T.P.M v M.B.M (M439/19) [2021] ZANWHC 14 (16 March 2021)

T.P.M v M.B.M (M439/19) [2021] ZANWHC 14 (16 March 2021)

The court found that while there is prima facie evidence of contempt of court by the respondent regarding multiple orders about the minor child's residence and care, a final determination cannot be made without a thorough investigation into the child's best interests. The respondent's defence, based on acting as a guardian and the incomplete Family Advocate report, raises issues that require the child's views and wishes to be properly considered. The court declined to declare the respondent a vexatious litigant, noting that her litigation, though forum shopping, does not meet the threshold for vexatiousness, and maintenance proceedings are constitutionally protected. The...

Citation
[2021] ZANWHC 14
Parties
Applicant: T.P.M; Respondent: M.B.M
Court
North West High Court, Mafikeng
Jurisdiction
South Africa
Judgment Date
16 March 2021
Case Number
M439/19
Procedural Posture
Urgent Application / Opposed Motion; Main and Counter Application
Outcome
Application and counter-application partially successful; investigation ordered, no final relief granted pending report.
Judges
A.H. Petersen
Legal Topics
Primary Residence of Minor, Contempt of Court, Best Interests of Child, Guardianship, Appointment of Family Advocate
Family and Children Civil Procedure Primary Residence of Minor Contempt of Court Best Interests of Child Guardianship Appointment of Family Advocate

Case Brief

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Parties

T.P.M

Applicant

M.B.M

Respondent

Procedural Posture

Urgent Application / Opposed Motion; Main and Counter Application

Legal Issues

  1. 1 Whether the respondent is in contempt of multiple court orders regarding the minor child's residence and care.
  2. 2 Whether the respondent should be declared a vexatious litigant and interdicted from instituting further proceedings without leave of court.
  3. 3 Whether a curator ad litem should be appointed for the minor child or whether referral to the Family Advocate suffices.

Ratio Decidendi

The court found that while there is prima facie evidence of contempt of court by the respondent regarding multiple orders about the minor child's residence and care, a final determination cannot be made without a thorough investigation into the child's best interests. The respondent's defence, based on acting as a guardian and the incomplete Family Advocate report, raises issues that require the child's views and wishes to be properly considered. The court declined to declare the respondent a vexatious litigant, noting that her litigation, though forum shopping, does not meet the threshold for vexatiousness, and maintenance proceedings are constitutionally protected. The...

Court Disposition

Application and counter-application partially successful; investigation ordered, no final relief granted pending report.

Orders

  • The Office of the Family Advocate, Johannesburg and Mmabatho, is ordered to investigate and report to this Court on the best interests of the minor child concerning her primary place of residence, contact and care, covering the period from 2015 to date.
  • Pending the outcome of the investigation, the minor child's current primary place of residence shall remain with the respondent.