of the court’s decision in this case? A: The court’s decision in P.D and Another v A.R and Another (D779/2023) [2024] ZAKZDHC 27 (17 May 2024) highlights the limits of third-party rights in child contact cases and reinforces the paramount importance of biological parents’ rights in determining their children’s best interests. The case serves as a reminder that, even when third parties have played a significant role in a child’s life, they cannot override the rights of biological parents without compelling reasons.
Q: What was the main issue in the case of P.D and Another v A.R and Another? A: The main issue in the case was whether the applicants, who were not blood relatives of the minor child, could establish structured rights of contact with the child against the wishes of the child’s biological parents, the respondents.
Q: How did the arrangement between the applicants and respondents regarding the minor child begin? A: The arrangement began when the minor child was two weeks old, with the child initially visiting the applicants for a day. When the child was a month old, she started sleeping over twice a week at the applicants’ home. Later, when the child was a year old, the applicants took care of her from Sunday afternoon to Friday afternoon as the respondents worked away from their home.
Q: What relief did the applicants seek in their notice of motion? A: In their notice of motion, the applicants sought various forms of relief, including an order that the application be heard as an urgent matter, a rule nisi calling upon the respondents to show cause why certain orders should not be granted, and an order that the status quo of the minor child’s primary care and responsibility continue in a manner where the child would reside with the applicants from Sunday to Friday and with the respondents from Friday to Sunday.
Q: How did the court assess the urgency of the application? A: The court found that the applicants did not explicitly discuss why the application was rendered urgent or mention the delay in bringing it. The applicants also did not indicate why they could not be afforded substantial redress at a hearing in due course. The court upheld the respondents’ argument that the matter was not urgent and ought not to be permitted to find a place on the court’s roll.
Q: What did the court say about the applicants’ rights in relation to the minor child? A: The court emphasized that a citizen unrelated to a minor child has no right to maintain contact with that child contrary to the biological parents’ wishes. The court found that the applicants had no right to demand contact with the minor child, given that the respondents were good parents, well capable, and entitled to look after their daughter on their own terms.
Q: What was the Family Advocate’s recommendation regarding the minor child? A: The Family Advocate recommended that the minor child be cared for by the respondents.
Q: How did the court view the Family Advocate’s proposed contact arrangement? A: The court found that the proposed contact by the Family Advocate was inappropriate, as it failed to consider the rights of the respondents to enjoy, shape, and direct the life of their own daughter. The recommendation appeared to only consider the best interests of the applicants and not those of the minor child.
Q: What did the court say about the rights of parents in regulating their children’s lives? A: The court held that parents are entitled to regulate the lives of their children and may determine with whom their children have contact and on what terms.
Q: How did the court rule on the application? A: The court dismissed the application, agreeing with the first respondent’s statement that the application was an utter abuse of the court’s processes.
Q: What order did the court make regarding costs? A: The court ordered the applicants to pay the respondents’ costs of suit jointly and severally, the one paying, the other to be absolved on scale A.
Written by Bertus Preller, a Family Law and Divorce Law attorney and Mediator at Maurice Phillips Wisenberg in Cape Town and founder of DivorceOnline. A blog, managed by SplashLaw, for more information on Family Law read more here.
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