Court name
Supreme Court
Case name
Thudinyane v Edward
Media neutral citation
[2012] NASC 22
Judge
Shivute CJ



















REPORTABLE


CASE
NO.: SA 17/2005




IN THE SUPREME COURT
OF NAMIBIA



In the matter between:














I
JESSICA THUDINYANE



Appellant




and











ALBINUS
INDILA EDWARD



Respondent









Coram: SHIVUTE CJ
and MARITZ JA



Heard: 6 July 2006



Delivered: 12 October
2012



____________________________________________________________________



APPEAL JUDGMENT



____________________________________________________________________



SHIVUTE CJ (MARITZ JA
CONCURRING):




  1. The
    respondent (then as applicant) brought application on notice of
    motion in the High Court seeking, from the appellant (cited as the
    respondent in the proceedings in the Court below),

    among
    other things, an order granting him access to his minor child born
    outside marriage. The appellant is the child’s mother. The
    respondent has accepted the legal position that he had no parental
    authority in respect of his child - who was born out of wedlock -
    but maintained that he was merely seeking reasonable access to the
    child. By seeking this relief, the respondent claimed to restore the
    status
    quo

    which he asserted had existed prior to the end of 2000 when he was
    granted access to the minor child by the appellant. The respondent
    further alleged that the appellant through her actions tacitly
    agreed to or created visiting rights which he was desirous of
    maintaining. It was also the respondent’s allegation that the
    appellant had waived any bar and/or restriction which could possibly
    prevent him from such access which existed prior to the end of 2000.
    The respondent, however, rightly in the end abandoned this
    last-mentioned proposition when the appellant counteracted it with
    ample authority to the contrary. The respondent argued that in terms
    of Article 15(1) of the Constitution,
    1
    it was in the best interest of the child to know her biological
    father and to be cared for by him.









  1. The appellant did not
    dispute that the respondent was the natural father of the child but
    denied that, through her actions, she had tacitly agreed to grant
    the respondent any of the rights which he was seeking to enforce in
    these proceedings. Appellant alleged that the respondent had ceased
    to visit the child and, from the child’s point of view, simply
    vanished for an extended period. She submitted that it was due to
    his absence for a period of four years that he, in effect, had
    become a stranger to the child. She maintained that on the occasions
    when the respondent visited the child before his disappearance, he
    was never with the child for a period long enough to establish what
    her needs were.








Background




  1. It is common cause that
    the appellant and the respondent were involved in an intimate
    relationship for three years. A baby girl was conceived and born of
    this relationship. The relationship between the parties ended
    shortly after the birth of their child. The respondent nevertheless
    continued to visit their child intermittently and for short periods
    once during each of the following months: June, July, September,
    October and December 2000 as well as January, April, May, June and
    December 2001.









  1. The respondent alleged
    that when, after his return, he had attempted to regain access to
    the child by approaching the appellant for her consent, his efforts
    were met with blatant refusals from the appellant. His legal
    representative also attempted to ascertain the appellant’s
    banking details so that the respondent could pay maintenance. This
    was corroborated by an affidavit by the respondent’s legal
    practitioner. Appellant denied these allegations.









  1. A letter was addressed
    to the appellant on 21 May 2002 by the respondent’s legal
    practitioners requesting access to the child on every second
    weekend. Appellant’s legal practitioners replied on 13 June
    2002 offering the respondent structured access. The respondent’s
    legal practitioners replied on 16 September 2002 by merely stating
    that the respondent ‘is happy to go on as he has done so far,
    to pay maintenance on a monthly basis and to visit the minor child
    when it is suitable to (the appellant)’. This was interpreted
    by the appellant to be a rejection of the offer, which was intended,
    according to her, to be structured. The appellant maintained that
    circumstances had in the meantime changed: she got married to
    another man and the child had grown accustomed to her stepfather.
    She was therefore no longer prepared to agree to the structured
    access previously offered. The appellant submitted that, because of
    the change in circumstances, it was not in the child’s best
    interest that the respondent should be allowed access to her. The
    appellant maintained that access would ‘only create confusion
    in the relationship between the child and her stepfather, who has
    been supporting her up to now’.









  1. In his replying
    affidavit, respondent says that structured access to the child had
    been his wish all along and that he was unable to recall why he had
    responded, through the mouth of his legal practitioner, in the
    manner he did, adding that: ‘I can only surmise that it is a
    result of a communication between me and my legal practitioner’.









  1. The application was
    called before Shikongo AJ who, having heard arguments by counsel on
    both sides, directed that the application be referred for a hearing
    of oral evidence and that reports of evaluation of the parties had
    to be compiled and submitted by appropriate personnel from the
    Ministry of Health and Social Services or by a mutually agreed on
    child or clinical psychologist on the question whether access by the
    respondent to the minor child would be in the best interest of the
    child. This was confirmed in a letter from the Registrar of the High
    and Supreme Courts dated 14 July 2005.









  1. Parties communicated
    with each other with the view to effectuating the directives given
    by the learned Judge. On 10 August 2005, however, the learned Judge
    handed down his ruling on the application, without first hearing the
    evidence which he had previously ordered should be heard. In it he
    ordered that the respondent be granted access to the child as per
    Annexure ‘A’ to the notice of motion
    2
    and furthermore ordered the appellant to pay the costs of the
    application.









  1. The issues that called
    for determination by the Court below were the following:










    1. Whether or not it was
      in the best interest of the minor child that access be granted to
      the respondent; and











    1. Should the Court answer
      the aforementioned question in the affirmative, what are the terms
      and conditions, if any, on which the said access should be granted?









Findings by the High
Court




  1. The learned Judge gave
    the following explanation for giving judgment prior to having heard
    oral evidence, including expert evidence, which he had initially
    deemed necessary:








'My follow up inquiries with the
Registrar’s office on the expected time frame within which
aforementioned directives would be attended to, however, revealed
that the estimated duration of the process itself might defeat the
stated object of obtaining a just and especially, an expeditious
decision. In this regard, I was alerted to the fact, that besides the
likelihood that adjudication on the envisaged oral evidence may
eventuate only sometime after February 2006, the finalization of the
welfare report, assessed against past trends, is unlikely to be in
the shortest period of time as optimistically wished for.







Accordingly, and considering the
interest of the parties in securing expeditiously the pronouncement
of this court on the issue brought before it, and taking into account
that the further evidence sought mero motu, would have been
supplementary to that proffered by the litigants themselves, I am
inclined and have decided to proceed with pronouncing myself on the
issues raised and argued by the litigants in this matter.'








  1. With regard to the issue
    of the best interest of the minor child, it was found that the
    respondent could not rely on a bond having developed between the
    child and himself. The Court below further made a finding that it
    was in the best interest of the child to maintain contact with her
    biological father and to be cared for by him. The Court applied the
    dictum of the South
    African Supreme Court of Appeal in
    T v M
    1997 (1) SA 54 (A) that, in the absence of any factors which are of
    such a nature that the welfare of the child demands that he/she be
    deprived of the opportunity of enjoying access to the parent in
    question, it should be in the best interest of the child that access
    by the father be granted.









  1. In deciding whether the
    respondent’s proposed access as per Annexure ‘A’
    of his notice of motion should be granted, the High Court decided
    that the same reasoning was to be adopted in relation thereto. The
    learned Judge found that there were no factors militating against
    allowing such access and that, having two loving father figures even
    if one was not present on a permanent or continuous basis, could
    hardly be said to be against the interest and/or welfare of the
    minor child. The Court therefore decided that it was in the best
    interest of the minor child that such access, as outlined in
    Annexure ‘A’ to the notice of motion, be granted.









  1. Before I turn to
    consider counsel's arguments on the reasoning and findings of the
    Court a quo, I should first deal with an issue that has
    affected this appeal. The appeal was heard by me, together with my
    Brothers Maritz JA and O’Linn AJA. Our Brother O’Linn
    AJA became indisposed at the time the judgment was circulated for
    his consideration. To our regret, his health has not improved since
    then and he remains indisposed and unable to further deal with the
    appeal. The legal position in such an eventuality is settled:
    Pursuant to the provisions of s 13(4) of the Supreme Court Act, 15
    of 1990 and as discussed by this Court in earlier judgments, amongst
    others, in Wirtz v Orford and Another 2005 NR 175 (SC), my
    Brother Maritz JA and I can validly and properly finalise the
    matter, provided we agree on the outcome of the appeal.








Counsel’s
submissions on appeal




  1. Proceeding now with the
    consideration of arguments advanced by counsel: the appellant was
    represented by Mr G Dicks while Mr Mouton argued the appeal on
    behalf of the respondent. It was submitted on behalf of the
    appellant that the Court below correctly referred the matter for
    oral evidence and rightly ordered a welfare report or the report of
    a child or clinical psychologist to be produced in order to
    ascertain whether granting access would be in the best interest of
    the minor child. Counsel, however, argued that the Court below erred
    in not following through with the directives it had issued. Counsel
    continued to advance argument that the finding by the Court below
    that it was in the minor child’s best interest to grant
    respondent access to the child was erroneous since no enquiry was
    conducted to determine what is in the best interest of the minor. He
    accordingly moved for an order remitting the matter to the High
    Court to hear evidence of the parties and experts.









  1. Counsel for the
    respondent, on the other hand, strenuously argued in support of the
    findings by the Court below. Counsel submitted that the High Court
    correctly applied the facts in concluding that it was in the child’s
    best interest that access to her be granted to the respondent. The
    respondent accordingly urged for the confirmation of the order of
    the Court below granting access and the issue of the extent
    of access to be referred to that Court for determination.








Issues on appeal




  1. At the commencement of
    the hearing of the appeal, the appellant made application for
    condonation for non-compliance with certain rules of the Rules of
    Court and for reinstatement of the appeal. Counsel for the
    respondent indicated that the application was no longer being
    opposed. Having been persuaded that a case had been made out for
    relief, the application was granted. Counsel on both sides were
    broadly in agreement with the law applicable to the facts of the
    case. Their differences lie in the application of those principles
    to the facts. In addition to the heads of argument filed in terms of
    the Rules of Court, counsel were requested to prepare supplementary
    heads of argument on the applicability of the United Nations
    Convention on the Rights of the Child (the Convention) and Article
    15(1) of the Namibian Constitution (the Constitution) to the matter.
    Counsel for parties were
    ad
    idem
    and
    submitted as follows regarding the applicability of the Convention
    to Namibia: Article 63(2)
    (e)
    of the
    Namibian Constitution provides that the power to agree to the
    ratification or accession to international agreements which have
    been negotiated and signed by the President of Namibia or his
    delegate vests in the National Assembly. The Convention was signed
    by Namibia on 26 September 1990 and ratified on 30 September 1990.
    Accordingly, and in conformity with Article 144
    3
    of the Namibian Constitution, the Convention became part of Namibian
    law.









  1. The best interest of the
    child is the paramount consideration in any investigation or
    decision concerning a child directly or indirectly. This is evident
    from the relevant provisions of the Constitution as well as the
    Convention. Since parties are in agreement concerning the legal
    principles governing this appeal, the issue remaining for decision
    is whether the Court below was correct in deciding the
    application without hearing the evidence on the issues that it had
    identified required oral hearing. The determination of the scope and
    ambit of what is in the best interest of the child in the context of
    granting access by a parent will undoubtedly be informed by relevant
    legal principles followed by a factual application of those
    principles. The genesis of any substantive legal discussion should
    be the Constitution. Article 14(3) of the Namibian Constitution
    should be the starting point in the consideration of the right of
    the child. The Article provides that:








The family is the natural and
fundamental group unit of society and is entitled to protection by
society and the State.’












  1. As already mentioned,
    Article 15(1) which is more on the point makes provision, amongst
    other things,
    for the
    right of each child to know and be cared for by his or her parents,
    as far as possible. This last qualification is vital, in that it is
    not an absolute right, as it remains a factual question whether it
    is in the best interest of the child that such a right be granted.
    Furthermore, as alluded to by counsel, in Namibia, international
    agreements such as the Convention, appear to have similar force of
    law as accorded to legislation, in the absence of any constitutional
    provision or Act of Parliament contradicting the law or agreement in
    question. The Convention refers profoundly to the child’s best
    interest being paramount in any decision concerning the child. It
    employs a language similar to that found in Article 15(1) of the
    Constitution. It says in article 7(1) that the child shall have ‘…as
    far as possible, the right to know and be cared for by his or her
    parents’. In terms of article 7(2) of the Convention, State
    Parties are under obligation to ensure implementation of these
    rights in accordance with their national law. The provision
    regarding ‘as far as possible’ the right to know and be
    cared for by their parents must be read against the preamble of the
    Convention that, like Article 14(3) of the Constitution, places much
    emphasis on the family as a unit and the need to afford the
    necessary protection to its members and particularly children so
    that it can fully assume its responsibilities within the community.
    The preamble to the Convention also recognizes ‘… that
    the child, for the full and harmonious development of his or her
    personality, should grow up in a family environment, in an
    atmosphere of happiness, love and understanding’. Article 3(1)
    of the Convention enjoins State Parties to the Convention to
    ‘undertake to ensure the child such protection and care as is
    necessary for his or her well-being, taking into account the rights
    and duties of his or her parents, legal guardians, or other
    individuals legally responsible for him or her, and to this end,
    shall take all appropriate legislative and administrative measures’.
    It is evident therefore that decisions involving children should be
    informed by the above constitutional imperatives and the need for
    Namibia to comply with its international obligations in terms of the
    Convention.









  1. Numerous cases which all
    have a bearing on the main issue to be determined were cited by
    counsel on both sides and it is not necessary to recite them here.
    Save to say that I had regard to them in coming to the conclusion I
    have arrived at in this matter. One of such authorities, however,
    stands out as being prominent and to the point and this is the
    decision of the South African Supreme Court of Appeal in
    B
    v S
    1995 (3) SA 571 (A). It is necessary to
    single it out. At page 584H of the judgment, Howie JA, writing for
    the Court, observed that there was no onus on the natural father, in
    an application for granting access to his child to show ‘a
    very strong and compelling ground’ why he should have access.
    Such application in substance involves judicial investigation into
    the child’s best interest. The learned Judge of Appeal went on
    to remark at 584I-585B as follows:








In addition it seems to me to
be necessary to lay down that where a parental couple's access (or
custody) entitlement is being judicially considered for the first
time - in other words where there is no existing Court order - there
is no onus in the sense of an evidentiary burden, or so-called risk
of non-persuasion, on either party. This litigation is not of the
ordinary civil kind. It is not adversarial. Even where variation of
an existing custody or access order is sought, and where it may well
be appropriate to cast an onus on an applicant, the litigation really
involves a judicial investigation and the Court may call evidence
mero motu. A fortiori that is so in a “first
time” situation. And it is irrelevant in this regard whether
the child concerned is legitimate or illegitimate.’ (Reference
to authorities omitted.)












  1. At 585E-F the learned
    Judge made the following pertinent remarks:








Moreover, if the dispute were
properly ventilated by way of as thorough an investigation as may
reasonably be possible, it is … difficult to envisage when the
welfare of the child will not indicate one way or the other whether
there should be access. That presupposes, of course, that all the
available evidence, fully investigated, is finally in. It
follows that if a Court were unable to decide the issue of the
child's best interests on the papers, it would not let the matter
rest there. While there might often be valid reasons (for
example, expense or the nature of the disputed issues) for not
involving expert witnesses, at the least the Court would require, and
if necessary call, oral evidence from the parties themselves in order
to form its own impression (almost always a vital one) of their worth
and commitment. Because the welfare of a minor is at stake, a Court
should be very slow to determine the facts by way of the usual
opposed motion approach, which would be inappropriate if it left
serious disputed issues of fact relevant to the child's
welfare unresolved.’ (Reference to authorities omitted and
emphasis supplied.)








  1. I am in respectful
    agreement with the above dicta. Granted that the superior
    courts are the upper guardians of minor children it makes sense that
    these proceedings should take the form of a judicial inquiry. In the
    present case, the initial approach of the Court below to refer the
    matter for oral evidence was correct. In my view, there were many
    issues of fact in dispute between the parties which should have been
    dealt with at the oral hearing. Furthermore, although the appellant
    did not hand in the report compiled by a clinical social worker who
    apparently evaluated the appellant and her family, the Court below
    was informed of its availability and should have requested the
    report and given the respondent an opportunity to dispute it if so
    advised. This is in line with reaching a just finding.









  1. The appellant had no
    issue with granting unstructured access to the minor child by the
    respondent in the past. Her main contention with the access in
    question seems to revolve around the prolonged absence of the
    respondent in the minor child’s upbringing and the changed
    circumstances in her and the child’s life. She also appears to
    have taken issue with the respondent’s degree of attachment
    and commitment to the minor child; the underlying motives for
    bringing the application for access at a stage when the minor child
    had settled in with her new family; the allegation that the minor
    child had grown to consider her stepfather as her ‘real
    father’, and the impact the sudden access may have on the
    minor child.









  1. The Court below
    reasoned that the sooner any possible
    confusion created by access to the child after the changed
    circumstances was tested the better and that it was tolerable for
    the child to have two father figures, even if one was not permanent.
    I am not in agreement with this reasoning, as it evinces a certain
    degree of indifference to the minor’s best interest.
    Doubtless, ‘the best interest of the child’ includes the
    child’s emotional and psychological wellbeing. Neither this
    Court nor the Court below could determine these without assistance
    of expert evidence. The Court below
    therefore
    erred in not seeing through the directives it had given to hear oral
    evidence.
    It
    has emerged from the papers that after the learned Judge had ordered
    the application to be referred to the hearing of the evidence,
    counsel intimated in Chambers that the evidence of the parties would
    not take the application any further, but that it was necessary to
    hear expert evidence. While the parties were preparing to obtain
    reports from experts, the judgment granting access was handed down.
    I think that the Court
    below
    erred in this
    approach. Having ordered the application to be referred to the
    hearing of oral evidence, the Court
    below
    could not proceed
    to decide the application without affording the parties an
    opportunity to address it on the effect of deciding the application
    without hearing evidence. As this Court pointed out in
    Namib
    Plains Farming and Tourism CC v Valencia Uranium (Pty) Ltd and
    Others
    2011 (2) NR
    469 (SC), at par 40, when at some stage of the proceedings, parties
    are limited to particular issues either by agreement or a ruling of
    the Court, as a general principle, the Court cannot unilaterally
    alter the position without affording the parties an opportunity to
    make submissions on the proposed new tack in the course of the
    proceedings.








  1. With regard to other
    findings by the Court below, I must note that, whilst I agree in
    principle with the finding that save for the prolonged absence of
    the respondent there did not appear to be other factors present, at
    least on the papers, which tended to show that access may not be in
    the child’s best interest, I am concerned that the Court below
    did not appear to have considered that there may be a
    possibility that the child’s emotional and psychological
    balance may be disturbed by the sudden introduction of another
    father figure she may no longer have any recollection of. This is an
    important factor in deciding whether or not access should be ordered
    at this stage of her development and, if so, how she should be
    introduced to the notion. It cannot be decided on affidavit and as
    such the Court below should have taken the matter further by
    obtaining expert evidence.









  1. In the view I take of
    the matter, access should not have been granted until it had been
    determined after a thorough investigation of all the available
    evidence whether it would be in the best interest of the child to
    grant access. The dilemma, of course, is that a long time has passed
    and it raises the question how the matter should now proceed. The
    child has grown older in the meantime and, with that, has
    undoubtedly advanced intellectually, became evolved psychologically
    and acquired more adaptive and social skills – all of which
    affect her level of maturity and her readiness to be introduced to
    her natural father. I am of the opinion that the type of enquiry
    that was ordered by the Court below is essential and indispensable
    in the circumstances of this case and that it should take the
    child’s current level of intellectual and psychological
    development into account. This Court is not in a position to conduct
    such enquiry. The matter should therefore be remitted to the High
    Court for that Court to hear oral evidence as inter alia
    contemplated in the initial order that Court had issued. That Court
    is best suited to deal with the matter. It is thus necessary to
    engage the services of professional persons, such as social workers
    and/or a child psychologist to assist the Court hearing the resumed
    application whether the child will adapt to the introduction of
    changes in her life at this stage. The remarks of Howie JA made
    against the background of similar circumstances in B v S (above)
    are apt. He said at 587D-E:








[I]t may well be that access
will be in the child’s best interests and that he should not be
disadvantaged by respondent's refusal of access (if unjustified) or
by the inadequacies inherent in forensic procedure. If the evidence
on remittal shows that time and circumstance have driven an
unshakable wedge between appellant and himself, so be it. On the
other hand, if that does not turn out to be the case, then there is
still sufficient left of his formative childhood to permit paternal
access to operate to his benefit if access be found to be in his best
interests.’








  1. I am persuaded that
    remitting the matter to the High Court for the hearing of evidence
    will certainly be in the minor child’s best interest in the
    circumstances of this case and be in line with article 9(3) of the
    Convention which provides that:








States shall respect the right
of the child who is separated from one or both parents to maintain
personal relations and direct contact with both parents on a regular
basis, except if it is contrary to the child’s best interest.’








  1. The possibility that the
    respondent may not pursue the application in the event that remittal
    is ordered should not be discounted. To guard against such
    possibility, the respondent as the architect of the application for
    access should be put to terms to ensure that he prosecutes the
    application if he is still so minded or advised. This will be
    reflected in the order below.








Costs




  1. As to the costs of the
    appeal, counsel for the appellant argued that if the decision of the
    Court below is set aside, then the appellant is successful
    and should therefore be awarded the costs of the appeal. Counsel for
    the respondent, on the other hand, submitted that if the appeal is
    dismissed, the respondent is entitled to costs. However, if the
    appeal is allowed, either the appellant be ordered to pay the costs
    of the appeal or each party should pay his or her costs. Counsel
    argued that there was neither onus on the respondent to give oral
    evidence in the Court below nor had any allegation of wrong doing
    been levelled against the respondent for the failure to hear
    evidence. My own view on the issue of costs is that as far as the
    costs of the application in the High Court are concerned, those
    should be reserved for determination by the Court that will hear
    evidence and dispose of the application. As to the costs of the
    appeal, I am of the view that although the current proceedings are
    not of the ordinary civil kind, the appellant was entitled to appeal
    against a clearly erroneous judgment and order of the Court below.
    The respondent on the other hand had a choice to either abide the
    decision of this Court or to oppose the appeal. Having elected to
    oppose the appeal and the appellant essentially being successful,
    the respondent should be ordered to pay the costs of appeal at the
    very least limited to his opposition of the appeal.








Order




  1. The order similar to the
    one made in B v S (above) in relation to remittal and
    consequential issues would be appropriate and I propose to borrow
    liberally from the order made in that matter. The following order is
    accordingly made:










    1. The appeal succeeds.











    1. The order by the High
      Court is set aside and there is substituted for the following
      order:









(a) The
application is referred to oral hearing of evidence on a date to be
arranged with the Registrar on the question whether access by the
applicant to the minor child will be in the best interest of the
child, and if so determining the extent to which such access be
granted.







(b) The evidence referred
to in paragraph (a) above will be that of the party who elects to
testify and any witnesses he or she may call as well as witnesses
that may be called by the Court.







(c) The Directorate:
Child Welfare Services in the Ministry of Gender Equality and Child
Welfare is hereby directed to investigate the parties’
respective circumstances for the purpose of subsequently reporting in
writing to the Court (with copies to each party) on the question
referred to in paragraph (a) above.







(d) The Registrar is
directed to communicate this order forthwith to the Directorate:
Child Welfare Services in the Ministry of Gender Equality and Child
Welfare in order to obtain their respective reports as expeditiously
as possible.







(e) The Registrar is
directed to afford all possible preference to the allocation of the
date referred to in paragraph (a) above.







(f) The costs of the
application shall be costs in the cause.’









    1. The matter is remitted
      to the High Court for the hearing of oral evidence in terms of the
      order set out in paragraph 2 above by any other Judge in the event
      that the learned Judge who dealt with the matter may not be
      available and for the further adjudication of the matter as the
      Court may deem meet.











    1. If minded to pursue the
      application, the respondent must, within 30 days of the date of
      this order, notify the Registrar of the High Court, Windhoek, in
      writing of his intention to pursue the application in terms of the
      order set out in paragraph 2 above. If the respondent fails to give
      such notice, or fails to prosecute the application further
      notwithstanding such notification, the order in paragraph 2 above
      will lapse and the application shall be deemed to have been
      withdrawn.











    1. The respondent is
      ordered to pay the appellant’s costs of the appeal limited to
      his opposition of the appeal, such costs to include the costs of
      one instructed and one instructing counsel.





















________________________



SHIVUTE CJ















I agree















______________________



MARITZ JA



















APPEARANCES











APPELLANT:











RESPONDENT:











G Dicks



Instructed by:



Kirsten & Co



CJ Mouton



Instructed by:



Conradie & Damaseb











1
Which provides that: 'Children shall have the right from birth to a
name, the right to acquire a nationality and, subject to legislation
enacted in the best interests of children, as far as possible the
right to know and be cared for by their parents.'





2
Which reads as follows:



'(a) For the first 6
months to visit the said child in Swakopmund every alternative
weekend commencing on Saturday at 10h00 until 16h00 and on Sunday
commencing at 10h00 until 16h00 and to take such child to the
Applicant’s mother’s residential address in Swakopmund
during these times.




  1. Thereafter and until
    such child attends school to take such minor child every
    alternative weekend commencing on Friday afternoon till Sunday at
    16h00 as well as holidays which holidays shall be varied so that
    the applicant shall have the said child with him every alternative
    Christmas holiday.



When
the said child attends school to take such minor child every
alternative weekend commencing on Friday afternoon till Sunday at
16h00 and every alternative long and short school holiday which
holiday shall be varied so that the Applicant shall have the said
child every alternative December holiday.'




3
Article 144 provides: ‘Unless otherwise provided by this
Constitution or Act of Parliament, the general rules of public
international law and international agreements binding upon Namibia
under this Constitution shall form part of the law of Namibia.’