Download PDF

South Africa Judgment

Kwazulu-Natal High Court, Pietermaritzburg

L v L (7168/09) [2009] ZAKZPHC 55 (21 September 2009)

On this page

Professional case brief

Research organized from the available case record

Source document

01

Holding and result

The court found no compelling reason why extended contact, including overnight stays in Durban, would be harmful to the minor child. The applicant's request to take the child to Underberg was denied due to the child's tender age and the distance involved. The court held that fostering the relationship between the applicant and the child was in the child's best interests and that overnight contact should be permitted in Durban. The court also found no reason to restrict weekday contact to the respondent's proposal and allowed for extended contact as sought by the applicant.

Court disposition

Application granted in part; contact arrangements varied as set out in the order.

Orders

  • Paragraph 2.2 of the order dated 16 October 2008 is varied to allow the applicant contact with the minor child in Durban every alternate weekend from 15h00 on Saturday until 16h00 on Sunday.
  • Paragraph 3 of the order is varied to allow the applicant, or his sister, to collect and return the child from and to the respondent's residence at the stipulated times.
  • The costs of the application are reserved for determination at the trial.

02

Material facts

Parties

R A L

Applicant Counsel: Advocate A. Stokes SC

CA D L

Respondent Counsel: Advocate ES. Law

03

Procedural history

  1. Posture

    Variation Application / Application for Variation of Contact Order

04

Questions and positions

Legal issues

Party arguments

Applicant
The applicant seeks a variation of the previous court order to allow for overnight contact with the minor child and extended weekday contact. He relies on the psychologist's report supporting increased contact and argues that such arrangements are in the child's best interests, fostering the bond between father and child.
Respondent
The respondent does not oppose contact in principle but objects to overnight access, citing alleged inappropriate behaviour by the applicant and his family, the applicant's temperament, and failure to attend joint counselling. She claims the psychologist's recommendations are biased and proposes limited weekday contact and interrupted weekend contact.

05

Court’s reasoning

  1. 01

    Children's Act 38 of 2005

    The best interests of the child are paramount in determining contact arrangements.

  2. 02

    Children's Act 38 of 2005

    Contact should be structured to foster and nurture the bond between parent and child, provided it does not harm the child.

06

Ratio, limits and disposition

Ratio decidendi

The court found no compelling reason why extended contact, including overnight stays in Durban, would be harmful to the minor child. The applicant's request to take the child to Underberg was denied due to the child's tender age and the distance involved. The court held that fostering the relationship between the applicant and the child was in the child's best interests and that overnight contact should be permitted in Durban. The court also found no reason to restrict weekday contact to the respondent's proposal and allowed for extended contact as sought by the applicant.

Obiter and limits

  • The court did not address the merits of the submissions regarding paragraph 4 of the previous order.
  • The costs of the application are reserved for determination at the trial.

Court disposition

Application granted in part; contact arrangements varied as set out in the order.

  • Paragraph 2.2 of the order dated 16 October 2008 is varied to allow the applicant contact with the minor child in Durban every alternate weekend from 15h00 on Saturday until 16h00 on Sunday.
  • Paragraph 3 of the order is varied to allow the applicant, or his sister, to collect and return the child from and to the respondent's residence at the stipulated times.
  • The costs of the application are reserved for determination at the trial.

Source and reliance status

Kwazulu-Natal High Court, Pietermaritzburg

This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.

Judgment reading view

Judgment text

The complete available source text.

Source document

Kwazulu-Natal High Court, Pietermaritzburg

Judgment

[2009] ZAKZPHC 55

IN THE KWAZULU-NATAL HIGH COURT, PIETERMARITZBURG

REPUBLIC OF SOUTH

AFRICA

Case No: 7168/09

R A

L APPLICANT

and

CA D

L RESPONDENT

JUDGMENT

Govindasamy AJ:

The Applicant seeks an order varying an order of this court dated 16 October 2008.

The variation relates to the time and duration of the contact between the Applicant and the minor child "C" "L".

The application is motivated substantially by a report provided by psychologist Rose Maurer. The Respondent does not object to contact between the Applicant and "C". She nevertheless claims that the Applicant and members of his family behaved inappropriately towards her in "C"’s presence, that the Applicant is ill tempered and that he has not attended joint counselling. She further claims that the recommendations made by Rose Maurer are biased. On these grounds she is of the view that the Applicant should not be granted overnight access.

There was also considerable dispute as to the meaning of paragraph 4 of the order and whether there has been compliance therewith. For the purposes of this judgment I do not intend dealing with the merits of the submissions in relation to paragraph 4 of the order.

The Respondent agrees in principle that the Applicant can have contact every alternate weekend with "C". The sole issue therefore is whether that contact should be overnight or whether it should be interrupted in the manner set out in the Respondent’s tender. The Applicant has urged me to grant him overnight access so that he may take the child to his home at Underberg. I am not satisfied that at this tender age "C" should travel such long distances. On the other hand it is clearly in "C"’s interests that the bond between herself and the Applicant should be fostered and nurtured. Accordingly I hold the view that the Applicant should be afforded the opportunity to exercise overnight contact with "C" with the proviso that such contact should be exercised in Durban.

The second matter relates to the extent of the contact during weekdays. The Applicant seeks contact on two week days each week while the Respondent tenders contact between 13h00 to 16h00 one day per week.

I can find no compelling reason why the extended contact would be harmful to "C". On the other hand it is important that "C" should maintain as much contact with her natural father as is reasonably possible. Accordingly I make the following order:

Paragraph 2.2 of the order dated 16th October 2008 is varied to read as follows:

“That the Respondent shall be entitled to have contact with the minor child in Durban every alternate weekend commencing at 15h00 on a Saturday until 16h00 on Sunday.”

Paragraph 3 of the order is varied to read as follows:

“The Respondent, alternatively his sister, be entitled to collect and return the child from and to the Applicant’s residence at the times stipulated in paragraph 2 of this order.”

The costs of this application are reserved for determination at the hearing of the trial.

M GOVINDASAMY AJ

Date of Hearing : 17th September 2009

Date of Judgement : 21st September 2009

Counsel for Applicant : Advocate A. Stokes SC

Instructed by : Tomlinson Mnguni James

Counsel for Respondent : Advocate ES. Law

Instructed by : Garlicke & Bousfield Inc.

c/o Venn Nemeth & Hart

Source wording is retained. Consult the source document for its original formatting and pagination.

Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

Children's Act 38 of 2005

Legislation

Legislation referenced in the available case record.

Case-aware research

Ask AI about this case

The judgment and available research above are public. New questions open in a separate private conversation grounded in this case.

About this LexChat collection

This page organizes the available case record for research. Verify quotations, current status, and subsequent treatment against the source document. Corrections can be reported to hello@esheria.ai.

Legal information, not legal advice. Research summaries do not replace the judgment.