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[2013] ZAECPEHC 10
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Family Advocate v R (2004/2012) [2013] ZAECPEHC 10 (15 February 2013)
IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE – PORT
ELIZABETH
Case No: 2004/2012
In
the matter between
THE FAMILY ADVOCATE
.........................................................
Applicant
and
G
C R
..................................................................................
Respondent
In re: The minor children, J W R
and G J R
JUDGMENT
REVELAS J
[1] This matter concerns a
ten-year-old boy, J, and his three-year-old sister G, who were
brought to South Africa from the United
Kingdom by their mother (the
respondent) on 24 December 2011, without the consent of her husband,
and the three of them have remained
here since. At the behest of Mr
Remy, the father of the two children, who is still married to the
respondent, the applicant brought
this application for the immediate
return of the children to the jurisdiction of the Central Authority
for England and Wales.
[2] The application is brought in
terms article 8 of the Convention on the Civil Aspects of
International Child Abduction, adopted
on 25 October 1980 at the
Hague (“the Hague Convention” or “the Convention”)
read with the Children’s
Act, No. 38 of 2005 (“the
Children’s Act”). The provisions of the Hague Convention
are, in terms of section 275
of the Children’s Act, subject to
those of the Children’s Act.
[3] In terms of article 8 of the
Convention, any person, institution, or body who claims that a child
has been removed in breach
of “custody rights” (rights
relating to the care of the person of the child and, in particular,
the right to determine
the child’s place of residence, as
defined in article 5), may apply either to the Central Authority of
the child’s
habitual residence or to the Central Authority of
any other Contracting State for assistance in securing the return of
the chid
or children concerned. Article 3 of the Convention deems the
removal or retention of a child unlawful where it is in breach of the
custody rights as aforesaid, under the law of the State in which the
child was habitually resident immediately before the removal
or
retention; and at the time of removal or retention, those rights were
actually exercised, either jointly or alone, or would
have been so
exercised, but for the removal or retention. It has now been
authoritatively established that, for purposes of the
convention, a
parent’s right to prevent the removal of a child from the
jurisdiction concerned, or at least to withhold consent
to such
removal, is a right to determine where the child is to live and thus
falls within the ambit of “rights of custody”
envisaged
in articles 3 and 5 of the Convention. (See:
KG
v
CB and
Others
[2012] 2 All SA 366
(SCA) at paragraph 26 ). It can
therefore be accepted that Mr Remy’s custody rights have been
infringed under the Convention.
[4] The primary purpose of the
convention was summarized in
KG v GB
at paragraph 19 of her
judgment by van Heerden JA as follows:
“
to
secure the prompt return (usually to the country of their habitual
residence) of children wrongfully removed to or retained in
any
Contracting State,
viz
to
restore the
status
quo ante
the
wrongful removal or retention as expeditiously as possible,
so that
the
custody and similar
issues in respect of the child can be adjudicated by the courts of
the state of the child’s habitual residence.
The
Convention is premised on his assumption that the abduction of a
child will generally be prejudicial to his or her welfare and
that,
in the vast majority of cases, it will be in the best interests of
the child to return him or her to the state of habitual
residence.
The underlying premise is that the authorities best placed to resolve
the merits of a custody dispute are the courts
of the state to which
the child has been abducted”.
[5] In terms of article 7(
f
)
of the convention, one of the obligations placed upon Central
Authorities is to “initiate or facilitate the institution
of
judicial or administrative proceedings with the view to obtaining the
return of the child.” Hence this application was
brought by the
applicant for the return of the children, on the basis that the
father’s custody rights were breached. In
these proceedings,
the two children in question were represented by a legal
representative (Mr E Dyer of the Port Elizabeth Bar),
as provided for
in section 279 of the Children’s Act.
FACTUAL BACKGROUND
[6] The children’s father (Mr
Remy), moved to England in 2004 to explore job opportunities with the
view to immigrate to that
country and as a stonemason by profession
found an employment position in England. His mother and sister had
also moved to England
where they presently still live. In May 2005,
the respondent and J joined him. The respondent never found
employment in England
and according to her, she had made certain
career sacrifices by following her husband to England where she was
never really was
happy it seems. J, who was born in South Africa,
commenced with school in England in 2006. G was born three years
later. England
thus became the habitual place of residence of this
family, although none of them, not even G, became English citizens.
[7] For reasons that are not
entirely clear due to factual disputes on the papers, the marriage
relationship between Mr Remy and
the respondent became an acrimonious
one, marked by enmity and frequent bitter fights. According to Mr
Remy, the respondent became
bored with her life in England, did not
want to work and established communications with male acquaintances
by way of electronic
mail, which he found inconsistent with the
conduct of a loving and faithful wife.
[8] According to the respondent, Mr
Remy abused her physically and emotionally to the extent that she
felt she had to leave England.
She also claimed that Mr Remy was
emotionally abusive towards J, in that he had unrealistic
expectations regarding his achievements
in sport, school and other
activities. J was under constant pressure from his father to achieve
at the highest level in all aspects
of his life, which made him very
anxious. When the matter was argued, the parties had already been in
the process of divorcing
each other for some time.
THE RESPONDENT’S DEFENCE
AND THE APPLICABLE PRINCIPLES
[9] The respondent challenged the
application brought by the applicant by relying on the defences in
article 13 (b) of the Convention,
claiming that there was a grave
risk that the return of the children (and also herself), would expose
them to physical and psychological
harm or otherwise place them in an
in an intolerable situation.
[10] A discretion is granted to the
judicial or administrative authority (in this case, this Court), to
refuse to order the return
of a child in article 13 of the
Convention. It reads as follows:
“
Notwithstanding
the provisions of the preceding article, the judicial or
administrative authority of the requested State is not
bound to order
the return of the child if the person, institution, or other body
which opposes its return established that-
the person,
institution or other body having the care of the person of the child
was not actually
exercising
the custody rights at the time of
removal or retention, or had consented to or subsequently acquiesced
in the removal or retention;
or
there
is a grave risk that his or her return would expose the child to
physical or psychological harm or otherwise place the child
in an
intolerable situation.
The judicial or
administrative authority may also refuse to order the return of the
child if it finds that the child objects to
being returned and has
attained an age and degree of maturity at which it is appropriate to
take account of its views. In considering
the circumstances referred
to in this article, the judicial and administrative authorities shall
take into account the information
relating to the social background
of the child provided by the Central Authority or other competent
authority of the child’s
habitual residence”.
[11] Since the respondent removed
the children without her husband’s consent the burden of proof
is on her to establish her
defence in terms of article 13(b) of the
Convention on a preponderance of probabilities as determined in
Penello v Penello (Chief Family Advocate as amicus curiae)
2004 (2) SA 117
(SCA) at paragraph 38. Much evidence was presented in
the form of affidavits in support of the defence relied on by the
respondent.
In
Sonderup v Tondelli and Others
2001 (1) SA 1171
(CC) at paragraph 29, the Constitutional Court
warned that it would be quite contrary to the intention and terms of
the Convention
were a court hearing an application brought in terms
of the Convention to allow the proceedings to be converted into a
custody
application.
[12] In
Penello v Penello
(
supra
)
at paragraphs 32-34, this point was stressed, with reference to
courts in other contracting states where the view is that a
restrictive
interpretation should be given to the defences in article
13(1)(b) and that efforts to convert article 13(1)(b) into a
substitution
for a ‘best interest determination’ were by
and large resisted.
[13] Then there are also the
provisions of South African legislation which are to be considered,
such as section 28(2) of the Constitution
which provides that “
[a]
child’s best interests are of paramount importance in every
matter concerning a child”,
and also
s
ection 9 of
the Children’s Act which provides that “
[i]n all
matters concerning the care, protection and well-being of a child,
the standard that the child’s best interests is
of paramount
importance, must be applied
”.
[14] In
KG v CB,
(
supra
)
at paragraph 48, van Heerden JA referred to the case of the Supreme
Court of the United Kingdom (formerly the House of Lords),
of
In
Re (Children) (Wrongful Removal: Exceptions to Return
),
[2011] 4
All ER 517
(SC), where an approach similar to that adopted by the
Constitutional Court in
Sonderup v Sondelli
was adopted
(courts hearing applications under the Convention should not convert
the proceeding into custody hearings). The Supreme
Court pointed out
that “t
here is no provision expressly requiring the court
hearing a Hague Convention case to make the best interest of the
child its primary
consideration and: still less can we accept the
argument . . . that s (1)(1) of the 1989 Act [the United Kingdom
Children’s
Act 1989] applies so as to
make them the
paramount consideration
”. It was also recognized by the
judges that the assumption that the immediate return of the child to
the country of habitual
residence may be rebutted “
albeit in
a limited range of circumstances, but all of them inspired by the
best interests of the child
.” These circumstances were
summarised as follows:
“
Thus, the
requested state may decline to order the return of the child if
proceedings were begun more than a year after her removal
and she is
now settled in her new environment (art 12); . . . or ‘if the
child objects to being returned and has exercised
an age and maturity
at which it is appropriate to take account of her views (art 13); or,
if there is a grave risk that his or
her return would expose the
child to physical or psychological harm or otherwise place the child
in an intolerable situation’
(art 13(b)). These are all
situations in which the general underlying assumptions about what
will serve the best interests of the
child may not be valid…”.
The following statement of the
Supreme Court leaves one in little doubt as to the degree of
adherence to the prescripts of the Convention
which is required when
deliberating an application of this nature:
“
We
conclude therefore, that … the Hague Convention … [has]
been devised with the best interests of children generally,
and of
the individual children involved in such proceedings, as a primary
consideration”.
[15] Van Heerden JA pointed out in
KG v GB
(paragraph 50), that in
Sonderup v
Tondelli
(paragraph 44) and
Pennello v Pennello
(paragraph 35), the
question whether South African courts should follow the stringent
tests set by courts in other countries was
left open, and concluded
that the correct approach to be adopted was to be found in the
judgment of the United Kingdom Supreme
Court cited in the aforegoing
paragraphs.
THE
EVIDENCE
[16] The Evidence presented in
support of the respondent’s defences in terms of article 13(b)
of the Convention were contained
in various affidavits.
[17] Mr Dyer deposed to an affidavit
wherein he reported on the various consultations he had with
psychologists, the respondent
and the children. Mr Dion Swartz, a
psychologist, was the first person to speak to Mr Dyer. He reported
that G could not truly
appreciate the nature of her relationship with
her parents. Given her age, that is hardly surprising. It was
accepted that because
her lot is so inextricably tied to J’s,
the observations regarding J would necessarily and logically impact
simultaneously
on her.
[18] According to Mr Swartz, J
displayed dismay at the thought of returning to the United Kingdom.
It was not mentioned in Mr Swartz’
report, but the latter
reported to Mr Dyer that J had mentioned to him that his father
verbally and physically abused him. Mr Swartz
recommended that J be
permitted to stay with his mother and not be returned to England, as
that was his express wish as well as
in his best interests.
[19] Mr Dyer initially formed the
opinion during his own personal interview with J, that he was
influenced by his mother, having
been exposed only to her for one
year, but upon more probing, he nonetheless established that the
information and opinions J provided
him with, were his own. Mr Dyer
concluded that J’s ability to reason and express himself on a
number of topics indicated
that he was capable of expressing an
opinion of his own which differed from that of his mother, if that
were the case. Therefore,
based on the information available to him,
Mr Dyer concluded that J was mature enough to express an opinion,
which should be taken
into account and accorded due weight.
[20] The psychological reports of a
clinical psychologist (Ms Wendy Nunn) and a counselling psychologist
(Ms Tamara Jakins) were
also placed before me. Ms Nunn was told by J
of incidents during which his father had insulted him and had once
given him a hiding
with a belt because he tripped a boy at school.
Other than that, J’s hidings from his father were given by
using his hand.
Ms Nunn concluded that the presence of a mild anxiety
condition in J was probably the result of his failed attempts and
helplessness
about fixing things in his life. She noted that he was
reluctant to admit to even slight shortcomings, which he perceives to
be
weak and demeaning. Confirming what the respondent had deposed to
in her affidavit, J had told Ms Nunn that if he lost at sport
his
father would become upset. His father also hit him if he cried about
something. He feared his father whenever the latter said:
“we
need to have a talk” because inevitably that foreboded a
hiding. He was also reluctant to speak to his father over
the
telephone because of the verbal abuse. For instance he reported that
his father was often angered by his son’s so-called
“big
boy attitude” which he always said he would sort out “when
I get back home”. J expressed fear at returning
to his father,
also because of his father’s threats of what he might do to his
mother, and added that “he treated me
badly but my mother even
worse”.
[21] Ms Nunn also noted that there
would be little or no emotional support for his mother in England in
the event of further incidents
of domestic violence occurring, which,
given the history of the parties, is highly likely. Ms Nunn was of
the opinion that these
incidents will worsen. There have been ample
indications that telephonic contact with his father sets J back
emotionally and he
continues to have nightmares. She believes him to
be vulnerable and emotionally fragile and not robust enough to deal
with the
fears associated with being with his father.
[22] Ms Nunn agreed with the
suggestion of supervised contact with his father if he were to be
returned to the United Kingdom, but
emphasised the lack of emotional
support the family could draw on in the United Kingdom. She was of
the view that the absence of
such support would have serious
psychological consequences for them, because such isolation, was
already experienced before their
return to South Africa.
[23] Most importantly, Ms Nunn
observed that J had adapted well in South Africa, as being here has
placed a safe distance between
him and his perceived danger from his
father. She noted that J “
flourished under the support and
care from his extended family and school, both of which have provided
a safe environment where
he is supported and affirmed, by whom he is
and guided and disciplined in ways that are not threatening or
humiliating
”. These optimal circumstances she stressed
could only continue in the United Kingdom if the aforesaid
circumstances could
be duplicated there. For obvious reasons that is
no longer possible.
[24] Mr Dyer was of the opinion that
a return to the United Kingdom, would in all likelihood leave the
respondent without a support
structure and the resulting stress will
impact negatively on J, who has his own existing fears about contact
with his father.
[25] The family advocate, Ms Botha,
was of the view that J was not mature enough to form his own
independent opinion, which should
inform my decision in this matter.
[26] Ms Nunn initially stated that J
did “
not have the mental capacity to understand the gravity
of making his own submissions and to understand the potential
consequences”.
“
J
is ten years old and does not have the mental capacity to understand
the gravity of making his own submissions and to understand
the
potential consequences. He is anxious about returning to the United
Kingdom and his father, and is also protective of his mother,
so he
will make statements reflecting these particular concerns which could
be distorted as a result of his anxiety and fear of
what will happen
if he, his sister and his mother are forced to return to the United
Kingdom. He already believes, as a result
of what his father said,
that she will be sent to jail when she returns there. It took me
three sessions to break through that
fear and anxiety to uncover the
truth about what is happening and not just what he is hearing from
the adults, i.e. his mother
and father and possibly family members as
well. He will speak his “truth” as he understands it, and
thus not capable
of understanding that there could be consequences”.
[27] Ms Nunn then filed a
supplementary report wherein she revised her views as aforesaid and
stated as follows:
“
Undersigned
would like to stress that she was under the impression that the above
question related to the minor child making a legal
submission in
court hence the concerns expresses above. In terms of Mr Naidu’s
request for clarification, particularly regarding
section 10 of the
Children’s Act 38/2005, undersigned would like to stress that
the minor child complies with the requirements
of the above section
i.e. that his is of an age, maturity and stage of development as to
be able to participate in this matter
that concerns him and has
participated in an appropriate way. It was clear from the evaluation
process that he has the maturity
to formulate his feelings and
opinions about his situation, particularly about returning to the
United Kingdom, as well as the
ability to understand the consequences
of his feelings and opinions”.
[28] The different opinions
regarding J’s level of maturity persuaded me to interview J
myself. Futhermore, many of Ms Nunn’s
observations would have
been of more assistance in a custody hearing. After the matter was
argued, Mr Dyer fetched J (who did not
attend the proceedings), and
brought him to my chambers where the two of us had an informal
conversation which lasted no more than
30 minutes.
[29] As did Mr Dyer, I also observed
the respondent’s strong influence on her son. However, he was
also quite capable of expressing
his own independent views. J was
quite willing to concede that his father had good points. In my view,
Ms Nunn’s and Mr Dyer’s
observations could not be
faulted, particularly regarding the pressure placed on J by his
father to achieve on so many levels and
always unsuccessfully seeking
his father’s approval. This I observed from his tendency to
boast.
[30] J did not strike me as
particularly mature for his age. He seemed troubled and anxious, but
nonetheless very talkative and
friendly. In my opinion, he was
sufficiently mature for a court to take his views into account. He
firmly believes that once they
are returned to England their father
will not allow them to come home. J is adamant that he does not want
to go to his father under
any circumstances and dreads the prospect
of returning to England. Apart from fearing retaliation from his
father against him for
not wanting to return, he feared the same fate
would also befall his mother. The telephonic interactions with his
father on the
telephone is very hurtful to him. He said his father
even told him once that he wants nothing to do with him and must “get
off the line” and put his sister “on the phone”. He
also told me that his father often called him a “moffie”
(derogatory term for gay persons). According to the respondent, he
referred to her family as “hotnots” (a derogatory
and
racist term for South African coloured persons). All the evidence
presented suggested when he speaks to J, that Mr Remy is
prone to
belittling his son as a method of communication. J expressed the hope
that one day in the future, it would be possible
to visit his father
though, but was adamant that it could not happen at present. It is
also significant that the respondent said
that one of the main
reasons why she left her husband was his treatment of J and the
impact that this treatment had on him.
[31] Based on what J had told me, I
concluded that his objections are genuine and that he actually dreads
the prospect of going
back to his father. I believe that it would be
detrimental to J, who has settled in well in his new home and school
to order the
immediate return of the children to England. J told me
that he enjoys his school and participates in several activities.
According
to him, his life has improved since being back in South
Africa. He told me that G also enjoys her play school. He clearly is
very
protective of his little sister, which impression is
corroborated by other evidence in the affidavits.
DISCUSSION
[32] In my view, the fact that a
child who has reached the required level of maturity objects to being
returned to the country from
which he was unlawfully removed is
per
se,
is no reason for refusing to grant the relief sought under
the Convention. There must be clear and discernable grounds which, if
assessed objectively, would justify such a refusal. Based on what I
was told by J and the evidence led, J’s fears and anxieties
which lie at the heart of his objections to return, are very real and
ought not to be discounted in these deliberations. I am convinced
that to send J back to England, would be a great emotional setback
for him. This is something which inevitably occurs to a certain
extent in most matters of this nature, but J’s objection is not
the only factor I had to consider.
[33] The applicant accepted that the
respondent’s complaints regarding Mr Remy’s abuse of her
was not without substance.
Counsel for the applicant, Ms Beneke,
proposed a draft order containing a myriad of prescriptive and
restrictive conditions pertaining
to
inter alia
, separate
accommodation for the respondent to allay all concerns regarding the
abuse as aforesaid.
[34] Mr Remy has however, made it
plain that he would not be willing to provide financial aid of any
kind to the respondent to facilitate
her return to England. More
importantly, he is not prepared to finance separate accommodation for
the respondent. He gave undertakings
only in respect of the
children’s return by aeroplane and their accommodation in
England. It was submitted by the applicant
that the obstacle
presented by Mr Remy’s uncooperative stance in this regard,
could be overcome by ordering him to provide
separate accommodation
for the respondent pending the outcome of this issue in the English
Courts.
[35] With regard to the shaping of
aforesaid type of order, the following passage in
Sonderup v
Tondelli
at paragraph 35, is instructive:
“
(T)he
court ordering the return of a child under the Convention would be
able to impose substantial conditions designed to mitigate
the
interim prejudice to such a child caused by a court ordered return.
The ameliorative effect of art 13, an appropriate application
of the
Convention by the court, and the ability to shape a protective order,
ensure a limitation that is narrowly tailored to achieve
the
important purposes of the Convention. It goes no further than is
necessary to achieve this objective, and the means employed
by the
Convention are proportional to the ends it seeks to attain. The
ability to shape a protective order, ensure a limitation
that is
narrowly tailored to achieve the important purposes of the
Convention. It goes no further than is necessary to achieve
this
objective, and the means employed by the Convention are proportional
to the ends it seeks to attain
”.
[36] Such an order, in whatever
shape, may not be effective if Mr Remy cannot afford two separate
households and has expressly refused
to do so. Since neither of the
parties have permanent residence permits in England, it is not a
certainty that the British authorities
will provide the respondent
with proper accommodation for the unspecified period being the
outcome of the matrimonial dispute.
The respondent might ultimately
have to fend for herself in England pending the divorce if Mr Remy is
financially unable to comply
with such an order. The respondent had
never been employed in England and is gainfully employed in South
Africa. Also, the children
will be in the effective care of Mr Remy’s
mother and sister during the day when he is at work, if the
respondent has to
remain behind in South Africa pending the divorce,
because she cannot afford to stay in England. I doubt whether this
type of hardship
can be in the interests of anyone in this matter,
let alone the children. For obvious reasons, an order that the
children return
without their mother is out of the question.
[37] G is too young to be returned
to England without her mother and J has expressed strong resistance
to return to England, with
or without his mother.
[38] The absence of proper
undertakings by Mr R renders this matter rather complex. The
respondent has indeed acted wrongfully within
the meaning of article
3(b) of the Convention and I am mindful not to treat this application
as a custody hearing. There are however,
several considerations which
indicate that a return order is not appropriate in this matter.
[39] Article 12 of the Hague
Convention provides that, where a child has been unlawfully removed
or retained in terms of article
3, and a period of less than a year
after the removal or retention has elapsed, the judicial or
administrative authorities of the
requested State (
in casu,
South Africa) is obliged to and ‘
shall order the return of
the child forthwith’
.
[40] This application was heard
twenty days short of a year having elapsed after the removal of the
children from England without
their father’s consent. When the
application was argued on 5 December 2012, Mr Remy’s statement
had not yet even been
attested to, although this was corrected a few
days after the matter was argued. It may have been mere technicality
or an unperfected
formality, but it nonetheless contributed to the
general absence of expediting matters in this application. In my
view, both parties
were to blame therefore, but the respondent more
so. I am not convinced that the respondent was of such poor health
that she could
not deal with this very important matter. The delay
had consequences in this matter, given the provisions of article 12
of the
Convention, which envisages that after a year has gone by
since the removal of a child, he or she may become sufficiently
settled,
and to a degree where a court is no longer as strictly bound
to order the return of the child in question.
[41] The children have undoubtedly
settled in well in South Africa after eleven months and ten days. A
return order will undoubtedly
have a disruptive and detrimental
effect on J’s educational progress and development, leaving his
personal fears aside for
the moment.
[42] A further important factor to
be considered is that Mr Remy, the respondent, and the children, even
though England was their
habitual place of residence, are still
immigrants in that country, albeit for six years. The children would
have a much weakened,
or no emotional support system in England
pending the outcome of the matrimonial dispute, as pointed out by Ms
Nunn. The fact that
Mr Remy’s mother and sister also relocated
to England, does not assist the applicant. They do not constitute a
significant
support system there, compared to what the children have
presently in the form of family and friends in South Africa.
[43] It was submitted by the
applicant that the abuse of the respondent was no justification for
removing the children without Mr
Remy’s consent, because it was
always open to her to seek protection from the British authorities
and welfare institutions.
I respectfully agree with that submission,
but for purposes of article 13(b), the same does not apply to J’s
objections.
Also, several practical obstacles (as illustrated above)
to granting the order sought are presented by the absence of proper
undertakings
by Mr Remy, who has expressed his uncooperative attitude
in clear terms. I doubt that a carefully shaped order with many
prescriptive
and protective provisions would remedy or ameliorate
these problems. The factors relied on by the respondent in this
matter, viewed
individually, may not justify a dismissal of the
application before me. However their cumulative effect constitutes an
intolerable
situation, for J in particular.
[44] I have given careful
consideration to the assumptions upon which the Convention proceeds
and found that even on the very strictest
interpretation of article
13(1)(b), circumstances were established in this matter, which rebut
the aforesaid assumptions sufficiently
to justify not ordering the
return of the children.
Costs
[45] Even though the respondent
successfully resisted an order for the relief sought by the
applicant, she is not entitled to a
costs order following the result
in this case, since she resorted to self-help and wrongfully removed
the children when she could
have persued lawful solutions to her
problems. In my view, she was less than truthful about her health
problems which she proffered
as an excuse for some of her actions.
Accordingly,
the application is dismissed.
_________________
E
REVELAS
Judge
of the High Court
Appearance
Adv Beneke for the Applicant,
instructed by the State Attorneys, Port Elizabeth, Mr Naidu for the
Respondent instructed by Legal
Aid Board, Port Elizabeth, Adv Dyer
for the minor children, instructed by O’Brien Incorporate, Port
Elizabeth.
Argument
: 5 December 2012
Order : 12 December 2012
Reasons : 15 February 2013