Ncube v Duba, Ncube v Duba (23010/2004, 51561/2010) [2011] ZAGPPHC 61 (20 April 2011)

Ncube v Duba, Ncube v Duba (23010/2004, 51561/2010) [2011] ZAGPPHC 61 (20 April 2011)

The respondent, over a period of almost seven years, deliberately alienated the child from the applicant and obstructed contact, despite six court orders. Her conduct included withholding addresses, removing cell phones, manipulating the child's views, and ignoring or sidestepping court orders. The evidence, including reports from the Family Advocate and the applicant's affidavits, established a pattern of wilful non-compliance and manipulation. The respondent's denials were found to be untenable and rejected. The court held that the only effective remedy to protect the child's best interests and restore the relationship with the applicant was to vary the custody order, vesting primary...

Citation
[2011] ZAGPPHC 61
Parties
Applicant: Moloke Bennet Ncube; Respondent: Given Pitsi Duba
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
20 April 2011
Case Number
23010/2004, 51561/2010
Procedural Posture
Family and Children Application / Final Judgment on Variation and Contempt Applications
Outcome
Custody of the minor child is reversed; primary residence is vested in the applicant. The respondent is held in wilful contempt of the order of 12 August 2010. Costs awarded against the respondent in both applications.
Judges
Van der Byl
Legal Topics
Variation of Custody, Contempt of Court, Parental Alienation, Children's Act, Best Interests of Child, Maintenance Order
Family and Children Variation of Custody Contempt of Court Parental Alienation Children's Act Best Interests of Child Maintenance Order

Case Brief

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Parties

Moloke Bennet Ncube

Applicant

Given Pitsi Duba

Respondent

Procedural Posture

Family and Children Application / Final Judgment on Variation and Contempt Applications

Legal Issues

  1. 1 Whether the respondent's conduct justified a variation of the custody order to vest primary residence of the child in the applicant.
  2. 2 Whether the respondent was in wilful contempt of multiple court orders granting the applicant access to the child.
  3. 3 What orders are appropriate to ensure the child's best interests and enforce compliance with previous court orders.

Ratio Decidendi

The respondent, over a period of almost seven years, deliberately alienated the child from the applicant and obstructed contact, despite six court orders. Her conduct included withholding addresses, removing cell phones, manipulating the child's views, and ignoring or sidestepping court orders. The evidence, including reports from the Family Advocate and the applicant's affidavits, established a pattern of wilful non-compliance and manipulation. The respondent's denials were found to be untenable and rejected. The court held that the only effective remedy to protect the child's best interests and restore the relationship with the applicant was to vary the custody order, vesting primary...

Court Disposition

Custody of the minor child is reversed; primary residence is vested in the applicant. The respondent is held in wilful contempt of the order of 12 August 2010. Costs awarded against the respondent in both applications.

Orders

  • The Deed of Settlement dated 4 March 2008 and made an order of court on 6 March 2008 is amended to vest primary residence of the minor child with the applicant.
  • The respondent is granted reasonable contact rights, including alternate weekends, school holidays, and rotating Christmas.