M v S (8928/07) [2009] ZAGPPHC 352 (1 December 2009)
- Citation
- [2009] ZAGPPHC 352
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- North Gauteng High Court, Pretoria
- Panel
- Sapire
- Case number
- 8928/07
More details
- Court
- North Gauteng High Court, Pretoria
- Panel
- Sapire
- Case number
- 8928/07
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that the minor children are well settled in the applicant’s custody and that the home environment provided by the applicant cannot be bettered. The respondent has wide access to the children, and there is no apparent prejudice to her if the applicant is awarded care and residency. The respondent’s affidavit did not demonstrate that the children would be better off if the arrangement was changed. The court concluded that the best interests of the children are served by maintaining the current arrangement, awarding guardianship to both parties, care and residency to the applicant, and contact rights to the respondent.
Court disposition
Application granted in terms of the Children’s Act; parental rights and responsibilities allocated as ordered.
Orders
- Parental rights and responsibilities regarding guardianship of all three minor children are awarded to both parties in terms of Section 18(2)(c) and 18(3) of the Children’s Act.
- Parental rights and responsibilities regarding care and residency of all three minor children are awarded to the applicant in terms of Section 18(2)(a) of the Children’s Act.
- Parental rights and responsibilities regarding contact with all three minor children are awarded to the respondent in terms of Section 18(2)(b) of the Children’s Act, comprising reasonable access at all times including the right to have the children with her on the same basis as presently prevails.
- No order as to costs.
02
Material facts
Parties
S. R. M.
ApplicantP. S. D.
Respondent03
Procedural history
Posture
Urgent Application / Final Determination
04
Questions and positions
Legal issues
- 01
Whether the applicant should be awarded care and residency of the minor children.
- 02
Whether both parties should be awarded guardianship of the minor children.
- 03
Whether the respondent should be awarded contact rights with the minor children.
Party arguments
- Applicant
- The applicant contended that the minor children are well settled in his custody, reside in a stable home environment, and that granting the order would not prejudice the respondent. He argued that the current arrangement serves the best interests of the children.
- Respondent
- The respondent filed an affidavit expressing her differences with the applicant and indicated that any change to the status quo would require maintenance payments to establish a new home. She did not provide evidence that the children would be better off if the current arrangement was changed.
05
Court’s reasoning
Legal principles
- 01
Section 18(2)(c) and 18(3) of the Children’s Act 38 of 2005
Parental rights and responsibilities regarding guardianship may be awarded to both parties under the Children’s Act.
- 02
Section 18(2)(a) of the Children’s Act 38 of 2005
Care and residency of minor children may be awarded to the parent who provides a stable and beneficial environment.
- 03
Section 18(2)(b) of the Children’s Act 38 of 2005
Contact rights should be awarded to the non-custodial parent, ensuring reasonable access.
06
Ratio, limits and disposition
Ratio decidendi
The court found that the minor children are well settled in the applicant’s custody and that the home environment provided by the applicant cannot be bettered. The respondent has wide access to the children, and there is no apparent prejudice to her if the applicant is awarded care and residency. The respondent’s affidavit did not demonstrate that the children would be better off if the arrangement was changed. The court concluded that the best interests of the children are served by maintaining the current arrangement, awarding guardianship to both parties, care and residency to the applicant, and contact rights to the respondent.
Obiter and limits
- Any change in the status quo would require the respondent to establish a new home, which is problematical and unnecessary.
- There is nothing to show that the children will be better off if an order was made changing the present situation regarding their care and residency.
Court disposition
Application granted in terms of the Children’s Act; parental rights and responsibilities allocated as ordered.
- Parental rights and responsibilities regarding guardianship of all three minor children are awarded to both parties in terms of Section 18(2)(c) and 18(3) of the Children’s Act.
- Parental rights and responsibilities regarding care and residency of all three minor children are awarded to the applicant in terms of Section 18(2)(a) of the Children’s Act.
- Parental rights and responsibilities regarding contact with all three minor children are awarded to the respondent in terms of Section 18(2)(b) of the Children’s Act, comprising reasonable access at all times including the right to have the children with her on the same basis as presently prevails.
- No order as to costs.
Source and reliance status
North Gauteng High Court, Pretoria
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.
North Gauteng High Court, Pretoria
Judgment
SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy
IN
THE NORTH GAUTENG HIGH COURT PRETORIA
CASE NO 8928/07
DATE: 1 DECEMBER 2009
In the matter between
S. R. M. Applicant
vs
P. S. D. Respondent
JUDGEMENT
SAPIRE. A J:
This is an application in which the applicant seeks an order regarding the minor children born to the respondent of which he is the father.
The overriding facts in this matter is that the children are as they have been for some time well settled in the custody of the applicant The children reside in a home which on the evidence cannot be bettered The respondent has wide access to the children and there is no apparent prejudice to her should the order sought by the applicant be granted
Although the respondent has recently filed an affidavit setting out her differences with the respondent any change in the status quo would require that she be enabled through maintenance payments to establish a new home elsewhere This is problematical and seemingly unnecessary There is nothing to show however, that the children will be better oft' if an order was made changing the present situation regarding the care and residency of the children in terms of section l8(2Ma) of the Children’s Act 2005
I therefore order that
1. Parental rights and responsibilities in respect of all three minor children in regard to guardianship is awarded to both parties in terms of Section 18(2) (c) and 18(3) of the Children’s Act
2. Parental rights and responsibilities in respect of all three minor children in regard to care and residency arc awarded to the Applicant in terms of Section 18(2) (a) of the Act
3. Parental rights and responsibilities in respect of all three children in regard to contact is awarded to the Respondent in terms of Section I8(2Xb) of the Act and shall comprise reasonable access at all times including the right to have the children with her on the same basis as presently prevails
4. There will be no order as to costs
SAPIRE,
AJ
JUDGE
OF THE NORTH GAUTENG HIGH COURT PRETORIA
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