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[2017] ZAECPEHC 54
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J.L.V.R v C.A and Another (3446/2017) [2017] ZAECPEHC 54 (2 November 2017)
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IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, PORT ELIZABETH
CASE NO: 3446/2017
Date
heard: 31 October 2017
Date
delivered: 2 November 2017
In
the matter between
J.
L. V.
R.
Applicant
And
C.
A.
First Respondent
F.
S.
Second
Respondent
JUDGMENT
GOOSEN,
J.
[1]
On
11 October 2017 Beshe J issued a rule
nisi
in an
ex
parte
application relating to the welfare and care of a minor child.
Although the issued the rule makes provision for certain relief
to
operate as an interim interdict pending the return date, it is common
cause that no immediate relief was granted by Beshe, J.
[2]
The
issued order provides as follows:
1. That the Rule Nisi is
granted upon the First and Second Respondents to appear before this
Honourable Court on Tuesdays, 17 October
2017 at 09h30 or as soon as
practically possible thereafter as Counsel may be heard to show cause
why the following order should
not be made final:
1.1 That the minor child X. S.
(currently 8 months old) be removed from the care of his natural
mother and father, the above named
Respondents, as soon as
practically possible, but no later than close of business on Tuesday
17 October 2017, to be placed in the
care of the Applicant or such
other suitable person this Honourable Court deems appropriate,
pending the finalisation of this application;
1.2 The First and Second
Respondent make the detail of their current whereabouts, including
the whereabouts of the minor child available
to this Honourable
Court, as soon as practically possible, but no later than 12H00 on
Wednesday, 11 October 2017;
1.3 The Sheriff of this
Honourable Court with the assistance of the members of the SAPS as
well as a suitably qualified professional
with the appropriate
experience in Family Law related matters be directed to remove the
minor child from the First and Second Respondents
and place the minor
child in the care of the Applicant or such other suitable person this
Honourable Court deems appropriate.
1.4 The First and Second
Respondent be interdicted and restrained from removing the minor
child from the jurisdiction of this above
Honourable Court, pending
the finalisation of this application;
1.5 The minor child be declared
a child in need of care and protection in terms of section 150 of the
Children’s Act, Act
38 of 2005;
1.6 The Applicant or such other
suitable person this Honourable Court deems appropriate be granted an
Order in terms of section
32 of the Children’s Act, Act 38 of
2005 to be declared to be the person in who’s (sic) temporary
primary care the
minor child may reside pending the finalisation of
this application;
1.7 That, alternatively to
paragraph 1.6 above, that the minor child be placed in the temporary
safe care of the Applicant or such
other suitable person this
Honourable Court deems appropriate in terms of Section 151 of the
Children’s Act, Act 38 of 2005;
1.8 That the First and Second
Respondent shall exercise contact with the minor child as recommended
by the social worker appointed
pending the finalisation of this
application.
1.10 (sic) That directing
Jackie Griessel (a private social worker)to forthwith schedule an
enquiry and investigation into the removal
of the minor child terms
of Chapter 9 of the Children’s Act.
2. That paragraphs 1.1 –
1.7 above shall operate as an interim order and interdict with
immediate effect.
3. That an order directing that
the First and Second Respondents be served with this order by the
Sheriff of this Honourable Court
via email and personally.
4. That the remainder of the
relief as stipulated in paragraph 4 – 8 of the Notice of Motion
dated 9 October 2017, stand over
until Tuesday 17 October 2017.
[3]
Paragraph
2 of the above order does not reflect the order actually granted
since no interim orders were issued. It is fortunate
that the
applicant’s representatives were well aware of this since, at
face value, the order sanctioned the immediate removal
of the minor
child from the care of his biological parents. How it occurred that
the order was granted in this form is unknown.
It ought to serve as a
cautionary tale however so as to ensure that legal representatives
and court officials should be astute
to avoid such errors. Paragraph
1.10, so I was advised by applicant’s counsel, captures the
intention of the court, namely
that an investigation be conducted by
an independent private social worker prior to the granting of the
interim relief sought.
[4]
The
matter came before me on the scheduled return date. The first and
second respondents appeared in person. I was informed that
they, now
resident with the second respondent’s mother in Benoni, had
instructed an attorney who was preparing opposing papers.
I stood the
matter down to enable the attorney to properly come on record in the
matter so that the further proceedings could be
properly regulated.
[5]
For
reasons unknown this did not occur. I was nevertheless furnished with
certain statements/affidavits deposed to by the respondents,
a letter
addressed to the applicant’s attorneys by SJ Botha attorneys
and a further letter written by Dr Louis Smith, reflecting
the
results of an examination of the minor child.
[6]
After
hearing submissions by Mr
Dyke,
for the applicant, and the respondents I formed the view that an
independent medical examination of the child should be ordered
so
that the court could be placed in a position to determine the
veracity of a central claim made by the applicant, namely that
she
had observed evidence of a cigarette burn on the child’s back.
This claim served as foundation to the allegations of
neglect and
abuse which, according to the applicant, would warrant intervention
by the court to remove the child from the care
of the parents and
place him in the applicant’s care, pending the enquiries
envisaged in the court order.
[7]
The
parties entered into discussions regarding the appropriate person to
appoint and, on 18 October 2017, I accordingly issued the
following
order by agreement between the parties:
1. That Dr Christina Rollin be
and is hereby ordered and directed to conduct a full examination of
the minor child, X., and to pay
specific attention to the potential
cause of the lesion/mark on the minor child’s right back and
report your findings to
this Honourable Court on or before Monday,
14h00 on 30 October 2017.
2. That Ms Jackie
Griessel prepare a recommendation as to the removal of the minor
child, X. from the care of the Respondents
pending the resolution of
the further relief sought in this matter.
3. That Dr Heather Rauch
be and is hereby ordered and directed to conduct an enquiry into the
fitness of the applicant to
be granted temporary parental rights and
obligations in terms of the Children’s Act, alternatively
Applicant’s fitness
to be appointed as a place of safety
pending the outcome of the relief sought.
4. That paragraph 1.1 of the
Order of Beshe,J issued on 11 October 2017, is amended to read:
“
1.1
That the minor child, X. S. (currently 8 months old) be removed from
the care of his natural mother and father, the above named
Respondents, as soon as practically possible and be placed in the
care of the Applicant or such other suitable person this Honourable
Court deems appropriate, pending the finalisation of this
application;”
5. That paragraph 1.1, as
amended, and paragraphs 1.3 to 1.8, and paragraph 4 of the order of
Beshe, J. on 11 October 2017 stand
over to Tuesday 31 October 2017
for final determination.
[8]
In
accordance with paragraph 5 of the above order the final
determination of the issue set out in the order was postponed to 31
October 2017 before this court. I should state that by final
determination was meant only whether or not to render the relief set
out in paragraph 1.1 of the rule
nisi
operative with immediate effect.
[9]
A
report prepared by the Dr Christina Rollin, as envisaged in paragraph
1 of the order of 17 October 2017 has now been filed. So
too has a
report filed by Dr Heather Rauch. No further report by Ms Griessel
was filed. Her earlier report is however before the
court
[10]
The
respondents remained unrepresented in these proceedings. The
statements or affidavits previously submitted remain in the form
as
submitted. It appears that the respondents are unable to afford the
services of counsel. Their attorney has still not formally
come on
record. I am given to understand that this may be on account of the
fact that he has been removed from the roll of attorneys.
Whatever
the circumstances, I proceeded to deal with the matter albeit that
the respondents are unrepresented. For reasons which
will become
apparent hereunder no prejudice can flow from this since there will
be sufficient opportunity in the further proceedings
for the
respondents to secure legal representation before the final hearing
of the matter.
[11]
As
has been stated above, the application was launched on an urgent
ex
parte
basis. The order granted on that occasion made provision for service
to be affected by email, apparently because the whereabouts
of the
respondents and the minor child were unknown to the applicant. It is
now common cause that prior to the launch of these
proceedings the
respondents relocated from Port Elizabeth to Benoni in Gauteng where
they now reside with the second respondent’s
mother. This
raises the question of this court’s jurisdiction. On behalf of
the applicant it was submitted that this court
has jurisdiction since
the minor was, at the time of the launching of the application
ordinarily resident within the jurisdiction
of this court. In the
light of the statements made by the respondents, in submission from
the bar, that they have relocated permanently
to Gauteng to seek work
there, I am not certain that the position articulated by the
applicant is correct. However, given that
the matter concerns the
interests of a minor child I shall assume that at the time of
commencement of these proceedings this court
had jurisdiction and
that it retains such jurisdiction. I make no final pronouncement on
the issue since that matter is for the
court hearing the matter in
due course to determine.
[12]
The
applicant founds her interest in the matter upon the fact that she
has from time to time since the birth of the minor child,
acted as a
‘baby-sitter’, taking temporary care of the minor child.
The extent to which she has done this is a matter
in dispute as is
the precise circumstances in which this has occurred. According to
the applicant her observation of the conduct
of the respondents has
led her to conclude that the respondents are not interested in the
welfare of the child and are neglectful
of him. It is this, together
with specific allegations of alleged abuse that caused her to
initiate these proceedings.
[13]
The
applicant has no biological or legal relationship to the respondents
or the minor child concerned. It appears from the papers
that the
applicant’s mother is in a relationship with the second
respondent’s father. She has known the first respondent
since
2014. At that stage first respondent was married. According to the
applicant the first respondent was divorced in March 2016,
allegedly
because of the relationship between her and the second respondent.
[14]
The
first respondent has two children born of the erstwhile marriage. The
allegation made by the applicant is that the circumstances
in which
the first respondent found herself at the time of the divorce were
investigated by the Family Advocate’s office.
This
investigation established that the first respondent was in an abusive
relationship with the second respondent and that these
circumstances
would negatively affect the interests of her minor children.
Accordingly upon divorce the primary care of the children
born of her
marriage was awarded to the first respondent’s ex-husband and
the first respondent was only permitted to exercise
supervised access
to her minor children.
[15]
The
applicant states that the relationship between the first and second
respondent has been characterised by reckless behaviour,
which has
included alcohol and drug abuse. This occurred, so she alleges, even
when the first respondent was pregnant with the
minor child who is
the subject of the present application.
[16]
The
applicant states that since the birth of the minor child, who is now
8 months old, he has regularly been left in her care. This
is so
because the first respondent is allegedly not interested in looking
after the minor child and, apparently, because the first
and second
respondent regularly went out to drink.
[17]
The
allegations set out in the applicant’s founding affidavit paint
a troubling picture of alcohol abuse and an abusive and
often violent
relationship between the first and second respondent and alleged
neglect of the minor child. These allegations are
disputed by the
first and second respondent. They are also disputed by the second
respondent’s father who has deposed to
an affidavit.
Furthermore, the respondents allege that the applicant is herself a
troubled individual with a history of mental
illness who has become
obsessed with the minor child. According to the respondents the
applicant has repeatedly requested that
she be permitted to adopt the
minor child. Concern about the applicant’s alleged obsession
with the minor child caused the
second respondent’s father to
raise the matter with applicant’s other and, ultimately, to
arrange, in consultation
with the second respondent’s mother,
that they relocate to Gauteng.
[18]
I
do not consider it necessary to traverse all of these allegations and
counter allegations. The reason lies therein that I am presently
faced with having to determine only a very limited issue, namely
whether to grant an interim order removing the minor child from
the
care of the first and second respondents pending an investigation
into whether the child is a child in need of care as envisaged
in
terms of section 150 on the Children’s Act 38 of 2005 and the
relief consequent thereupon. It was in order to resolve
this limited
issue that the precaution was taken to issue the order directing
investigation of specific aspects of the matter as
is set out above.
[19]
The
central trigger to the present application is to be found in the fact
that the respondents together with the minor child relocated
to live
in Johannesburg where they are presently living with the second
respondent’s mother. The fact that they are residing
with the
second respondent’s mother was, it appears, unknown to the
applicant, and hence the concern about the respondents
caring for the
child on their own. The applicant alleges that the respondents left
Port Elizabeth “surreptitiously”,
although it is unclear
on what basis the applicant contends that they ought to account to
her for their movements.
[20]
Another
allegation central to the claim that the child should be removed from
the respondent’s care concerns an allegation
relating to
physical abuse and neglect. In this regard the applicant alleges that
she observed a cigarette burn on the child’s
back when the
child was in her care. It is appropriate to set out the allegation
fully as it appears in the founding affidavit.
47.7 On the
10
th
of September 2017 when the child was in the care of the First
Respondent I took his clothing to my house to wash and saw a burn
mark on his baby grow. I then investigated further and noticed that
there was more than one baby grow with these burn marks and
holes in
them;
47.8 When I
inspected the minor child’s body to determine whether or not he
had any burn marks on his body I discovered and
traced the burn mark
on his baby grow to the mark on his back, which reflected a red
blister which can only be from a cigarette
burn;
47.9 I
enclose herewith copies of the photos I have taken of the blister on
the minor child’s back as well as the hole in
his baby grow.
These photos were taken on the 10
th
and 19
th
of September 2017. Copies of the photos are annexed hereto marked
“VLR 5 to
2 VLR 11
”.
[21]
The
report filed by the social worker, Ms Griessel, prior to the previous
hearing indicates that the child was examined by her.
Griessel was
unable to determine whether the mark observed on the minor’s
back was indeed a cigarette burn mark.
[22]
The
investigation conducted by Dr Rollin however addresses this
allegation specifically. Dr Rollin is a forensic nurse employed
by
the Sexual Assault Clinic in Benoni. She has experience in conducting
forensic investigations into injuries for presentation
to court. She
investigated the concerns relating to the well-being of the child,
including possible physical neglect of the child
(as reflected in his
possible low weight percentile) and the lesion/mark on the child’s
back.
[23]
In
relation to the alleged physical neglect as indicated by the child’s
low weight percentile, the report indicates that upon
examination “I
observed a healthy, well-nourished and appropriately developed a
child”. Rollin states that while the
child is below average in
weight and stature for his age there is no indication that this is as
a result of malnourishment or neglect.
[24]
In
regard to the red mark or lesion on the child’s back, she
states that the lesion “appears to be a healing bruise”.
She notes that the “epidermis…does not appear to be
broken and therefore one can rule out a healed abrasion, burn
wound
or any injury causing injury to the epidermal layer of the skin”.
Dr Rollin’s conclusion is that the lesion is
likely one caused
by accidental means and that physical neglect and or physical abuse
was not the cause of the lesion.
[25]
This
finding, it should be stated, raises very serious questions about the
veracity of the specific allegation made by the applicant
that she
observed a blister on the child’s back and that this was the
consequence of a cigarette burn. In the light of the
independent
medical evidence this allegation appears, at minimum, to be highly
exaggerated.
[26]
As
already indicated, in addition to the report of Dr Rollin there is
the report of Dr Heather Rauch. Dr Rauch was appointed to
enquire
into the fitness of the applicant to be granted temporary parental
rights, alternatively to be appointed as a place of
safety pending
the outcome of the final relief. In this regard it should be
mentioned that the respondents had made allegations
regarding mental
illness on the part of the applicant as well as allegations relating
to alcohol and drug abuse. It is common cause
that the applicant is
presently under psychiatric treatment and has been booked off work. A
short report by Dr Crafford, the treating
psychiatrist, indicates
that the applicant has been treated by him for Bipolar Spectrum
Disorder, Adult Attention Deficit Hyperactivity
Disorder, Panic
Disorder and Obsessive Compulsive Disorder. She is presently on
medication to which she has responded well and
has been referred for
psychotherapy.
[27]
Dr
Rauch’s report does not address the mental state of the
applicant save to record that she is under the psychiatric treatment
because of a stress related disorder and that she is presently off
work for this reason. Dr Rauch reports that the applicant is
fit to
exercise temporary care of the minor child.
[28]
As
indicated the only question to be determined at this stage is whether
an order should issue removing the minor child from the
care of the
respondents and placing the child in the care of the applicant on an
interim basis. The fact that Dr Rauch concludes
that the applicant is
indeed fit to care for the child does not weigh the balance in favour
of granting the order. This much was
conceded by Mr
Dyke.
Whether
such order should be granted is to be determined on the basis of the
immediate short-term best interests of the minor child.
[29]
The
founding papers do not address the particular circumstances of the
child in the home of the paternal grandmother in Benoni.
Indeed the
case made out by the applicant is predicated upon neglect and abuse
of the minor child at the instance of the respondents.
It is upon
this basis coupled with the conduct of the respondents, namely the
abuse of alcohol and the instability of their circumstances
and the
nature of their relationship that the applicant seeks a determination
that the child is a child in need of care.
[30]
The
allegations of neglect and abuse of the minor child are denied by the
respondents. The independent medical assessment of the
child does not
support the allegations. There is accordingly, in my view, no
evidence to support a finding that the minor child
is presently under
immediate risk of harm and accordingly no basis to alter the
status
quo
on
that basis
.
[31]
To
order that the child should be removed from the care of the
respondents to be returned to Port Elizabeth to be cared for by the
applicant, pending the enquiry, would undoubtedly cause trauma to the
child and disruption of his life. Such an order may also
very well
significantly prejudice the parents in the exercise of their parental
rights and obligations. To grant such order this
court would need to
be satisfied that there is some immediate necessity to protect the
child from harm which may eventuate during
the course of the
investigation into the longer term best interests of the child.
[32]
The
allegations concerning the conduct of the respondents, in particular
those in relation to their relationship and the abuse of
alcohol are
also denied. They make the point that they now reside in the home of
second respondent’s mother where such abuses
are not tolerated.
[33]
The
applicant places heavy reliance upon the fact that the first
respondent is only permitted supervised access to her minor children
born of her erstwhile marriage. As I understood it, it is suggested
that this indicates that the first respondent is not fit to
exercise
full parental rights in respect of the child and for this reason the
child must be removed from her care.
[34]
The
reliance placed on the restricted access to first respondent’s
children, in my view, goes too far. The findings made by
the Family
Advocate when investigating a different circumstance may be relevant
to the final determination of the issues raised
in this matter but
they are not determinative of the issue presently to be decided.
First we have here to do with a different set
of circumstances and,
most importantly, the immediate best interest of a minor child. There
is nothing in the Family Advocate’s
report upon which the
applicant relies which points to any immediate risk of harm that the
minor child in this matter may face.
In any event the envisaged
interim order envisages that the child be removed also from the care
of the second respondent who is
the biological father and in respect
of whom the Family Advocate’s report makes no finding as to the
restriction of his parental
rights.
[35]
The
report by Ms Griessel, who conducted interviews with the respondents
and second respondent’s mother and visited the home
in Benoni
does not raise any specific concerns about the immediate welfare and
care of the minor child. She records that due to
the fact that she
has not investigated both the applicant and the respondents she is
unable to make a recommendation. She however
recommended that the
child be examined medically to determine the cause of the mar on the
child’s back.
[36]
The
best interests of the child are of paramount consideration. He is an
8 month old child in the very earliest stages of bonding
with his
parents. He is reported to be well-nourished and healthy and there
are no indications of physical abuse. In my view his
immediate best
interests favour him remaining in the care of his biological parents.
Whether his longer term interest coincide
is a matter which can only
be determined after full and proper consideration of all relevant
circumstances.
[37]
The
Children’s Act 38 of 2005 deals with the protection of children
in need of care. It provides for a comprehensive child
protection
system which relates to the designation of child protection services
and organisations. Section 110 contains a set of
provisions relating
to the reporting and investigation of abused or neglected children or
children in need of care. Provision is
also made in terms of section
151 for the removal of the child, pursuant to such investigations,
whether on a permanent or temporary
basis. It is these provisions
upon which the applicant seeks to rely in obtaining the relief set
out in the notice of motion.
[38]
In
C
v Department of Health and Social Development, Gauteng and Others
2012 (4) BCLR 329
(CC) the Constitutional Court was called upon to
consider this legislative framework. The Court found that sections
151 and 152
are unconstitutional inasmuch as they do not provide for
automatic judicial review of a decision to remove a child pursuant to
the sections. That aspect of the matter is not presently relevant.
What is of relevance however is the Court’s conclusions
in
regard to the process envisaged by sections 151 and 152 and how those
inform the approach to be adopted to the question of removal
of a
child. The Court (per Yacoob J) said the following (at para 65 and
67):
[65]
It will have been noted that children can only be removed if, amongst
other things, they
are found in need of care and protection. The act
defines that a child is deemed in need of care and protection if the
child:
“
(a)
has been abandoned or orphaned and is without any visible means of
support;
(b)
displays behaviour which cannot be controlled by the parent or
caregiver;
(c)
lives or works on the streets or begs for a living;
(d)
is addicted to a dependence-producing substance and is without any
support to obtain
treatment for such dependency;
(e)
has been exploited or lives in circumstances that expose the child to
exploitation;
(f)
lives in or is exposed to circumstances which may seriously harm that
child’s
physical, mental or social well-being;
(g)
may be at risk if returned to the custody of the parent, guardian or
care-giver of
the child as there is reason to believe that he or she
will live in or be exposed to circumstances which may seriously harm
the
physical, mental of social well-being of the child;
(h)
is in a state of physical or mental neglect; or
(i)
is being maltreated, abused, deliberately neglected or degraded by a
parent,
a care-giver, a person who has parental responsibilities and
rights or a family member of the child or by a person under whose
control the child is.”
[67]
In summary, it must be said that the conditions that must be
fulfilled before a child can
be removed are indeed stringent.
A
child can never be removed unless a court concludes or the designated
social worker or police official reasonably believes that
the child
is in need of care and protection. And that term is carefully
expanded in the Act. Once this requirement is established
the
Children’s Court may order removal of the child only if this is
necessary for the safety and well-being of the child.
A court cannot
do so if removal is merely desireable.
(Emphasis
added)
[39]
These
latter remarks are particularly apposite. As I have indicated the
facts before this court presently do not establish that
the safety
and well-being of the child require immediate removal. At best for
the applicant a case is made out that it may be desireable
to
intervene in the present care arrangements of the minor child. That,
however, is not sufficient to warrant immediate removal
of the child.
[40]
The
Children’s Act contemplates intervention to secure the safety
and well-being of children in need of care by designated
child
protection agencies. The protective measures include intervention by
a court to suspend or terminate or transfer of any or
all of the
parental responsibilities and rights. Such intervention, section 135
provides, may be initiated by the director general,
a provincial head
of social development or designated child protection organisations.
Whether such intervention ought to be a countenanced
outside of the
ambit of the provisions of the Act is a matter that the court in due
course will be called upon to determine when
the final relief is
decided. I shall assume for present purposes that there is no bar to
the applicant utilising the procedures
presently envisaged to obtain
relief in the form of a protection order as contemplated by the Act.
[41]
It
is with this in mind that I intend to make certain further orders I
consider necessary to regulate the further conduct of this
matter.
[42]
In
this regard I have in mind section 55 of the Act. That section
empowers a court, in appropriate circumstances, to refer the matter
to Legal Aid South Africa to facilitate appointment of a legal
representative to represent the interests of a minor child.
[43]
In
the present matter it is clear that the respondents are not vested
with any means to secure legal representation which they may
require
to represent their interests in the matter. Thus far they have relied
upon legal assistance informally given and have filed
affidavits
setting out, so far as they have been able to, their opposition to
the application. Their interests however, in a matter
such as this,
are not coterminous with the interests of the minor child. Nor can
the interests of the applicant, expressed as a
conduct taken in order
to protect the interests of the minor child, necessarily be
coterminous with the interests of the minor
child. I have already
indicated that the particular relief sought by the applicant is very
far reaching inasmuch as it contemplates
the permanent removal of the
minor child from the care of his parents and the child’s
relocation with obvious impact on the
rights and responsibilities of
the respondents as well the child’s rights. In these
circumstances I consider that it is appropriate
to direct, in terms
of section 55, that the matter be referred to Legal Aid South Africa
so that appropriate arrangements can be
made to appoint a legal
representative to the minor child who will be authorised to secure
the appointment of a
curator
ad litem
to represent the minor child in the further proceedings which will
follow.
[44]
In
order to facilitate the proper investigation of the matter I consider
that it is necessary to direct that independent experts
be appointed
to conduct appropriate investigations and evaluations of the
circumstances of the minor child as well as the respective
parties.
Although it was suggested that the Office of the Family Advocate be
appropriately directed I am not persuaded that section
4 of Act 24 of
1987 permits of an order in a case such as this. The power to make
certain specific orders relating to investigations
envisaged by
section 151 and 152 of the Children’s Act is conferred upon a
Children’s Court as is defined by section
42 of that Act. This
court’s powers derive from its inherent jurisdiction and as the
upper guardian of minor children at
common law. On this basis it is
appropriate to order that independent experts be appointed,
preferably by agreement between the
parties but where such agreement
cannot be reached upon direction of this court. The costs of such
experts would, given the nature
of these proceedings, need to be
borne by the party seeking relief until such time as the court making
a final determination decides
the issue of the costs attendant upon
the application.
[45]
I
have already indicated that I do not intend to issue an order which
alters the
status
quo
in relation to the care and welfare of the minor child. The question
that arises is what to do with the rule
nisi
as presently formulated. Paragraphs 1.2 and 1.4, 1.8 and 1.10 of the
order of 11 October 2017 are, given the course of the litigation,
no
longer relevant. In the absence of an order rendering paragraph 1.1
of the rule operative immediately no purpose is served by
paragraphs
1.3 and 1.7 of the order. Paragraphs 5 and 6 of the Notice of Motion
dated 9 October 2017 concern service of the papers
and the
supplementing of applicant’s papers at the stage of the interim
relief and no order need be made in that regard.
It is of course for
the applicant to effect appropriate amendments to the notice of
motion should she be so advised.
[46]
In
the light of the conclusions to which I have come all that is
presently required is that the rule
nisi
be extended to a date which takes account of the further orders I
intend to make. In extending the rule however it is necessary,
for
the reasons set out at the commencement of this judgment, to make an
order deleting paragraph 2 of the order of 11 October
2017.
[47]
In
regard to the costs of the application it is my view that no order
should presently be made.
[48]
I
therefore make the following order:
1.
The
rule
nisi
issued
on 11 October 2017, as amended by order of 18 October 2017, is hereby
extended to TUESDAY 12 DECEMBER 2017.
2.
Paragraph
2 of the Order of 11 October 2017 is hereby deleted.
3.
This
matter is referred to Legal Aid South Africa, Port Elizabeth Justice
Centre in terms of section 55 of the Children’s
Act, Act 38 of
2005 to facilitate the appointment of a legal representative to the
minor child and /or the appointment of a
curator
ad litem
.
4.
That
a duly qualified psychologist and social worker be appointed, by
agreement between the parties or upon direction of the Court
where
agreement cannot be reached, to conduct an investigation into the
care and welfare of the minor child and to report thereon
to the
Court on or before the extended return date or such later date as the
Court may direct;
5.
That
the costs occasioned by the appointment of the aforementioned experts
shall be costs borne by the applicant pending allocation
of such
costs upon determination of the cause.
6.
The
Registrar is directed to deliver a copy of this Order to the offices
of Legal Aid South Africa, Port Elizabeth Justice Centre.
__________________________
G.
G. GOOSEN
JUDGE
OF THE HIGH COURT
Appearances:
For the Applicant
Adv.
B. Dyke SC
Instructed
by Kaplan Blumberg Attorneys
The
Respondents in person