C.J.V.C v M.V (005318/2025) [2025] ZAGPJHC 176 (23 February 2025)

Key Facts

Issues

• The court was required to assess the applicant's entitlement to full parental responsibilities and rights as an unmarried father. The parties were in a relationship at the time of the child's birth in 2021 and cohabited until 2024. The applicant contributed to the child's upbringing and maintenance. The court confirmed his rights under section 21 of the Children's Act, which allows an unmarried father to acquire parental rights if he consents to being identified, contributes to upbringing, and maintenance.
• The court considered whether the application was urgent, given that the matter was pending in the Children's Court for a hearing on 10 February 2025. The respondent argued that the matter was not urgent, but the court found that the child's safety and best interests necessitated immediate action, especially due to the respondent's history of alcohol abuse and recent incidents of unilaterally removing the child.
• The court examined the respondent's severe alcohol abuse and its impact on the child's safety. The respondent's history included multiple hospitalizations and rehabilitation stays. The court found that her alcoholism posed a risk to the child and ordered supervised contact with random alcohol testing to ensure sobriety during interactions. The respondent's failure to maintain sobriety and her recent actions, such as involving SAPS to remove the child, were deemed contrary to the child's best interests.

Holdings

• The court ordered the respondent to pay the applicant's costs on a party-and-party scale, Scale B, citing her unilateral actions and disregard for the child's best interests. This included removing the child from the applicant's care with police assistance and making allegations without evidence.
• The court determined that the applicant is vested with full parental responsibilities and rights in respect of the minor child, B, under sections 18(2)(a) to (d) and section 18(3) of the Children's Act 38 of 2005. This was based on evidence that the applicant and respondent lived in a permanent life partnership at the time of B's birth and contributed to her upbringing and maintenance.
• The court ruled that the minor child, B, must be returned to the applicant's care forthwith, with the respondent permitted supervised contact under specific conditions. Contact includes weekly visits and weekend visits, with the child primarily residing with the applicant pending resolution of the Children's Court matter.
• The court mandated the use of an iSoberS Pro BLE Premium Breathalyser to monitor the respondent's sobriety during contact with B. Test results must be shared via WhatsApp before and during visits, with the applicant entitled to withhold contact if alcohol is detected. Random urine, blood, or hair follicle tests may also be conducted.

Remedies

• The respondent must procure an iSoberS Pro BLE Premium Breathalyser at shared cost, submit test results via WhatsApp 20 minutes before contact and every two hours during contact, supervised by a family member or Bridget Matebele. If positive, contact is withheld until a negative test.
• The minor child, B, is to be returned to the applicant's care forthwith, collected from her school on 30 January 2025, and shall remain primarily resident with the applicant.
• The court condoned the applicant's non-compliance with the Uniform Rules of Court.
• The applicant and respondent are vested with full parental responsibilities and rights under sections 18(2)(a)-(d) and 18(3) of the Children's Act.
• The respondent is to exercise supervised contact with the minor child at specified times and locations, including Mondays, Wednesdays, weekends, and under supervision by family members or Bridget Matebele.
• If the applicant takes the child for a weekend, the respondent must make up the missed contact time as per the court's schedule.
• The respondent must be sober during all contact sessions with the minor child. If she arrives intoxicated, she will not be allowed to have contact.
• The respondent is subject to random alcohol tests, including urine, blood, or hair follicle tests, at the applicant's instance if a breathalyser test is positive.
• The respondent is ordered to pay the applicant's costs of the application on Scale B.

Legal Principles

• The court applied a purposive interpretation of the Children's Act to determine the best interests of the minor child, emphasizing the need to prioritize her safety and well-being despite procedural or factual disputes between the parties.
• The court exercised its discretion in allocating costs, ruling that the respondent must pay the applicant's costs on a party-and-party scale (Scale B) due to her contrived conduct and actions contrary to the child's best interests.

Precedent Name

Cited Statute

Judge Name

Passage Text

• In the circumstances, I will include in the order that the respondent is to pay the costs of the application on a party-and-party scale, on scale B.
• The parties shall procure... an iSoberS Pro BLE Premium Breathalyser... allowing random alcohol testing at all times... publication of results by WhatsApp message in real time.
• The applicant and the respondent are vested with full parental responsibilities and rights as provided in sections 18(2)(a) to (d) and section 18(3) of the Children's Act 38 of 2005.