Thudinyane v Edward (SA 17 of 2005) [2012] NASC 22 (12 October 2012);
CASE |
IN THE SUPREME COURT
OF NAMIBIA
In the matter between:
I | Appellant |
and
ALBINUS | Respondent |
Coram: SHIVUTE CJ
and MARITZ JA
Heard: 6 July 2006
Delivered: 12 October
2012
____________________________________________________________________
APPEAL JUDGMENT
____________________________________________________________________
SHIVUTE CJ (MARITZ JA
CONCURRING):
The
respondent (then as applicant) brought application on notice of
motion in the High Court seeking, from the appellant (cited as the
respondent in the proceedings in the Court below),
among
other things, an order granting him access to his minor child born
outside marriage. The appellant is the child’s mother. The
respondent has accepted the legal position that he had no parental
authority in respect of his child - who was born out of wedlock -
but maintained that he was merely seeking reasonable access to the
child. By seeking this relief, the respondent claimed to restore the
status
quo
which he asserted had existed prior to the end of 2000 when he was
granted access to the minor child by the appellant. The respondent
further alleged that the appellant through her actions tacitly
agreed to or created visiting rights which he was desirous of
maintaining. It was also the respondent’s allegation that the
appellant had waived any bar and/or restriction which could possibly
prevent him from such access which existed prior to the end of 2000.
The respondent, however, rightly in the end abandoned this
last-mentioned proposition when the appellant counteracted it with
ample authority to the contrary. The respondent argued that in terms
of Article 15(1) of the Constitution,1
it was in the best interest of the child to know her biological
father and to be cared for by him.
The appellant did not
dispute that the respondent was the natural father of the child but
denied that, through her actions, she had tacitly agreed to grant
the respondent any of the rights which he was seeking to enforce in
these proceedings. Appellant alleged that the respondent had ceased
to visit the child and, from the child’s point of view, simply
vanished for an extended period. She submitted that it was due to
his absence for a period of four years that he, in effect, had
become a stranger to the child. She maintained that on the occasions
when the respondent visited the child before his disappearance, he
was never with the child for a period long enough to establish what
her needs were.
Background
It is common cause that
the appellant and the respondent were involved in an intimate
relationship for three years. A baby girl was conceived and born of
this relationship. The relationship between the parties ended
shortly after the birth of their child. The respondent nevertheless
continued to visit their child intermittently and for short periods
once during each of the following months: June, July, September,
October and December 2000 as well as January, April, May, June and
December 2001.
The respondent alleged
that when, after his return, he had attempted to regain access to
the child by approaching the appellant for her consent, his efforts
were met with blatant refusals from the appellant. His legal
representative also attempted to ascertain the appellant’s
banking details so that the respondent could pay maintenance. This
was corroborated by an affidavit by the respondent’s legal
practitioner. Appellant denied these allegations.
A letter was addressed
to the appellant on 21 May 2002 by the respondent’s legal
practitioners requesting access to the child on every second
weekend. Appellant’s legal practitioners replied on 13 June
2002 offering the respondent structured access. The respondent’s
legal practitioners replied on 16 September 2002 by merely stating
that the respondent ‘is happy to go on as he has done so far,
to pay maintenance on a monthly basis and to visit the minor child
when it is suitable to (the appellant)’. This was interpreted
by the appellant to be a rejection of the offer, which was intended,
according to her, to be structured. The appellant maintained that
circumstances had in the meantime changed: she got married to
another man and the child had grown accustomed to her stepfather.
She was therefore no longer prepared to agree to the structured
access previously offered. The appellant submitted that, because of
the change in circumstances, it was not in the child’s best
interest that the respondent should be allowed access to her. The
appellant maintained that access would ‘only create confusion
in the relationship between the child and her stepfather, who has
been supporting her up to now’.
In his replying
affidavit, respondent says that structured access to the child had
been his wish all along and that he was unable to recall why he had
responded, through the mouth of his legal practitioner, in the
manner he did, adding that: ‘I can only surmise that it is a
result of a communication between me and my legal practitioner’.
The application was
called before Shikongo AJ who, having heard arguments by counsel on
both sides, directed that the application be referred for a hearing
of oral evidence and that reports of evaluation of the parties had
to be compiled and submitted by appropriate personnel from the
Ministry of Health and Social Services or by a mutually agreed on
child or clinical psychologist on the question whether access by the
respondent to the minor child would be in the best interest of the
child. This was confirmed in a letter from the Registrar of the High
and Supreme Courts dated 14 July 2005.
Parties communicated
with each other with the view to effectuating the directives given
by the learned Judge. On 10 August 2005, however, the learned Judge
handed down his ruling on the application, without first hearing the
evidence which he had previously ordered should be heard. In it he
ordered that the respondent be granted access to the child as per
Annexure ‘A’ to the notice of motion2
and furthermore ordered the appellant to pay the costs of the
application.
The issues that called
for determination by the Court below were the following:
Whether or not it was
in the best interest of the minor child that access be granted to
the respondent; and
Should the Court answer
the aforementioned question in the affirmative, what are the terms
and conditions, if any, on which the said access should be granted?
Findings by the High
Court
The learned Judge gave
the following explanation for giving judgment prior to having heard
oral evidence, including expert evidence, which he had initially
deemed necessary:
'My follow up inquiries with the
Registrar’s office on the expected time frame within which
aforementioned directives would be attended to, however, revealed
that the estimated duration of the process itself might defeat the
stated object of obtaining a just and especially, an expeditious
decision. In this regard, I was alerted to the fact, that besides the
likelihood that adjudication on the envisaged oral evidence may
eventuate only sometime after February 2006, the finalization of the
welfare report, assessed against past trends, is unlikely to be in
the shortest period of time as optimistically wished for.
Accordingly, and considering the
interest of the parties in securing expeditiously the pronouncement
of this court on the issue brought before it, and taking into account
that the further evidence sought mero motu, would have been
supplementary to that proffered by the litigants themselves, I am
inclined and have decided to proceed with pronouncing myself on the
issues raised and argued by the litigants in this matter.'
With regard to the issue
of the best interest of the minor child, it was found that the
respondent could not rely on a bond having developed between the
child and himself. The Court below further made a finding that it
was in the best interest of the child to maintain contact with her
biological father and to be cared for by him. The Court applied the
dictum of the South
African Supreme Court of Appeal in T v M
1997 (1) SA 54 (A) that, in the absence of any factors which are of
such a nature that the welfare of the child demands that he/she be
deprived of the opportunity of enjoying access to the parent in
question, it should be in the best interest of the child that access
by the father be granted.
In deciding whether the
respondent’s proposed access as per Annexure ‘A’
of his notice of motion should be granted, the High Court decided
that the same reasoning was to be adopted in relation thereto. The
learned Judge found that there were no factors militating against
allowing such access and that, having two loving father figures even
if one was not present on a permanent or continuous basis, could
hardly be said to be against the interest and/or welfare of the
minor child. The Court therefore decided that it was in the best
interest of the minor child that such access, as outlined in
Annexure ‘A’ to the notice of motion, be granted.
Before I turn to
consider counsel's arguments on the reasoning and findings of the
Court a quo, I should first deal with an issue that has
affected this appeal. The appeal was heard by me, together with my
Brothers Maritz JA and O’Linn AJA. Our Brother O’Linn
AJA became indisposed at the time the judgment was circulated for
his consideration. To our regret, his health has not improved since
then and he remains indisposed and unable to further deal with the
appeal. The legal position in such an eventuality is settled:
Pursuant to the provisions of s 13(4) of the Supreme Court Act, 15
of 1990 and as discussed by this Court in earlier judgments, amongst
others, in Wirtz v Orford and Another 2005 NR 175 (SC), my
Brother Maritz JA and I can validly and properly finalise the
matter, provided we agree on the outcome of the appeal.
Counsel’s
submissions on appeal
Proceeding now with the
consideration of arguments advanced by counsel: the appellant was
represented by Mr G Dicks while Mr Mouton argued the appeal on
behalf of the respondent. It was submitted on behalf of the
appellant that the Court below correctly referred the matter for
oral evidence and rightly ordered a welfare report or the report of
a child or clinical psychologist to be produced in order to
ascertain whether granting access would be in the best interest of
the minor child. Counsel, however, argued that the Court below erred
in not following through with the directives it had issued. Counsel
continued to advance argument that the finding by the Court below
that it was in the minor child’s best interest to grant
respondent access to the child was erroneous since no enquiry was
conducted to determine what is in the best interest of the minor. He
accordingly moved for an order remitting the matter to the High
Court to hear evidence of the parties and experts.
Counsel for the
respondent, on the other hand, strenuously argued in support of the
findings by the Court below. Counsel submitted that the High Court
correctly applied the facts in concluding that it was in the child’s
best interest that access to her be granted to the respondent. The
respondent accordingly urged for the confirmation of the order of
the Court below granting access and the issue of the extent
of access to be referred to that Court for determination.
Issues on appeal
At the commencement of
the hearing of the appeal, the appellant made application for
condonation for non-compliance with certain rules of the Rules of
Court and for reinstatement of the appeal. Counsel for the
respondent indicated that the application was no longer being
opposed. Having been persuaded that a case had been made out for
relief, the application was granted. Counsel on both sides were
broadly in agreement with the law applicable to the facts of the
case. Their differences lie in the application of those principles
to the facts. In addition to the heads of argument filed in terms of
the Rules of Court, counsel were requested to prepare supplementary
heads of argument on the applicability of the United Nations
Convention on the Rights of the Child (the Convention) and Article
15(1) of the Namibian Constitution (the Constitution) to the matter.
Counsel for parties were ad
idem and
submitted as follows regarding the applicability of the Convention
to Namibia: Article 63(2)(e)
of the
Namibian Constitution provides that the power to agree to the
ratification or accession to international agreements which have
been negotiated and signed by the President of Namibia or his
delegate vests in the National Assembly. The Convention was signed
by Namibia on 26 September 1990 and ratified on 30 September 1990.
Accordingly, and in conformity with Article 1443
of the Namibian Constitution, the Convention became part of Namibian
law.
The best interest of the
child is the paramount consideration in any investigation or
decision concerning a child directly or indirectly. This is evident
from the relevant provisions of the Constitution as well as the
Convention. Since parties are in agreement concerning the legal
principles governing this appeal, the issue remaining for decision
is whether the Court below was correct in deciding the
application without hearing the evidence on the issues that it had
identified required oral hearing. The determination of the scope and
ambit of what is in the best interest of the child in the context of
granting access by a parent will undoubtedly be informed by relevant
legal principles followed by a factual application of those
principles. The genesis of any substantive legal discussion should
be the Constitution. Article 14(3) of the Namibian Constitution
should be the starting point in the consideration of the right of
the child. The Article provides that:
‘The family is the natural and
fundamental group unit of society and is entitled to protection by
society and the State.’
As already mentioned,
Article 15(1) which is more on the point makes provision, amongst
other things, for the
right of each child to know and be cared for by his or her parents,
as far as possible. This last qualification is vital, in that it is
not an absolute right, as it remains a factual question whether it
is in the best interest of the child that such a right be granted.
Furthermore, as alluded to by counsel, in Namibia, international
agreements such as the Convention, appear to have similar force of
law as accorded to legislation, in the absence of any constitutional
provision or Act of Parliament contradicting the law or agreement in
question. The Convention refers profoundly to the child’s best
interest being paramount in any decision concerning the child. It
employs a language similar to that found in Article 15(1) of the
Constitution. It says in article 7(1) that the child shall have ‘…as
far as possible, the right to know and be cared for by his or her
parents’. In terms of article 7(2) of the Convention, State
Parties are under obligation to ensure implementation of these
rights in accordance with their national law. The provision
regarding ‘as far as possible’ the right to know and be
cared for by their parents must be read against the preamble of the
Convention that, like Article 14(3) of the Constitution, places much
emphasis on the family as a unit and the need to afford the
necessary protection to its members and particularly children so
that it can fully assume its responsibilities within the community.
The preamble to the Convention also recognizes ‘… that
the child, for the full and harmonious development of his or her
personality, should grow up in a family environment, in an
atmosphere of happiness, love and understanding’. Article 3(1)
of the Convention enjoins State Parties to the Convention to
‘undertake to ensure the child such protection and care as is
necessary for his or her well-being, taking into account the rights
and duties of his or her parents, legal guardians, or other
individuals legally responsible for him or her, and to this end,
shall take all appropriate legislative and administrative measures’.
It is evident therefore that decisions involving children should be
informed by the above constitutional imperatives and the need for
Namibia to comply with its international obligations in terms of the
Convention.
Numerous cases which all
have a bearing on the main issue to be determined were cited by
counsel on both sides and it is not necessary to recite them here.
Save to say that I had regard to them in coming to the conclusion I
have arrived at in this matter. One of such authorities, however,
stands out as being prominent and to the point and this is the
decision of the South African Supreme Court of Appeal in B
v S 1995 (3) SA 571 (A). It is necessary to
single it out. At page 584H of the judgment, Howie JA, writing for
the Court, observed that there was no onus on the natural father, in
an application for granting access to his child to show ‘a
very strong and compelling ground’ why he should have access.
Such application in substance involves judicial investigation into
the child’s best interest. The learned Judge of Appeal went on
to remark at 584I-585B as follows:
‘In addition it seems to me to
be necessary to lay down that where a parental couple's access (or
custody) entitlement is being judicially considered for the first
time - in other words where there is no existing Court order - there
is no onus in the sense of an evidentiary burden, or so-called risk
of non-persuasion, on either party. This litigation is not of the
ordinary civil kind. It is not adversarial. Even where variation of
an existing custody or access order is sought, and where it may well
be appropriate to cast an onus on an applicant, the litigation really
involves a judicial investigation and the Court may call evidence
mero motu. A fortiori that is so in a “first
time” situation. And it is irrelevant in this regard whether
the child concerned is legitimate or illegitimate.’ (Reference
to authorities omitted.)
At 585E-F the learned
Judge made the following pertinent remarks:
‘Moreover, if the dispute were
properly ventilated by way of as thorough an investigation as may
reasonably be possible, it is … difficult to envisage when the
welfare of the child will not indicate one way or the other whether
there should be access. That presupposes, of course, that all the
available evidence, fully investigated, is finally in. It
follows that if a Court were unable to decide the issue of the
child's best interests on the papers, it would not let the matter
rest there. While there might often be valid reasons (for
example, expense or the nature of the disputed issues) for not
involving expert witnesses, at the least the Court would require, and
if necessary call, oral evidence from the parties themselves in order
to form its own impression (almost always a vital one) of their worth
and commitment. Because the welfare of a minor is at stake, a Court
should be very slow to determine the facts by way of the usual
opposed motion approach, which would be inappropriate if it left
serious disputed issues of fact relevant to the child's
welfare unresolved.’ (Reference to authorities omitted and
emphasis supplied.)
I am in respectful
agreement with the above dicta. Granted that the superior
courts are the upper guardians of minor children it makes sense that
these proceedings should take the form of a judicial inquiry. In the
present case, the initial approach of the Court below to refer the
matter for oral evidence was correct. In my view, there were many
issues of fact in dispute between the parties which should have been
dealt with at the oral hearing. Furthermore, although the appellant
did not hand in the report compiled by a clinical social worker who
apparently evaluated the appellant and her family, the Court below
was informed of its availability and should have requested the
report and given the respondent an opportunity to dispute it if so
advised. This is in line with reaching a just finding.
The appellant had no
issue with granting unstructured access to the minor child by the
respondent in the past. Her main contention with the access in
question seems to revolve around the prolonged absence of the
respondent in the minor child’s upbringing and the changed
circumstances in her and the child’s life. She also appears to
have taken issue with the respondent’s degree of attachment
and commitment to the minor child; the underlying motives for
bringing the application for access at a stage when the minor child
had settled in with her new family; the allegation that the minor
child had grown to consider her stepfather as her ‘real
father’, and the impact the sudden access may have on the
minor child.
The Court below
reasoned that the sooner any possible
confusion created by access to the child after the changed
circumstances was tested the better and that it was tolerable for
the child to have two father figures, even if one was not permanent.
I am not in agreement with this reasoning, as it evinces a certain
degree of indifference to the minor’s best interest.
Doubtless, ‘the best interest of the child’ includes the
child’s emotional and psychological wellbeing. Neither this
Court nor the Court below could determine these without assistance
of expert evidence. The Court below therefore
erred in not seeing through the directives it had given to hear oral
evidence. It
has emerged from the papers that after the learned Judge had ordered
the application to be referred to the hearing of the evidence,
counsel intimated in Chambers that the evidence of the parties would
not take the application any further, but that it was necessary to
hear expert evidence. While the parties were preparing to obtain
reports from experts, the judgment granting access was handed down.
I think that the Court below
erred in this
approach. Having ordered the application to be referred to the
hearing of oral evidence, the Court below
could not proceed
to decide the application without affording the parties an
opportunity to address it on the effect of deciding the application
without hearing evidence. As this Court pointed out in Namib
Plains Farming and Tourism CC v Valencia Uranium (Pty) Ltd and
Others 2011 (2) NR
469 (SC), at par 40, when at some stage of the proceedings, parties
are limited to particular issues either by agreement or a ruling of
the Court, as a general principle, the Court cannot unilaterally
alter the position without affording the parties an opportunity to
make submissions on the proposed new tack in the course of the
proceedings.
With regard to other
findings by the Court below, I must note that, whilst I agree in
principle with the finding that save for the prolonged absence of
the respondent there did not appear to be other factors present, at
least on the papers, which tended to show that access may not be in
the child’s best interest, I am concerned that the Court below
did not appear to have considered that there may be a
possibility that the child’s emotional and psychological
balance may be disturbed by the sudden introduction of another
father figure she may no longer have any recollection of. This is an
important factor in deciding whether or not access should be ordered
at this stage of her development and, if so, how she should be
introduced to the notion. It cannot be decided on affidavit and as
such the Court below should have taken the matter further by
obtaining expert evidence.
In the view I take of
the matter, access should not have been granted until it had been
determined after a thorough investigation of all the available
evidence whether it would be in the best interest of the child to
grant access. The dilemma, of course, is that a long time has passed
and it raises the question how the matter should now proceed. The
child has grown older in the meantime and, with that, has
undoubtedly advanced intellectually, became evolved psychologically
and acquired more adaptive and social skills – all of which
affect her level of maturity and her readiness to be introduced to
her natural father. I am of the opinion that the type of enquiry
that was ordered by the Court below is essential and indispensable
in the circumstances of this case and that it should take the
child’s current level of intellectual and psychological
development into account. This Court is not in a position to conduct
such enquiry. The matter should therefore be remitted to the High
Court for that Court to hear oral evidence as inter alia
contemplated in the initial order that Court had issued. That Court
is best suited to deal with the matter. It is thus necessary to
engage the services of professional persons, such as social workers
and/or a child psychologist to assist the Court hearing the resumed
application whether the child will adapt to the introduction of
changes in her life at this stage. The remarks of Howie JA made
against the background of similar circumstances in B v S (above)
are apt. He said at 587D-E:
‘[I]t may well be that access
will be in the child’s best interests and that he should not be
disadvantaged by respondent's refusal of access (if unjustified) or
by the inadequacies inherent in forensic procedure. If the evidence
on remittal shows that time and circumstance have driven an
unshakable wedge between appellant and himself, so be it. On the
other hand, if that does not turn out to be the case, then there is
still sufficient left of his formative childhood to permit paternal
access to operate to his benefit if access be found to be in his best
interests.’
I am persuaded that
remitting the matter to the High Court for the hearing of evidence
will certainly be in the minor child’s best interest in the
circumstances of this case and be in line with article 9(3) of the
Convention which provides that:
‘States shall respect the right
of the child who is separated from one or both parents to maintain
personal relations and direct contact with both parents on a regular
basis, except if it is contrary to the child’s best interest.’
The possibility that the
respondent may not pursue the application in the event that remittal
is ordered should not be discounted. To guard against such
possibility, the respondent as the architect of the application for
access should be put to terms to ensure that he prosecutes the
application if he is still so minded or advised. This will be
reflected in the order below.
Costs
As to the costs of the
appeal, counsel for the appellant argued that if the decision of the
Court below is set aside, then the appellant is successful
and should therefore be awarded the costs of the appeal. Counsel for
the respondent, on the other hand, submitted that if the appeal is
dismissed, the respondent is entitled to costs. However, if the
appeal is allowed, either the appellant be ordered to pay the costs
of the appeal or each party should pay his or her costs. Counsel
argued that there was neither onus on the respondent to give oral
evidence in the Court below nor had any allegation of wrong doing
been levelled against the respondent for the failure to hear
evidence. My own view on the issue of costs is that as far as the
costs of the application in the High Court are concerned, those
should be reserved for determination by the Court that will hear
evidence and dispose of the application. As to the costs of the
appeal, I am of the view that although the current proceedings are
not of the ordinary civil kind, the appellant was entitled to appeal
against a clearly erroneous judgment and order of the Court below.
The respondent on the other hand had a choice to either abide the
decision of this Court or to oppose the appeal. Having elected to
oppose the appeal and the appellant essentially being successful,
the respondent should be ordered to pay the costs of appeal at the
very least limited to his opposition of the appeal.
Order
The order similar to the
one made in B v S (above) in relation to remittal and
consequential issues would be appropriate and I propose to borrow
liberally from the order made in that matter. The following order is
accordingly made:
The appeal succeeds.
The order by the High
Court is set aside and there is substituted for the following
order:
‘(a) The
application is referred to oral hearing of evidence on a date to be
arranged with the Registrar on the question whether access by the
applicant to the minor child will be in the best interest of the
child, and if so determining the extent to which such access be
granted.
(b) The evidence referred
to in paragraph (a) above will be that of the party who elects to
testify and any witnesses he or she may call as well as witnesses
that may be called by the Court.
(c) The Directorate:
Child Welfare Services in the Ministry of Gender Equality and Child
Welfare is hereby directed to investigate the parties’
respective circumstances for the purpose of subsequently reporting in
writing to the Court (with copies to each party) on the question
referred to in paragraph (a) above.
(d) The Registrar is
directed to communicate this order forthwith to the Directorate:
Child Welfare Services in the Ministry of Gender Equality and Child
Welfare in order to obtain their respective reports as expeditiously
as possible.
(e) The Registrar is
directed to afford all possible preference to the allocation of the
date referred to in paragraph (a) above.
(f) The costs of the
application shall be costs in the cause.’
The matter is remitted
to the High Court for the hearing of oral evidence in terms of the
order set out in paragraph 2 above by any other Judge in the event
that the learned Judge who dealt with the matter may not be
available and for the further adjudication of the matter as the
Court may deem meet.
If minded to pursue the
application, the respondent must, within 30 days of the date of
this order, notify the Registrar of the High Court, Windhoek, in
writing of his intention to pursue the application in terms of the
order set out in paragraph 2 above. If the respondent fails to give
such notice, or fails to prosecute the application further
notwithstanding such notification, the order in paragraph 2 above
will lapse and the application shall be deemed to have been
withdrawn.
The respondent is
ordered to pay the appellant’s costs of the appeal limited to
his opposition of the appeal, such costs to include the costs of
one instructed and one instructing counsel.
________________________
SHIVUTE CJ
I agree
______________________
MARITZ JA
APPEARANCES
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|
1
Which provides that: 'Children shall have the right from birth to a
name, the right to acquire a nationality and, subject to legislation
enacted in the best interests of children, as far as possible the
right to know and be cared for by their parents.'
2
Which reads as follows:
'(a) For the first 6
months to visit the said child in Swakopmund every alternative
weekend commencing on Saturday at 10h00 until 16h00 and on Sunday
commencing at 10h00 until 16h00 and to take such child to the
Applicant’s mother’s residential address in Swakopmund
during these times.
Thereafter and until
such child attends school to take such minor child every
alternative weekend commencing on Friday afternoon till Sunday at
16h00 as well as holidays which holidays shall be varied so that
the applicant shall have the said child with him every alternative
Christmas holiday.
When
the said child attends school to take such minor child every
alternative weekend commencing on Friday afternoon till Sunday at
16h00 and every alternative long and short school holiday which
holiday shall be varied so that the Applicant shall have the said
child every alternative December holiday.'
3
Article 144 provides: ‘Unless otherwise provided by this
Constitution or Act of Parliament, the general rules of public
international law and international agreements binding upon Namibia
under this Constitution shall form part of the law of Namibia.’