When the mother of his child died suddenly in a road accident a Limpopo man found himself denied access to his child. Rolivhuwa Sadiki reports on the man’s protracted legal battle to be with his daughter
ON 29 April 2020 in the midst of the tight national lockdown level 5, at approximately 10:30, a fleet of seven police vehicles with more than 10 police officers arrived at the home of MM* demanding that he hand over his daughter to them.
“They told me that they came to remove my 4 year-old daughter from me to her maternal grandparents,” recalled the 45 year-old father.
MM who hails from Tswera, a village located outside Thohoyandou in Limpopo has been fighting to have access to his daughter since she was born.
However, his efforts have allegedly been met with hostility and intimidation from his daughter’s maternal grandparents, particularly the grandfather since 2016 when she was born. The child’s mother passed away in a car accident in 2017 when she was one year three months.
MM says when the police pounced the baby was chilling with her 7 year-old sister (his other daughter) at their father’s homestead since it was his turn to be with her for the school holidays.
“More than 10 police officers were bullying me to give into their demands of wanting to take my daughter unlawfully so. The officers did not have any court order or warrant of arrest except an instruction to fetch my child,” he said.
According to MM, after he refused to hand over the child to the police officers, a vehicle with two other officers was allocated to escort him to a station commander of the Thohoyandou police station, being told that is “where the matter shall be solved”.
“When I got to the police station, I was hoping to meet with the maternal grandparents but in the office it was only the two of us – I and Brigadier Mashava. He informed me that advocate ‘Jaguar’ Mulaudzi for the respondents in my matter asked them to come and fetch the child,” said MM.
After a futile conversation, “we both then agreed that this is the matter for the courts and not the SAPS. The station commander promised to inform Mulaudzi to handle the matter through court and leave the SAPS out of it.”
MM says he feels that the police violated his rights including that of his family and daughter.
He further says they did not act in the best interest of his daughter but appeared to have acted to please the maternal grandparents as instructed to them by advocate Mulaudzi.
“They created an impression to the community that I am a dangerous criminal requiring the strength of more than 10 police officers. Also, their presence in the yard wearing that uniform left a psychological mark on my children,” MM said.
The Gauteng-based father says he believes they needed to be cautious considering the fact that this is a matter involving a minor.
“Today when my children see police vans, they comment in a way that shows that they are reminded of the visit of that particular day. The station commander apologized for the conduct of his members though the damage is already done,” he said.
Apart from the alleged incident of the advocate sending a convoy to MM’s homestead which he reported to the provincial Legal Practice Council – an institution established to determine, enhance and maintain appropriate standards of professional practice and ethical conduct of all legal practitioners; the advocate whose real name is Mboneni Robert was also reported for his unethical conduct after visiting MM’s homestead in 2018 pretending to want to hire a TLB – Tractor Loader Backhoe.
In a copy of his Complaint of Misconduct made to the LPC dated 19 May 2020, MM alleges the advocate “was inspecting my set-up for his defense. His client (the grandmother) asked me to phone him after he instructed her not to give me my daughter,” he said.
In his reply to the LPC which Mukurukuru Media has seen, made seven months after the complaint was laid, Mulaudzi denied the claims that he had visited MM’s home looking for a TLB and that he does not know him.
“I do not remember that I visited his home. I do not know whether he is a businessman and if that was, could it be said that I should not have sought a TLB if that was true. I do not think I know his name,” Mulaudzi replied.
“I do not think I know his home. I had not known this man except during December 2019 when there was an interim order for the case he referred to. That I was inspecting the set-up or my defence but I do not understand how. If that was, how does it help me with the case,” he said.
Questions including whether he gave instructions to the Thohoyandou station commander to send a convoy to MM’s house were e-mailed to advocate Mulaudzi but he did not reply.
Since the birth of his daughter five years ago, MM who is self-employed, has not been able to enjoy proper contact with her as any biological father would, even though he had been granted parental responsibilities and rights in terms of section 21 of the Children’s Act No. 38 of 2005.
This, he alleges, is as a result of the maternal grandfather who has never been fond of him and would constantly employ bullying tactics to prevent him from accessing his child.
In the past four years, MM filed four court applications, going back and forth in an attempt to have custody of his daughter.
In a founding affidavit launched by him against both the maternal grandmother and grandfather who happen to be the 1st and 2nd respondents respectively, at the time of the girl’s mother’s death, he had already acquired full parental responsibilities and rights as stipulated in section 21 of the Children’s Act No. 38 of 2005.
“I had acquired the parental responsibilities and rights as stipulated aforesaid through the interventions of both the Children’s Court: Thohoyandou and the Office of the Family Advocate. This fact on its own renders had always rendered me the sole holder of the parental responsibilities and rights in respect of my daughter. I am also the only surviving parent of (my daughter),” he said in the affidavit.
At the time relief regarding MM’s parental responsibilities and rights were sought, the child was residing in Thohoyandou together with her mother who at the time was residing in her parents’ homestead.
Whilst the Children’s Court in Thohoyandou had confirmed his parental responsibilities and rights, he still could not exercise them due to the conduct of the 2nd respondent (maternal grandfather) who refused to acknowledge him as the father of the child for no particular reason.
“I was always shocked as to how the mother, who at the time was also my girlfriend, could not allow me to have contact with my child until she confessed that the 2nd respondent was angered by her pregnancy and as a result, they were not on speaking terms throughout the pregnancy,” he stated in the affidavit.
“I further perceived that since the maternal grandfather was allegedly angry at her, the anger extended to me and as such, he never acknowledged and recognized me throughout the pregnancy and even after my daughter was born. I also suspected that this could be the reason my girlfriend’s family never reported the pregnancy to my family.”
When replying to questions sent to him on whether, amongst others, he has been using bullying tactics to prevent MM from seeing his daughter, the grandfather who cannot be named to protect the identity of the minor said: “You are asking wrong questions to a wrong person.”
According to section 21 of the Children’s Act No. 38 of 2005, the biological father acquires full responsibilities and rights in respect of the child if he “contributes or has attempted in good faith to contribute to the child’s upbringing for a reasonable period”, something MM had been doing way before the child was born.
Before the baby was born, MM paid for all medical consultations fees including the delivery of the baby by a gynaecologist (practicing in Polokwane) of the mother’s choice that assisted her through labour at the Polokwane provincial hospital.
“If my memory serves me well, I paid R8000 for delivery excluding consultations throughout the pregnancy,” he said.
He also contributed in good faith to the maintenance of the child from birth, only to be blocked from doing so by the maternal grandfather. To circumvent this, at times he would deliver groceries for the child at the nearest tuck-shop in Thohoyandou.
MM further alleges that the mother of his child, despite her father’s negative attitude, recognized the need for their daughter to have both her parents in her life and as a result, when she was still alive, he would have “stolen contact with the child”.
“I would also have better contact with the child during school holidays when she would be in Polokwane visiting her mother (the grandmother), who at the time did not have any problems with me having contact with the child. I ultimately got tired of having “stolen contact” with the child and decided to refer the matter to the Children’s Court: Thohoyandou,” he added.
The matter has now been taken over by the Office of the Chief Family Advocate – an office placed within the department of justice and constitutional development that deals with disputes between parents or family members over the parental responsibility and rights of children, from the Thohoyandou high court back to the children’s court Polokwane.
In a memorandum compiled by the senior legal administration officer and national complaints manager at the Office of the Chief Family Advocate Josephine Peta, the minor is currently residing with the maternal grand-mother in Polokwane and also moves between the city and Thohoyandou every Friday when she is not having contact with him (the father).
It further highlights that although the minor does not reside with her maternal grandfather, “she is subject to his authority to the extent that he has a say as to when and where she can have contact with her father”.
It is safe to say that the maternal grandparents were granted custody over the minor in 2019, a judgment MM had appealed against when he approached Peta’s office on or about June 2020, requesting that they intervene in the matter as he was of the view that it (the appeal) was awaiting a finalization of a high court order of the Thohoyandou high court regarding the exercise of his parental responsibilities and rights over his minor.
Moreover, according to Peta, the appeal was delaying due to reasons beyond his control.
“He requested our intervention as he was of the view that the delay was causing further damage to the father and daughter relationship and that the damage may become irreparable should the matter not be finalised. Upon receipt of his complaint, we investigated his matter and also engaged the Judge President of the Limpopo Division to ascertain his submission that his appeal was pending at the Thohoyandou High Court,” indicated Peta.
However, Peta’s office was then duly informed by the judge president that “there is no pending appeal before the court as no leave to appeal was entertained or granted by the court”.
The Thohoyandou Victim Empowerment Programme (TVEP)’s legal expert Maanea Maluma says the grandfather of the minor has been in contravention of the law, since MM as the biological father, was given the parental rights and responsibilities by the court of law.
Maluma further says the grandfather is violating the court order since the law states that any parent or guardian who has care for the child and refuses to allow the other parent to exercise his or her responsibilities and rights contrary to a court order is guilty of an offence and could be liable for a conviction fine or to an imprisonment for a period not exceeding one year..
“The grandfather cannot stop the father from seeing his child unless the court states otherwise,” Maluma said.
Subsequently, refusing the child to see her father, the legal expert says the grandfather is contravening the very same Children’s Act No. 38 of 2005 which came in to effect on 1 April 2010.
“Section 10 defines parental responsibilities and rights which include the right to care for the child, maintain contact with the child, act as a guardian of the child and to contribute to the maintenance of the child. So, the child is being deprived of those rights,” he added.
A study titled Responding to the challenge of father absence and fatherlessness in the South African context: A case study involving concerned fathers from the North West Province highlights that children want the father’s presence and not the father’s presents.
Published in 2017 by the University of North West, it argues that children need their fathers and want to spend time with them and that they should not only be there to provide material security, as is often the case.
“Father absence and fatherlessness is a worldwide phenomenon and a worldwide tendency in communities. The problem of father absence escalated from 42% to 48% in 2011. Hence, South Africa is one of the countries in the world with the highest figures of father absence,” wrote Fazel Freeks.
The study estimates that 2.13 million children in South Africa are fatherless and 9 million grow up without fathers.
“Many children are uncertain and confused and deeply feel the need for a father’s attachment, presence, and a lifestyle characterized by good values received from their fathers. Children are in need of a platform of certainty,” said Freeks.
MM has since founded We are Fathers, We are Parents Forum (WFWPF) – a non-profit organization established to raise awareness and educating fathers on how to fight for their rights as biological fathers, including that of their children after separation or deaths of their mothers.
He said some of the challenges single fathers are faced with include being taken advantage by officials such as social workers, family advocates, magistrates and judges with some, disputing lawful recommendations by family advocates, like the sharing of parenting values without valid reasons.
“Of importance are similarities of parental plans which give fathers alternative weekends and school holidays. Fathers get to see their children only for an average of 70 days out of 365 days in a year. That is about 19% of the time where a child must form a relationship with the father,” he said.
“If the father dares go outside the plan, SAPS engages but if the mother prevents the father from seeing the child against the court order, the police do not intervene,” he concluded. – Journalist for Human Rights, Project: Mobilizing Media in the fight against Covid-19 in cooperation with Sound Africa and Media Monitoring Africa