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[2023] ZAECQBHC 52
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L.V v L.V (2501/2022) [2023] ZAECQBHC 52 (15 September 2023)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, GQEBERHA
CASE
NO.: 2501/2022
In
the matter between:
L[…]1
V[…]
Applicant
and
L[…]2
V[…]
Respondent
JUDGMENT
NONCEMBU
J
[1]
This is an application for a referral of the matter to oral evidence
in terms of rule 6 (5) (g)
of the Uniform Rules of Court. The
application is brought by Mr V[…] who is the respondent in the
main application.
For the sake of convenience, I shall refer to
the parties as they are referred to in the main application.
[2]
The notice of motion in the matter, having been issued on 22 August
2023, was served on the applicant’s
attorneys and the Family
Advocate’s office on 24 August 2023. Due to the short
timeframe within which the application
was served. Counsel for
the applicant submitted that they had insufficient time in which to
file their answering affidavit
and heads of argument. They therefore
elected to only argue the matter in court after filing their notice
of opposition.
[3]
The office of the Family Advocate submitted that they would abide by
the decision of the court.
[4]
The main application from which this application emanates concerns
the relocation of the applicant
together with SV, a 4-year-old child
born of the now dissolved union between the applicant and the
respondent. The parties
were granted a decree of divorce
incorporating a deed of settlement by this Division sitting at
Gqeberha under Case No. 1586/2021
on 14 April 2021.
[5]
In the main application the applicant seeks, in variation of the deed
of settlement, a relocation
with SV from Kirkwood where the parties
currently reside, to Hopetown in the Northern Cape, said to be more
than 600km away from
Kirkwood. The main application is opposed
by the respondent who also filed a counter-application seeking
inter
alia
, that he be granted primary care (residence) of SV in the
event that the applicant should relocate to Hopetown.
[6]
Both parties have full parental responsibilities and rights in
respect of SV, and residence and
primary care of SV is shared between
them in terms of the divorce settlement
[1]
.
Before the main application was issued the parties had attempted
mediation which, unfortunately, did not succeed.
[7]
As part of the terms of the deed of settlement, it was agreed between
the parties that in the
event that one of the parties should relocate
form the Kirkwood municipal area before 2026, SV would reside with
the party remaining
behind (in Kirkwood).
[2]
[8]
In the course of the main application the office of the Family
Advocate was appointed by agreement
between the parties to conduct an
investigation into the care and contact of SV and to make a
recommendation to Court in this regard.
[9]
The Family Advocate’s report which was primarily based on an
investigation and a report
compiled by one Mrs Van Vuuren, a Family
Counsellor within the office of the Family Advocate recommended,
inter alia,
that the applicant be permitted to relocate to
Hopetown with SV and that SV primarily resides with the applicant in
Hopetown subject
to the respondent’s right of reasonable
contact. The report further recommended specific contact
arrangements for the
respondent until SV reached 5 years, as well as
from the age of 6 years.
[10]
The respondent recorded his rejection of the said report and its
recommendations and consequent thereupon,
launched the current
application. As a basis for rejecting the report, he contends that
the report is wholly superficial and gave
very little consideration
to the best interest standard as contemplated in section 7 of the
Children’s Act.
[3]
[11]
To that end, the respondent appointed Mr Mark Eaton, a clinical
psychologist to do an evaluative investigation
of the Family
Advocate’s report and to prepare a report thereon for the
Court.
[12]
In his report, Mr Eaton made numerous observations pertaining to
short comings in the Family Advocate’s
report. These
include the fact that the report makes no recommendations for contact
when the child is between the ages of
5 years and 1 day short of 6
years of age (a whole year); as well as the fact that Mr Smit, with
whom the child would be staying
if relocation is granted, was not met
and evaluated, nor was his background investigated. His
relationship with SV was not
observed, and the report (in relation to
him) was based solely on descriptions from the applicant.
[13]
In conclusion to his investigations, Mr Eaton reported that:
13.1 The Family
Counsellor had not fully investigated some of the relevant facts and
factors required in such an application; facts
and factors that would
necessarily have significant impact on the best interests of a young
4-year-old minor child.
2.2
The assumption upon which the Family Counsellor’s opinion about
the relocation and primary residence
was based appeared to be founded
on illogical or unsupported reasoning as described in the body of his
report.
2.3
As the Family Advocate’s report had relied heavily on the
Family Counsellor’s investigation,
findings, expert opinion and
recommendations; the apparent methodological omission and errors of
logic extend to the Family Advocate’s
report of 18 May 2023.”
[14]
Having considered the report by Mr Eaton as well as his accompanying
affidavit, counsel for the applicant
submitted that in light thereof,
they are not persisting with the order per recommendation of the
Family Advocate. They however,
are of the view that oral
evidence is not the proper manner of dealing with the issues raised,
and suggested a workable solution
in the form of the appointment of a
joint independent expert to further investigate the matter and report
to court.
[15]
The respondent takes issue with the manner in which the said
proposition was brought forth; first on the
basis that no affidavit
was filed to court pertaining to same, nor was there any application
brought for a consideration of the
proposal which was couched in the
form of a draft court order. The respondent contends that no
such procedure is provided
for in the rules nor on any available
legal authorities.
[16]
It is noted that the issue of a referral to oral evidence was first
intimated to the applicant in a letter
dated 9 June 2023 by the
respondent. In the said letter the respondent indicated that
they do not accept the recommendation
of the Family Advocate, and
that they intend obtaining a report from an independent clinical
psychologist. It is upon that
basis that Mr Eaton was the
appointed and the report he prepared formed the basis upon which the
application for referral to oral
evidence was premised.
[17]
In addition to the aforementioned report, the respondent also
referred to a factual dispute pertaining to
the motive and
implication of clause 3.1.14 of the deed of settlement.
[4]
[18]
In my view, the latter does not raise an issue warranting a referral
to oral evidence as it is an issue that
can easily be dealt with by
Court applying the Plascon-Evans principle.
[5]
[19]
With regards to Mr Eaton’s report, the report itself states
that it is premised on an evaluative exercise,
to assist legal
parties and counsel to make informed decisions regarding the
recommendations made by the Family Advocate in the
matter.
[20]
True to its purpose, what the report does is point out shortcomings
in the report of the Family Advocate
and sets out pertinent aspects
which ought to have been investigated by the Family Counsellor, but
were not so investigated. Mr
Eaton did not go further and investigate
the outstanding aspects nor any of the circumstances of the parties
and relevant persons.
As such he made no recommendations with
regards to what is in the best interests of SV.
[21]
As such, the applicant took no issue with his report. To draw a
conclusion therefore, that Mr Eaton’s
report raises factual
disputes is ill- advised and quite fallacious. In the absence of any
factual disputes therefore, there is
no basis for a referral of the
matter to oral evidence. All that the report does is point out
shortcomings and omissions in the
Family Advocate’s report.
These can only be remedied by supplementing the Family Advocate’s
report as it would be difficult
for a Court to make a determination
on the best interests of SV based solely on that report as it stands.
[22]
Rule 6 (5) (g) provides:
“
When an
application cannot properly be decided on affidavit the court may
dismiss the application or make such order as it deems
fit with a
view to ensuring a just and expeditious decision. In
particularly but without affecting the generally of the aforegoing,
it may direct that oral evidence be heard on specific issues with
a view to resolving any dispute of fact and to that end may order
any
deponent to appear personally or grant leave for such deponent or any
other person to be subpoenaed to appear and be examined
and
cross-examined as a witness or it may-refer the matter to trial with
appropriate directions as to pleadings or definitions
of issues, or
otherwise.” (
Emphasis intended).
[23]
The import of rule 6 (5) (g) is that where there is a material and
bona fide dispute of fact that cannot
be decided on the papers, a
court is faced with three alternatives: it may dismiss the
application, or direct that oral evidence
be heard on specified
issues, or refer the matter to trial. A court is not restricted to
the listed remedies and may make any order
it deems fit and which is
directed at ensuring a just and expeditious decision.
[6]
Stemming
from the above, it is crystal clear that the purpose of a referral to
oral evidence is to resolve material disputes of
facts. As indicated
earlier in this judgment, no issue has been taken with Mr Eaton’s
report by the applicant and the report
itself raises no disputes of
fact but shortcomings in the Family Advocate’s report.
[24]
Quite tellingly, even the notice of motion in the application for a
referral to oral evidence makes no mention
of disputes of fact that
required a resolution. A closer perusal of the notice of motion
reveals that what is being sought
in the oral evidence from the
Family Counsellor is to elicit that which is not apparent from her
report, ie. the basis for her
findings
[7]
; the gap in the report pertaining to contact arrangement for a
period of 1 year (between 5 and 6 years old)
[8]
; the role in which the loss of a mother was employed in
the evaluative exercise
[9]
; how
SV’s voice was solicited in order to obtain her
views
[10]
; and factors/
considerations employed in the weighing up process envisaged in
section 7 of the Children’s Act
[11]
.
[25]
All these are the aspects which Mr Eaton notes as having not been
taken into account/ consideration, or at
the very least, such
consideration is not apparent in the report- hence the report is said
to have short-comings.
[26]
It is also on this basis that the applicant suggests that at the very
least, it appears from Mr Eaton’s
report that the Family
Advocate’s report needs to be supplemented. It is also on
the same basis that they suggest that
a joint independent expert be
appointed to investigate the outstanding aspects in the
afore-mentioned report and report back to
court.
[27]
The purpose of the Family Advocate’s report is not so much to
please the parties as it is to place
information before the court in
order to guide it to make a finding on the best interests of the
minor child involved. If
the court is not satisfied with the
content of the Family Advocate’s report an alternative method
to obtain further information
is necessary.
[12]
[28]
The Family Advocate should make a balanced recommendation subsequent
to an investigation regarding the best
interests of the minor child
with specific reference to her primary residence, care, and
contact.
[13]
It has been
affirmed in several court decisions that a mother’s role as
primary caregiver has diminished and the relevant
facts, opinions and
circumstances regarding the care of the minor child and the child’s
parents must be assessed in a balanced
fashion. The standard is
to be applied in a flexible manner.
[14]
[29]
As appears from Mr Eaton’s report, this was not done in the
present matter and the report points to
material shortcomings in the
Family Counsellor’s report. One therefore can readily
conclude that the report by the
Family Counsellor, and by extension
that of the Family Advocate, does not place sufficient information
before court to assist it
in making a determination with regards to
what is in the best interests of SV pertaining to her residence, care
and contact.
[30]
Section 7 of the Children’s Act provides as follows:
“
(1)
Whenever a provision of this Act requires the best interests of the
child standard to be applied, the
following factors must be taken
into consideration where relevant, namely:
(a)
The nature of the personal relationship between-
(i)
The child and the parents; and
(ii)
The child and any other caregiver or person relevant
in those
circumstances.
…”
[31]
It is not in dispute that the nature of the personal relationship
between SV and Mr Smit, the applicant’s
fiancée and the
person with whom SV is contemplated to stay with in the event that
the relocation application is granted,
was not investigated and thus
taken into consideration in the Family Advocate’s report. He is
without a doubt a very relevant
person in the relocation application,
as such a failure to consider his circumstances is a serious omission
in the Family Advocate’s
report.
[32]
This is but one material aspect without which the court cannot be in
a position to make a determination with
regards to what is in the
best interests of SV. A referral to oral evidence will not cure
the said omission. It therefore
follows that the only equitable
remedy on the circumstances of the present matter is to have the
report of the Family Advocate
supplemented.
[33]
Section 9 of the Children’s Act provides that in all matters
concerning the care, protection and well-being
of a child the
standard that the child’s best interest is of paramount
importance, must be applied.
[34]
Both the main application and the counter- application have the
effect of circumscribing the parental responsibilities
and rights of
each of the parties in respect of SV (as contemplated in section 28
(1) (b) of the Children’s Court). In terms
of section 29 (1),
such an order can only be granted if it is in the best interests of
the child.
[35]
Section 29 (5) provides that the court may for purposes of the
hearing order that-
“
(a)
report and recommendations by a Family Advocate, social worker or
other suitably qualified person must
be submitted to the court.
(b)
A matter specified by the court must be investigated
by a
person designed by the court;
(c)
A person specified by court must appear before it to
give or produce
evidence; or
(d)
…”
[36]
In
cas
u the information contained in the report culminating in
the recommendation by the Family Advocate is clearly insufficient for
the
court to determine whether or not the recommendation is in the
best interests SV.
[37]
In the circumstances therefore nothing precludes this court from
directing that a further expert report to supplement that
of the
Family Advocate as contemplated in Section 29 (5) (a) and (b) be
obtained.
[38]
In the circumstances, a referral of the matter to oral evidence is
untenable and cannot be sustained.
[39]
Consequently, I make the following orders:
(a) The application for a
referral to oral evidence in terms of rule 6(5) (g) is dismissed with
costs.
(b) Mr Wesley Kew, a
registered clinical psychologist is appointed and authorised to carry
out an investigation/evaluation forthwith
regarding the following
aspects:
(i)
Whether it will serve in SV’s best interests as recommended by
the Family Advocate in their
report dated May 2023 to be permitted to
relocate with the applicant to Hopetown and if so, what care, contact
and primary residence
arrangements are in the best interests of the
parties’ minor child (SV).
(ii)
In the event that SV’s relocation to Hopetown as recommended by
the office of the Family
Advocate in their report dated May 2023 is
not supported by Mr Kew, then and in that event, what care, contact
and primary residence
arrangements are in the best interests of the
parties’ minor child.
(iii) The minor child’s
current psychological functioning and general welfare and her
psychological functioning and welfare
if she is to relocate with the
applicant to Hopetown.
(c)
Mr Kew is to compile a report setting out his findings and
recommendations regarding the aspects
listed in paragraph (b)
supra
and he is to make such report available to the parties’ legal
representatives.
(d)
Mr Kew is authorised to take the following steps to carry out
the
investigations/evaluations and to compile a report, namely:
(i)
To guide him in his investigation and recommendation
by considering
and applying the provisions of section 7(1); 10 and 33 of the
Children’s Act, 38 of 2005.
(ii)
To conduct an interview and make clinical observations
of the minor
child in an age appropriate manner on reasonable notice to the
applicant and respondent, whilst the child is in the
applicant’s
care and whilst the child is in the respondent’s care.
(iii)
To conduct interviews with the applicant and respondent on reasonable
notice.
(iv)
To conduct interviews with family members of the applicant and the
respondent, including but not limited to Mr Smit, on reasonable
notice.
(v)
To conduct interviews with persons identified in the
reports of the
Family Advocate and the Family Counsellor on reasonable notice.
(vi)
To conduct interviews with the minor child’s teachers in
Kirkwood on reasonable notice.
(vii)
To investigate the school the applicant intends to enrol the minor
child
in, if she is permitted to relocate with the applicant to
Hopetown and to interview the teacher(s) at the school, on reasonable
notice.
(viii)
To conduct interviews with relevant collateral sources on reasonable
notice.
(ix)
To appoint a social worker to investigate and report on Mr Smit’s
home environment and social environment in Hopetown, on the terms as
requested by Mr Kew.
(x)
To observe the minor child interacting in the home environment
of
both the applicant and the respondent.
(xi)
To observe the minor child interacting with Mr Smit in the
applicant’s
home environment at Kirkwood.
(xii)
Pending the outcome of his report and recommendation, to request the
applicant and the respondent to approach a judge in chambers to
extend his powers or duties in order to fulfil his mandate.
(xiii)
To prepare a final report and make a recommendation in respect of any
issue concerning
the welfare and/ or affecting the best interests of
the minor child.
(e)
Advocate Rawjee or Attorney Judy Theron is hereby appointed
and
authorised to conduct a mediation and/or conflict resolution process
as contemplated in rule 41A of the High Court Rules, between
the
applicant and the respondent in respect of issues concerning the
welfare of, and/or affecting the best interests of the minor
child,
in the event that a dispute arises pending the investigation of Mr
Kew and also upon finalisation of Mr Kew’s report
and
recommendation and each party is to be liable to pay 50% of the
mediation costs and the mediator’s fees.
(f)
In amplification of the provisions of rule 41A,
Advocate Rawjee or
Attorney Judy Theron is authorised to take the following steps to
carry out the mediation and/ or conflict resolution
process as
contemplated in paragraph (e)
supra
:
(i)
To conduct interviews with the applicant and respondent
on reasonable
notice and for reasonable periods.
(ii)
To have insight into any report(s) prepared by Mr Kew
in terms of
this order and to conduct interviews with him regarding the aspects
mentioned in his report and any recommendation
made by him.
(iii)
To assist the applicant and the respondent in reaching agreements
relating to the care and contact of the minor child upon
recommendation of Mr Kew.
(iv)
To assist the applicant and respondent in preparing a parenting
plan
regarding the care, contact and primary residence of the minor child,
should such a plan be deemed appropriate and/ or necessary,
upon
recommendation of Mr Kew.
(g)
The applicant and respondent shall participate in and facilitate
the
evaluation/investigations of Mr Kew and the rule 41A mediation of
Advocate Rawjee or Attorney Judy Theron on reasonable notice.
(h)
The applicant and the respondent are each to be liable to pay
50% of
the fees and expenses of Mr Wesley Kew and the social worker to be
appointed by Mr Kew in terms of this order.
(i)
Mr Kew’s report and recommendation and any
parenting plan
agreed upon by the parties are to be served upon the office of the
Family Advocate, Gqeberha for comment or if necessary,
a
supplementary report.
(j)
Pending the finalisation of Mr Kew’s report
and recommendation
and adjudication thereof, the parental responsibilities and rights,
care and contact and residence of the minor
child will be shared
between the parties as per the deed of settlement dated 16 July 2021,
under case number 1586/2021 (excluding
the mediation of SV’s
care and contact specifically addressed in this order).
(k)
The applicant’s application and the respondent’s
counter-application are postponed sine die pending the outcome and
finalisation of Mr Kew’s report and recommendation.
(l)
The costs of the applicant’s application
and the respondent’s
counter-application are reserved.
(m)
The applicant or the respondent is permitted to enrol the applicant’s
application and the respondent’s counter-application according
to the practice directives of the Eastern Cape High Court
after Mr
Kew’s report and recommendation are finalised and transmitted
to the parties, and only in the event that the parties
fail to reach
an agreement and /or parenting plan by way of mediation as directed
in this order.
V
P NONCEMBU
JUDGE
OF THE HIGH COURT
APPEARANCES
Counsel
for the applicant
:
M
Veldsman
Instructed
by
:
Anthony-Gooding Inc
Gqeberha
Counsel
for the Respondent
:
T Rossi
Instructed
by
:
Greyvensteins Attorneys
Gqeberha
Date
of hearing
: 31
August 2023
Date
judgment delivered
: 15
September 2023
[1]
Clause
3.1 of the deed of settlement.
[2]
Clause 2.1.14 of the deed of settlement.
[3]
Act
38 of 2005.
[4]
Which
prohibits the relocation of SV before the end of 2026.
[5]
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
1964
(3) SA 623
(A) at 634E and 635 A – C.
[6]
M
R v N R
(A151/2022)
[2023] ZAWCHC 15
(13 February 2023).
[7]
Paragraph 1.1 of the notice of motion.
[8]
Paragraph
1.2 of the notice of motion.
[9]
Paragraph
1.3 of the notice of motion.
[10]
Paragraph
1.4 of the notice of motion.
[11]
Paragraph 1.5 of the notice of motion.
[12]
LB
v WB
(5393/2019)
[2020] ZAFSHC 90
(7 April 2020) at 42-43.
[13]
Soller
N.O. v G and Another
20023 (5) SA 430 (W) (referred to in
LB
v WB
supra).
[14]
Minister
of Welfare and Population Development v Fitzpatrick
[2000] ZACC6; 2000(3) SA 422 (CC) at 428A.