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[2019] ZAECPEHC 21
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Pringle v Fourie (748/2019) [2019] ZAECPEHC 21 (4 March 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH)
Case
No: 748/2019
In
the matter between:
NOT
REPORTABLE
Date
heard: 2 April 2019
Date
delivered: 4 April 2019
DANE
MALCOLM PRINGLE
Applicant
And
NATASHA
FOURIE
Respondent
JUDGMENT
Goosen
J:
[1]
This application concerns the immediate short term best interests of
a
minor child. The applicant, who is the child’s biological
father, seeks an interim order awarding him primary care of the
minor
pending an investigation by the Family Advocate and an application to
vary an existing court order in respect of residence
of the minor.
[2]
It is necessary to set out briefly the background to this
application.
The parties are both members of a close corporation,
Unick Fisheries CC and carry on business in partnership. They were
previously
involved in a romantic relationship and a son, now aged 8
years, was born of this relationship. The parties are no longer in a
relationship. In 2015, the applicant launched an urgent application
in which he sought,
inter alia
, primary care of the minor
child. The application was opposed. The application was ultimately
settled between the parties and an
order was made by this court on 1
March 2016. That order provides for shared residency of the minor
child. For reasons which I
will elaborate upon hereunder the order
makes provision for periodic requested urine tests of the respondent
to determine that
she is not or has not used narcotic substances.
[3]
It is common cause that both parties partook in the recreational use
of
cocaine prior to the birth of the minor child. It is also common
cause that during her pregnancy the respondent refrained from the
use
of cocaine. It appears that this persisted for a period after the
birth of the minor. However, it is common cause that the
respondent
again started using cocaine in October 2014. As a result of this, the
respondent was admitted to the Riverview Rehabilitation
Centre for a
period of 25 days. Unfortunately, the rehabilitation was unsuccessful
and in June 2015 the respondent suffered a further
relapse. Her use
of narcotics resulted in an admitted addiction to the use of crack
cocaine.
[4]
It was this state of affairs that gave rise to the initial urgent
application
referred to above. In that matter, the best interests of
the minor was investigated,
inter alia
, by the office of the
Family Advocate. It was then determined that a shared residency
arrangement was in the interests of the child
since the respondent
had remained drug-free for a lengthy period of time.
[5]
The shared residency arrangement has continued since then, although
it
has been informally amended to allow that the minor spend
alternating weeks with the parties. The business partnership has also
continued, with the respondent maintaining an active role in the
business. In the present application, the applicant seeks interim
relief pending the variation of the order of 1 March 2016 by
providing that the primary care of the minor be awarded to him. The
interim relief, sought urgently, is premised upon the allegations
that the respondent has again relapsed in respect of her drug
use and
is conducting herself in a manner that exposes the minor to risk of
harm. What the applicant accordingly seeks is that
the minor be
placed in his primary care and that the respondent exercise
supervised contact with the minor pending an investigation
and final
determination of the matter. The supervision is to be exercised by
the au pair on specified days of the week.
[6]
The paramount consideration in a matter such as this is the best
interests
of the minor child. This is to be determined having regard
to the current circumstances of the child, taking into account
measures
that can reasonably be taken to protect the best interests
of the child pending final determination of the matter.
[7]
I have already pointed to some common cause facts which preceded the
granting
of the order on 1 March 2016. In respect of what has
occurred thereafter there is also much that is common cause or at
least not
disputed. The applicant alleges that towards the end of
2017 he noted that the respondent’s behaviour was erratic, in
particular,
that she was absent from work for several days at a time.
He suspected then that the respondent was abusing drugs and alcohol.
[8]
On 2 January 2018, the applicant and respondent’s mother went
to
the respondent’s home. They found her in an unresponsive
state. They also found crack cocaine and a crack cocaine pipe. As
a
result, the applicant arranged for the respondent to be admitted to
the Riverview Rehabilitation Centre. The respondent admits
that a
crack cocaine pipe was found and that she was admitted to the
rehabilitation centre. She admits an exchange of WhatsApp
messages
between her and the applicant wherein she admits to the need to
resolve a drug-related problem.
[9]
It is common cause that the respondent spent some weeks at the
rehabilitation
centre whereafter she returned home. It appears that
the respondent maintained her sobriety for a period of time
thereafter. The
papers are silent as to the care arrangement in
respect of the minor child. It is to be presumed that the arrangement
continued
as per the shared residency agreement.
[10]
The applicant alleges that in or about November 2018 he was informed
by the respondent’s
sister that the respondent had admitted to
her to having again relapsed. This, together with similar concerns
expressed by the
respondent’s uncle caused the applicant to
confront the respondent regarding her alcohol and drug abuse. He
states that she
admitted having relapsed but refused to again enter
rehabilitation. The respondent denies this. She, however, admits that
in December
2018 she did relapse and commenced using drugs. She
states that this period is always difficult for her because it is the
anniversary
of her brother’s death.
[11]
According to the applicant the respondent was involved in the
business of a game farm in
2018. This involvement was allegedly
terminated in January because of the respondent’s relapse. In
January 2019 the respondent
travelled to Coffee Bay in the Transkei.
She travelled with her sister, Hayley, and Ms
Chilwan
, an
employee of Unick Fisheries.
[12]
The applicant was informed by the respondent’s sister, as is
confirmed by her, that
the respondent was ‘high’ and that
she was again abusing alcohol and drugs. The respondent planned to
travel to the
Transkei in order to engage in a cleansing ceremony.
Over this period the minor child was in the applicant’s care.
On 22
January 2019 the respondent sent the following message to the
applicant:
“
Hey, so I know you
worried and have all the right to be but I want you to know that I’m
on the right path and that I’ve
worked through a lot in the
Transkei. I’m ready to come home and get back on track and get
my life back in full swing like
it was last year. I know you may not
believe me or have heard this before but I finally feel at peace in
my heart and believe I
can do this and beat my addiction once and for
all. Just have a little bit more faith in me. Love you and thank you
for always
being there for me. Xxx.”
[13]
In the period that the respondent was in the Transkei, the applicant
was in communication
with the respondent’s sister, Hayley.
These messages, the content of which is confirmed, indicate that the
respondent was
using alcohol and/or drugs. The messages also reflect
a concern about the respondent’s behaviour. The respondent’s
conduct in regard to taking drugs whilst in the Transkei is confirmed
by
Chilwan
.
[14]
The applicant states that the respondent has been absent from work
for most of 2019. This
is confirmed by the respondent albeit that she
alleges that she has been assisting her father who recently underwent
surgery.
[15]
On 12 March 2019, the applicant and respondent had a business meeting
with a third party
businessman. The applicant noted that the
respondent was behaving erratically, that she was twitching and
appeared to be paranoid.
After the meeting he and the respondent had
a heated exchange. He told her that she needed to undergo drug
testing. According to
the applicant the respondent stormed off. A
week earlier a similar meeting had been convened but the respondent
did not arrive.
[16]
Also on 12 March 2019, the parties’ au pair informed the
applicant that the minor
child had walked into the bathroom that
afternoon and found the respondent and a man, naked, in the bathroom.
[17]
When confronted with this in a WhatsApp exchange the following day,
the respondent admitted
the presence of the man. She also explained
that her behaviour at the meeting was caused by the fact that she had
taken pain medication
(Oxynorm) prescribed by her plastic surgeon who
was treating her. She also stated that she had taken diet pills. She
had apparently
taken 2 of the Oxynorm pain tablets whereas only one
was prescribed. She denied that she was taking drugs and said that
she would
undergo a drug test.
[18]
It is the events of 12 March which resulted in the applicant seeking
legal assistance resulting
in the present application. It is common
cause that on 14 March the applicant met with the respondent’s
attorneys. He requested
them to persuade the respondent to again
check into a rehabilitation centre. On 18 March he consulted his
attorney. A letter was
sent to the respondent’s attorneys
setting out proposals to avoid litigation. This involved a request
that the respondent
commits to a rehabilitation programme and
satisfies the applicant that she is drug-free. It was proposed that
the minor child remain
in the care of the applicant and that the
respondent would have supervised access. It was further proposed that
a mediation process,
as envisaged in the court order of 1 March 2016,
be conducted.
[19]
Although a mediator was to deal with the matter on 20 March 2019, the
process was cancelled
by agreement between the parties. On 20 March
2019, the parties’ legal representatives met. Respondent’s
attorneys
indicated that the respondent would consult a psychologist,
Dr
van Staden
. The applicant’s attorneys was informed
that a urine test was conducted on 18 March 2019. A copy of the
result was not furnished.
I shall return to the test result
hereunder.
[20]
In an
affidavit
[1]
deposed to by
Chilwan on 20 March 2019, shortly before the commencement of this
application, she states that the respondent had
“frantically”
asked her a few days earlier to give her a sample of urine. This
allegation is admitted by the respondent.
She did so, she says
because she had taken prescription medication and that she had been
advised by Dr
Hagen
that she would, therefore, fail a drug test.
[21]
The respondent’s opposition to the interim relief sought is
premised upon a denial
that she is presently using crack cocaine or
similar narcotics. She ascribes her conduct to the effects of the
prescription medication
(Oxynorm) coupled with diet medication. This
latter medication the respondent obtained from a personal trainer at
the gym she attends.
[22]
The respondent annexed to her answering affidavit a urine test result
which indicates a
negative result for cocaine. It was argued that the
negative urine test for use of cocaine and the affidavit of Dr
Hagen
,
a general practitioner, supports her denial of drug use. Dr
Hagen
stated that the taking of 2 Oxynorm tablets may explain the
respondent’s erratic behaviour. The opinion expressed by
him is of little value. It is not based on any conduct observed by
him or any pharmacological or other evidence. Nothing is known
about
the diet medication. There is also no explanation as to why a double
dose of Oxynorm was taken. It is striking that the respondent’s
plastic surgeon declined to express any opinion regarding the effects
of such dosage.
[23]
The report of Dr
Van Staden
, the psychologist consulted by the
respondent also does not assist. In it, he states that the respondent
is not clinically dependent
on substances. It is unclear what this
means. It is not explained, more particularly in the light of the
admission by the respondent
that she is addicted to substances and
has, on several occasions, relapsed i.e. again started using
dependent producing narcotics.
[24]
In dealing with the negative urine test result, the applicant annexes
to his replying affidavit
a brochure by Ampath Pathologists, the
pathology laboratory that conducted the test. It suggests that the
detection period for
cocaine in urine is 2-4 days. The brochure is of
no evidential value in determining the issue. The negative result
must be weighed
against the other evidence presented. The applicant
has tendered a substantial body of evidence. A letter from the
respondent’s
mother, affidavits of the respondent’s
sister,
Hayley
, and
Chilwan
, which all point to ongoing
drug use over a period.
Chilwan
reports that the respondent
admitted to drug use at an office party in February. The respondent
herself admits to drug use in December
2018 and January 2019. There
is also the admission by the respondent that she asked
Chilwan
for a urine sample in order “to beat” the test. The
reason given is not supported by
Hagen
who allegedly
previously gave her the advice she relied upon. In my view, the
evidence points tragically , on the probabilities,
to a further
relapse in the respondent’s use of narcotics notwithstanding
the negative urine test result on 18 March. There
can, in my view, be
no doubt that the several persons who report her use of drugs,
including the respondent’s mother and
sister, are deeply
concerned not only about the interests of the minor child but also
about the welfare of the respondent. It is
this which must guide the
court in its assessment of the best interests of the child.
[25]
It was argued that there is nothing on the papers to suggest that the
minor child’s
welfare is at risk or that there is a threat of
harm. I disagree. If indeed, as the weight of the evidence suggests,
the respondent
has relapsed in her use of crack cocaine or similar
narcotics or even in the abuse of prescription medication, the risk
to the
welfare of the minor when he is in her care is self-evident. I
am conscious of the fact that an interim change to the primary
residence
of the minor will, no doubt, cause some disruption in the
minor’s life. On balance, however, I am satisfied that it will
bring about some stability while the longer-term interests of the
minor are considered
[26]
I am satisfied that it will be in the immediate short term interests
of the minor child
if he primarily resides with the applicant. It is,
in my view, necessary to order that the Family Advocate investigate
and report
upon the care and welfare arrangements of the minor.
Having regard to all of the circumstances it will be appropriate to
order
that contact with the minor child be conducted under
supervision as proposed.
[27]
In the result, I make the following order:
1. That
the Family Advocate is directed to, on an urgent basis, investigate
and report on the care and contact
arrangements relating to the
parties’ minor child
Seth Kyle Pringle
(“the
minor”).
2.
That, pending the finalization of the investigation and receipt of
the report by the Family Advocate:
2.1
the applicant is awarded primary care of the minor and
that the minor
shall primarily reside with the applicant;
2.2
the respondent will have contact with the minor as follows:
2.2.1
supervised contact in the presence of the parties’ au pair,
Kelly Ross
, on Monday, Wednesday and
Thursday afternoon, with Ms
Ross
collecting the minor
from school and with Ms
Ross
returning him to the
applicant’s
residence at 18:00 the
same evening;
2.2.2
supervised contact in the presence of Ms Ross or another party
mutually agreed upon by the parties’ every
alternate Saturday
and Sunday, with the person who supervises the contact collecting the
minor from the applicant’s residence
at 08:00 and with that
person returning the minor to the applicant’s residence 18:00
the same evening; and
2.2.3
reasonable telephonic contact with the minor at all reasonable times.
3.
That the relief sought under Part B of this application be and is
hereby postponed
sine die
.
4.
That the applicant be and is hereby granted leave to supplement his
application
papers upon receipt of the Family Advocate’s
report.
5.
That the costs of the interim application are reserved.
______________________
G.G.
GOOSEN
JUDGE
OF THE HIGH COURT
Obo
the Applicant: Adv
Gagiano
Instructed
by Anthony-Gooden
Incorporated, 9 Bird Street, Central, Port Elizabeth
Ref:
Jag/MZ
Obo
the Respondent:
Adv D.A Smith
Instructed
by D.
Gouws Attorneys, 136 Cape Road, Mill Park, Port Elizabeth
Ref: Jeanne Scheffer
[1]
The applicant alleged in his papers that the respondent made certain
threatening remarks, in front of Unick employees, about
getting her
friends, a certain Justin and Armand, to “sort out” the
applicant. It is these threats that resulted
in statements being
made to the South African Police Services by Chilwan and Possett
(another employee). The respondent admits
making the remarks but
denies that she was threatening.