About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Port Elizabeth
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Port Elizabeth
>>
2013
>>
[2013] ZAECPEHC 1
|
|
Noqekwa v Noqekwa (2456/2012) [2013] ZAECPEHC 1 (10 January 2013)
IN THE HIGH COURT
OF SOUTH AFRICA
(EASTERN
CAPE, PORT ELIZABETH)
CASE NO: 2456/2012
Date
Heard: 8 January 2013
Date
Delivered: 10 January 2013
In
the matter between:
BANTU
RAYMOND NOQEKWA
Applicant
and
NOTUKELA
ETHEL NOQEKWA
Respondent
J
U D G M E N T
GOOSEN, J:
This is an application
brought on an urgent basis in which the applicant seeks an order
directing a clinical psychologist to conduct
an assessment as to
whether or not it is in the best interests of three minor children
to commence schooling at Merrifield Preparatory
School in East
London on 16 January 2013. The application was brought on a
semi-urgent basis in December 2012, the urgency arising
from facts
which came to the attention of the applicant in November 2012 and by
virtue of the fact that the new academic year
commences on 16
January 2013. When the matter was argued before me counsel for the
respondent indicated that the respondent
does not take issue with
the urgency with which the matter was brought, given that the
application concerns the interests of
minor children.
The applicant and
respondent were divorced from one another on 9 October 2012. The
decree of divorce issued by this court incorporates
a deed of
settlement entered into between the parties on 8 October 2012 which
regulates,
inter alia
, the primary care and maintenance of
three minor children born of the marriage between the parties. The
three minor children
are sons currently aged 11, 8 and 4 years of
age. In terms of the deed of settlement it was agreed that the
respondent would
be the primary carer of the children and that the
children would primarily reside with the respondent. At the time of
the conclusion
of the deed of settlement, the respondent was in the
process of relocating to East London. Accordingly, the deed of
settlement
makes provision for the children to remain in Port
Elizabeth with the applicant until the end of the school year in
2012 at which
stage they would relocate to East London.
The circumstances giving
rise to the application are briefly the following. According to the
applicant he was informed on 21
November 2012 that the respondent
intended enrolling the children at Merrifield Preparatory School in
East London. In order
to do so it was necessary for the children to
attend an assessment and interview at the school to secure their
enrolment for
the new academic year. The respondent made
arrangements for the children to be assessed and interviewed on the
23
rd
of November 2012, to which end they travelled with
her to East London. At that stage the eldest son had still to write
one examination
to complete his academic year at St. Dominic’s
Priory in Port Elizabeth. The respondent returned with the eldest
son who
wrote that examination on the 26
th
of November
and thereafter left for East London. She did not return the younger
children to Port Elizabeth. When the applicant
contacted Merrifield
Preparatory School to enquire as to the outcome of the assessment
conducted by that school he received an
email communication from the
head of the school which indicated that Merrifield Preparatory
School would be prepared to admit
the elder two children on
condition that the two children repeat the grades they had just
completed at St. Dominic’s Priory.
It was indicated that the
school would only consider enrolling the youngest child if he spent
another year in a playgroup prior
to commencing his formal
schooling. The email communication from the head of Merrifield
Preparatory indicates that in the assessment
of the children they,
and in particular the youngest child, presented as emotionally
traumatised. It was this that prompted
the applicant to raise his
concern about the welfare of the children with the respondent’s
legal representatives. He proposed
that the children be assessed by
a psychologist to determine whether it was in their best interests
to be enrolled at Merrifield
and that pending such assessment they
remain in his care in Port Elizabeth. When this proposal did not
meet with any satisfactory
response and this application was
launched in December 2012.
The respondent states in
her answering affidavit that immediately after relocating to East
London in October last year she commenced
the process of finding a
school for the children. She applied at Selborne College, Cambridge
and Stirling. No places were available
at these schools. She was,
however, informed by the headmaster of Stirling that the children
would be placed on a waiting list
for admission in 2013 and that he
was confident that they would be admitted.
The respondent further
states that by way of precaution she also applied at Merrifield
Preparatory School. Since this school
has high academic standards
and strict selection criteria the children were required to write
entrance examinations. She further
states that the outcome of the
examinations, as reflected in the email from Merrifield upon which
the applicant relies, should
be viewed in the context of the
children having struggled academically for a number of years. She
ascribed this to their adverse
home circumstances and allegedly
violent and abusive conduct of the applicant towards her whilst they
were married.
The relief sought in the
notice of motion is divided in two parts, the second part being in
respect of permanent relief which
arises only in the event of
certain findings being made pursuant to the relief sought in part A.
It is accordingly only necessary
to consider the relief sought in
part A of the notice of motion. In that part the applicant seeks an
order formulated in the
following terms:
“
2. Directing Dr.
Gillian Smale, a clinical psychologist, to forthwith conduct an
assessment of the minor children and their parents
and to report to
this Honourable Court as to whether or not it will serve the
childrens’ best interests to be enrolled at
Merrifield
Preparatory School in East London on 16 January 2013;
2.2.1 That in the event
of Dr. Smale recommending that the childrens’ best interests
will be served by enrolling in Merrifield
Preparatory School on 16
January 2013, to in that event make recommendations as to the
mechanisms to be put in place in making
the transitions of schools as
least traumatising to the children as possible;
2.2.2 That in the event
of Dr. Smale recommending that the childrens’ best interests
will not be served by enrolling in Merrifield
Preparatory School the
matter be referred to the offices of the Family Advocate to forthwith
schedule an enquiry and investigate
the bests interests of the minor
children with the input and assistance of Dr. Smale and to report to
this Honourable Court with
its recommendations in respect of:
2.2.2.1 the primary care
and residence of the minor children and in particular whether it
would serve the childrens’ best
interests to permanently
relocate and reside with the respondent in East London and remain in
her primary care; and
2.2.2.2 the scope of the
parties’ future contact with the minor children.
2.2.3 That in the event
of paragraph 2.2.2.1 above becoming applicable, then pending the
outcome of the Family Advocate’s
investigation, referred to in
paragraph 2.2.2.2 above, that the minor children shall continue to
primarily reside with the applicant
and commence their school year at
St. Dominic’s Priory School in January 2013, subject to
reasonable contact between respondent
and the minor children by the
respondent visiting the children in Port Elizabeth every weekend.”
During the course of
argument the applicant’s counsel sought an amendment to the
notice of motion to which I will revert
hereunder. At the
commencement of argument a letter addressed to the applicant’s
attorneys by Dr. Gillian Smale was handed
up by agreement. That
letter records the following:
“
This document
confirms that my investigation of the Noqekwa parents and their three
minor children commenced yesterday. Such investigations
are
typically long and involved, and the final report will therefore only
be available within a period of 4 – 6 weeks. I
stipulated this
time frame when I undertook to do the assessment, also indicating
that because of the Christmas holiday period,
it would only commence
on January, 7.
In the brief time I have
spent interviewing both parents and perusing the relevant school
documents, it is apparent that the matter
is far more complicated
than simply choosing the appropriate school for these children.
Other important factors which need to
be investigated are that the
childrens’ emotional and physical needs, as well as the
background conflict between the parents
leading to the current
schooling deadlock.
The background
information I have received so far shows serious discrepancies
between the two parents’ understanding of the
situation. This
also indicates a need for a slow, systematic and cautious
investigation which will require much more time. For
this reason I
am also not able to predict at this time what my final
recommendations will be in terms of primary care or school
placement.”
It is of course
immediately apparent that the proposed exercise to be undertaken by
Dr. Gillian Smale will bear no fruit prior
to the 16
th
of
January 2013 when the new school year commences. It also bears
noting that according to Dr. Smale’s letter, she informed
the
applicant of the projected time frame when she agreed to undertake
the assessment and that it could only commence on 7 January
2013.
This being so it appears that the applicant and his representatives
were aware, at the stage that the application was
launched, that the
enquiry by Dr. Smale could not be completed prior to the
commencement of the academic year on 16 January 2013.
The relevance
of this will become apparent hereunder.
In order to overcome the
difficulty posed by the manner in which the relief is formulated,
applicant’s counsel sought an
amendment to the relief sought
which deleted the reference to the 16
th
of January 2013 and provided that, pending the investigation, the
minor children be enrolled at St. Dominic’s Priory in
Port
Elizabeth or at Brylin Primary School
1
and accordingly remain in the care of the applicant for this
purpose. During argument I raised my concern that the relief
sought, if granted, would in any event render the exercise academic
since there is nothing on the papers to suggest that it would
be
possible after the 16
th
of January for the children to be enrolled at Merrifield Preparatory
School in the event that it was found that it was in fact
in their
best interests to do so. It was suggested that the amended relief
would address this concern.
The application is
founded upon a concern about what is presented as a discrepancy
between the school assessment reports obtained
from St. Dominic’s
Priory and that reflected in the assessment obtained from Merrifield
Preparatory School as well as the
fact that Merrifield Preparatory
School reported that the children presented as emotionally
traumatised. It is this concern
which caused the applicant to raise
the question as to whether it is in the best interests of the
children that they attend Merrifield
Preparatory School.
Significantly the applicant does not suggest that it is not in the
children’s best interests that
they relocate to East London or
that they should be in the primary care of the respondent. Nor is
it suggested that there is
any difficulty associated with the
children attending Merrifield Preparatory School. The primary issue
upon which the applicant
bases the application is the fact that
according to the academic assessment conducted by Merrifield
Preparatory School the three
children are not educationally ready to
advance to the next grade level in their education. Applicant also
relies on the report
regarding the emotional instability and trauma
experienced by the children. The fact that the children would be
required to
repeat a grade, it was suggested, would result in their
educational “retardation” and that this should be
investigated
before they are allowed to relocate. In developing
this submission it was pointed out that the academic assessment
undertaken
by Merrifield Preparatory School is in stark contrast to
that reflected in the reports presented by St. Dominic’s
Priory
and Brylin, in that these schools had certified that the
children could advance to the next level of education. In support
of
this, the applicant relied on a report by the principal of St.
Dominic’s Priory Junior School, Mr Beadon, regarding the
eldest child, K, and that of the class teacher of the younger child,
A. Based on these reports and the fact that it is recorded
that the
children made significant progress during the year, it was suggested
that the improved circumstances of the children
occurred at a time
when the children were in the care of the applicant and at a stage
when the divorce had been finalised. This,
so the argument went,
indicated that it was not in their best interest to relocate until
the question had been properly and fully
investigated.
Whilst it is indeed so
that the reports of St. Dominic’s indicate that the older
children’s education performance
showed improvement, the
reports do not point to stark differences between their academic
results at St. Dominic’s and the
assessment undertaken by
Merrifield.
The report in respect of
the eldest child K, who was in grade 5, records the following:
“
In term 4 [K]
showed glimpses of his true potential. Despite the fact that he no
longer received extra lessons, he often delivered
work that was of
exceptional quality.
During the final exams, many of his marks
were well above expectation, often exceeding the class average
.
His final report reflected his remarkable improvement, and if he can
continue the trend he showed in Grade 5, [K] will soon fulfil
his
true potential.”
(Emphasis added).
The underlined portion
is not, however, borne out by the term 4 results annexed to the
applicant’s papers. These results
reflect some improvement
over the year but they also indicate clearly that K did not achieve
any results which matched or exceeded
the grade average, contrary to
the school principal’s assertion.
In the case of the
younger child, A, the teacher’s report reflects a child who
has struggled significantly and whose home
circumstances have
adversely impacted upon his performance. The report notes that:
“
He is clearly a
sensitive little boy and any upsets at home have a direct impact on
his standard of work.”
It is common cause
between the parties that the divorce proceedings were extremely
acrimonious and that the home circumstances
prior to the divorce
have taken a toll on the minor children. The reports from St.
Dominic’s Priory and Brylin Primary
School confirm this. It
is therefore not surprising that with the finalisation of the
divorce proceedings in October 2012 that
a greater degree of
stability and certainty in the home circumstances may have
contributed to an improvement in the children’s
wellbeing and
therefore their academic and schooling achievements. It is of
course also not surprising that the prospect of
relocation and
indeed the fact of relocation itself would have a negative effect on
the children and may result in them suffering
emotional turmoil. It
was never an issue between the parties in the divorce proceedings
that the respondent should be given
primary care of the minor
children and that they should live with her. At the stage that the
divorce settlement was reached
the parties knew and accepted that
that would involve the children relocating to East London where the
children would be enrolled
in new schools for 2013. It must be
accepted therefore, that the parties knew and understood that this
would result in some
measure of instability and even emotional
stress and turmoil for the children when that event occurred. To
find otherwise would
suggest that the parents entered into the
agreement without giving any consideration whatsoever to the
interests of the minor
children. There is no reason to suppose that
the parents would have been so irresponsible.
It was argued that
circumstances have now changed and that the applicant now has
information which suggests that the children
are emotionally
traumatised and that their school circumstances would be in contrast
to that which would occur in Port Elizabeth.
These, it was
submitted, constitute changed circumstances sufficient to warrant
the investigation which this application seeks
to initiate.
I disagree. I accept
that at the time that the children were interviewed by Merrifield
Preparatory School that they presented
as children in emotional
turmoil. No doubt the circumstances in which the respondent
conducted the assessments at Merrifield
and the circumstances in
which the children were removed to East London must have contributed
to their emotional turmoil. It
is apparent from a reading of the
papers as a whole that although the immediate acrimony of the
divorce proceedings is now over,
the relationship between the
parents remains a fraught one which undoubtedly must still be a
source of anguish and turmoil for
the children. On the applicant’s
own version he and the respondent do not communicate with one
another other than by text
messages.
The fact that the
children are experiencing emotional turmoil in circumstances where
such turmoil is reasonably to be expected,
cannot of itself
necessitate a psychological assessment for the purposes envisaged in
the relief sought in this application.
Something more is required.
In this instance the applicant has not laid any basis upon which it
may be said that the relocation
to East London and the children’s
enrolment in another school is not in their best interests. It was
suggested in argument
that the status
quo
should be retained
and that that would be in the best interests of the children in the
light of the information now at hand.
By this it was meant that the
children should remain in Port Elizabeth and that they should
commence the academic year by continuing
their schooling at St.
Dominic’s Priory. Two difficulties arise in respect of this
contention. The first is that there
is no indication on the papers
before me that the minor children can, as a matter of fact, continue
their schooling at St. Dominic’s
and Brylin in Port Elizabeth.
No indication is given on the papers that they have been enrolled
at those schools for this coming
academic year or that any enquiries
have been made in this regard. The second, and more significant
difficulty, is that the
children have as a matter of fact already
relocated to East London and are residing with the respondent. The
fulltime carer
previously employed by the parties has also relocated
to East London where she will continue to assist the respondent in
the
day to day care of the minor children and there is no indication
on the applicant’s papers as to what arrangements have been
made, even in the interim, for the care and wellbeing of the minor
children should they remain in Port Elizabeth pending the
investigation by Dr Smale. Although there is reference in the
applicant’s papers to an intention to employ the carer to
assist with the care of the children, I was informed that no such
arrangement has in fact been made in the light of the fact
that the
carer has already relocated to East London. There is accordingly
nothing of substance in the papers upon which I am
able to find that
the interests of the children, in remaining in Port Elizabeth, can
be protected or will be adequately catered
for.
The application too is
not based on any specific allegation that it is not in the best
interests of the minor children to relocate
to East London or for
that matter to take up positions at Merrifield Preparatory School.
In respect of the two elder children
it is apparent that they have
had significant difficulties in their academic work even whilst at
St. Dominic’s Priory and
although their circumstances have
improved the trauma and turmoil experienced by them during the
course of 2012 has had its toll.
The email communication from
Merrifield Preparatory School indicates that in their assessment of
the minor children their academic
performance is not of a standard
which would permit them to cope with advancing to their next grade
and that they would benefit
from repeating the grades that they have
just completed at St. Dominic’s and Brylin. Significantly,
the terms of the investigation
to be carried out by Dr Smale does
not address the circumstances of the youngest child whom it was
reported is traumatised. Merrifield
does not intend to enrol the
youngest child. He will instead attend a playgroup before being
considered for enrolment next year.
The applicant nowhere suggests
that because the youngest child, who is four years old, is
traumatised he should be placed in
the care of the applicant pending
an enquiry as to whether he should be permitted to relocate to East
London and be placed in
the care of the respondent. That is not the
basis upon which the application is made.
This court is concerned
only with what is in the best interests of the minor children. It
must however be accepted that the break-up
of a family home or
changes to schools and relocation to another city are all factors
which undoubtedly can, and more often than
not will, induce anxiety
and emotional turmoil in young children. In circumstances such as
these where the parties have become
divorced and their life
circumstances are such that they will pursue careers in different
cities some impact on the children
cannot be avoided. It can only
be hoped that the parties themselves will approach those
circumstances with a measure of maturity
and sensitivity and that
they will make every effort to minimise the most traumatic aspects
of such circumstances for the children.
Where they haven’t
done so, and do not appear resolute to do so, this court will be
astute to avoid compounding the anxiety
and insecurity that the
children may experience by intervening in circumstances where such
intervention is not warranted or where
the form of such intervention
will itself give rise to further emotional turmoil. In my view to
grant the relief sought by the
applicant, even in its amended form,
would do nothing other than to compound an already difficult
situation for the minor children
and will exacerbate the insecurity
that they currently face. In the circumstances to grant such relief
would not be in the best
interests of the minor children.
In the result the
applicant’s application cannot succeed. In respect of costs
it was argued by the respondent that the
costs should follow the
result. The applicant in contrast submitted that in the light of
the respondent’s high-handed
handling of the relocation, the
fact that she acted in breach of the terms of the agreement
concluded at the stage of the divorce
and in the light of the
respondent’s rebuffing of attempts to mediate the dispute in
December that even if the applicant
is unsuccessful the respondent
should be ordered to pay the costs of the application. Whilst it
does appear that the respondent
may have acted in a somewhat
high-handed manner in the relocation of the children to East London,
I cannot lose sight of the
fact that the relief sought was doomed
from the outset. Dr Smale had indicated the time frames which would
apply to the investigation
and those time frames rendered it
impossible to come to a resolution before the commencement of the
school academic year, a factor
which brought into play a range of
considerations not adequately or properly addressed in the
applicant’s papers.
An award of costs is
always in the discretion of the court, and such discretion is to be
exercised having regard to circumstances
in which the application is
brought as well as the subject matter of the dispute. Although I am
mindful of the fact that the
interests of minor children animated
the decision to bring the application I am nevertheless of the view
that the ordinary rule
in respect of costs, namely that they follow
the result, should apply.
In the result I make the
following order:
The application is
dismissed with costs.
__________________________
G GOOSEN
JUDGE OF THE HIGH
COURT
APPEARANCES
:
FOR APPLICANT
: Mr
B Dyke, instructed by
Kaplan Blumberg
Attorneys
FOR RESPONDENT
: Mr
N Mullins, instructed by
Cecil Kerbel
Attorneys
1
It is common cause that the two older children attended St.
Dominic’s Priory during 2012 and that the youngest child
attended the Montessori Pre-Primary at Brylin Primary School.