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[2023] ZAGPJHC 1045
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J.J.A v A.A (2022/021236) [2023] ZAGPJHC 1045 (15 September 2023)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION,
JOHANNESBURG
CASE
NO:
2022/021236
NOT REPORTABLE
NOT OF INTEREST TO
OTHER JUDGES
REVISED
15.09.23
In the matter between:
J.J.A
(Identity
Number:[…])
APPLICANT
And
A.A
(Identity
Number:[…])
RESPONDENT
JUDGMENT
WRIGHT J
This
case comes before me, as a matter of urgency, on Friday afternoon,
15 September 2023. The applicant man and the respondent
woman are
divorced but live 400 metres apart in different units in the same
complex. They have two minor children, aged 15 and
9.
The
applicant seeks urgently an order that the primary custody of the
children be awarded to him on an interim basis and that
the
respondent be awarded access to the children on alternate weekends
supervised by her parents. He seeks also an order now
that the
matter be investigated by an expert psychologist and reported on
urgently.
The
applicant alleges that the respondent has recently, and not for the
first time, attempted suicide. He attaches a document
in the form of
a note by the respondent, in which she appears to threaten suicide.
He fears that she will harm the children.
He alleges that as late as
11 September 2023, 4 days ago, she again threatened suicide in a
Whatsapp message. The message appears
to confirm the allegation by
the applicant.
Attached
to the founding affidavit is a letter from the respondent’s
attorney dated 12 September 2023. The applicant is
accused of
physically assaulting the respondent and of other forms of abuse.
In
her answering affidavit, the respondent says that the applicant is
an alcoholic who has assaulted her and threatened to shoot
her. On
one occasion, she says, he was too drunk to drive back from a bar so
he got their 15 years old son to drive.
The
respondent had a nervous breakdown and she admitted herself to a
psychiatric hospital for about 10 days.
The respondent denies
suicidal tendencies but in my view the evidence points to threats of
suicide.
Attached to her
answering affidavit is a letter, dated 13 September 2023, two days
after the last suicide threat, by her psychiatrist
to the effect
that she is stable and can look after her children. The psychiatrist
last saw the respondent on about 15 August
2023.
The respondent attaches
a photo of a broken door to illustrate the applicant’s bad
temper. She says that he broke the door
in a fit of rage while she
was trying to avoid him.
The respondent has
launched a counter-application in which she seeks joint custody, as
is the arrangement at present, and an order
for joint parenting with
the appointment of a Parenting Co-ordinator and the input of the
Family Advocate.
In the applicant’s
reply he denies abuse. He says he broke the door so that he could
stop her committing suicide.
In my view, the
respondent is suicidal, notwithstanding her psychiatrist’s
outdated letter. Her messages are clear evidence
of this.
There are huge disputes
of fact which can’t be decided on paper.
Apart from the suicide
issue, there is nothing in the respondent’s affidavit which is
inherently implausible on paper. I
can’t send the matter to
trial as the case is urgent.
This weekend, that
is from this afternoon, the children, who live most of the time with
the respondent, are scheduled to spend
the weekend with the
applicant and then go back to the respondent.
The respondent is
clearly under immense pressure. The pressure may be caused just by
her refusal to accept that the applicant
no longer loves her, as the
applicant says, or it may be caused by his violence and abuse, as
she says. It may be a combination
of both.
In my view,
granting an order against the respondent may tip her over the edge.
It would be a terrible irony if I granted an order,
the intention of
which is to safeguard the children but the effect were to be the
opposite.
Both Ms Andrews, for the
applicant and Ms Vergano for the respondent informed me that there
is a long delay, perhaps 6 months
to a year for the Family Advocate
to produce a report. It appears also that experts, like
psychologists may take months to consult
and prepare reports.
It occurred to me that
the respondent’s psychiatrist could be asked to do an updated
report but that would take time and
fairness would then require that
the respondent be assessed by an expert of the applicant’s
choice. Then the experts would
need to meet and do a joint minute.
All of this would take time. I need to decide the matter now.
In my view, the position
at present must prevail, namely that the children remain mostly in
the custody of the respondent, subject
to the present weekend
arrangement. I shall request the Family Advocate to do a report as
soon as practically possible.
Costs should be
reserved.
ORDER
X as amended. -
GC Wright
Judge of the High
Court
Gauteng Division,
Johannesburg
HEARD
: 15 September 2023
DELIVERED
: 15 September 2023
APPEARANCES
:
APPLICANT
Adv Raquel Andrews
082 414 7455
randrews@olamide.co.za
Instructed
by
TF Kruger Incorporated
011 766 1428/9
kruger@krugerattorney.co.za
debbie@krugerattorney.co.za
RESPONDENT
Adv Viviano Vergano
082 536 4969
advocatevergano@gmail.com
Instructed
by
Casper Le Roux
Incorporated
011 412 2820/
010 549 1630
casper@cjleroux.co.za