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[2021] ZALMPPHC 6
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A.C.J.S v A.S (4216/2018) [2021] ZALMPPHC 6 (18 February 2021)
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IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
CASE
NO:4216/2018
In
the matter between:
ACJ
S[....]
APPLICANT
AND
A
S[....]
RESPONDENT
JUDGMENT
KGANYAGO
J
[1]
The applicant and the respondent are married to each other out of
community of property.
From the said marriage three minor children
were born. The parties had marital problems which led to the
applicant moving out of
the common home on 21
st
January
2018. The respondent was admitted to an alcohol rehabilitation centre
on 13
th
June 2018. After the admission of the respondent
at the centre, the minor children started living with the applicant
up to date.
[2]
On 11
th
January 2018 the applicant instituted divorce
proceedings against the respondent. On 31
st
August 2018
the respondent was admitted at Polokwane Mediclinic after attempting
suicide. On 16 October 2018 the applicant obtained
an interim
protection order against the respondent which was made final on 21
st
May 2019.
[3]
The applicant brought a Rule 43 application seeking primary care and
residence of
the minor children. In that application the family
advocate recommended that the primary residence and care of minor
children be
retained by the applicant. On 8
th
November
2018 the court awarded the applicant primary care and residence of
the minor children with the respondent having reasonable
contact.
Following the order of the 8
th
November 2018, respondent
requested the family advocate to conduct a further investigation
wherein the family advocate will have
a consultation with the
respondent, applicant and all the three minor children. The family
advocate did that and filed his supplementary
report dated 24
th
February 2020. The findings of the family advocate in the
supplementary report was that both applicant and respondent will
remain
co-holders of full parental responsibilities and rights with
regard to care, guardianship and maintenance of the children. The
primary residence of the minor children remained with the applicant.
[4]
It is the applicant’s contention that the respondent does not
agree with family
advocate’s recommendations. The applicant in
his founding affidavit has stated that after he and the respondent
had separated,
he had a love relationship with another woman who had
two children. That woman together with her two children moved to live
with
the applicant together with his three children from July 2019 to
1
st
July 2020. That woman assaulted one of the applicant’s
son and that resulted in the applicant ending their relationship, and
that woman moved out of the applicant’s house on 1
st
July 2020.
[5]
According to the applicant, as the respondent was dissatisfied with
the family advocate’s
report, she had immediately utilized the
incident of their son being assaulted to launch an application on
17
th
July 2020 to have the minor children re-evaluated by
an independent psychologist. The applicant further stated the
respondent had
reported the incident of the assault of the minor
child to the SAPS Child Protection Unit on or about 30
th
June 2020. It is the applicant’s contention that the respondent
is blowing this incident of the assault on their son out
of
proportion in order to justify her own personal agenda of having the
minor children reassessed.
[6]
The applicant in the founding affidavit has stated that the minor
children have informed
him that they object to be further assessed
and evaluated by any professional as that will open old wounds that
they wish to leave
in the past. He had further stated that the minor
children have told him that for the past two years they have been
residing with
him, and they wish to continue residing with him.
[7]
The divorce proceedings have not yet been finalized and the applicant
is of the view
that what is preventing the divorce to be finalized is
the insistence of the respondent that the minor children be evaluated
as
she does not accept the family advocate’s recommendations.
Based on this the applicant has brought an application seeking
an
order that Mrs Anita Campbell a practicing attorney be appointed as
curatrix
ad
litem
and legal representative of
the minor children. The applicant avers that if a
curatrix
ad
litem
is appointed that will allow the minor children to have
a voice in regard to any possible reconsideration of the
recommendations
made in the reports and the existing court order
and/or any other litigation in the divorce action that involves or
affects them.
Mrs Campbell has consented to act as
curatrix
and
legal representative on behalf of the minor children in the event the
applicant’s application is successful.
[8]
The respondent is opposing the applicant’s application. In her
opposing affidavit,
the respondent has stated that she is not
opposing the appointment of Mrs Campbell as legal representative of
the minor children,
but is opposing her appointment to act as a
curatrix
ad
litem
as well with the special
power and authority to engage any professional person to assist in
the determination of children’s
best interest in as far they
pertain to the present arrangements regarding primary care and
residence, including contact arrangements
with person’s which
may include a psychologist and/or psychiatrist and/or social worker,
and for the
curatrix ad litem
to compile a report in respect
of the primary care and residence and contact arrangements of the
minor children.
[9]
The respondent has submitted that it is unnecessary to appoint a
curator
ad
litem
as she had already on 17
th
July 2020 under the same case number brought an application in this
court for an order that both the applicant and the respondent
as well
as their minor children be assessed by a psychologist appointed by
the court to determine the best interest of minor children
as far as
the issue of primary residence is concerned and furnish this court
with a report and recommendations in that regard.
The respondent has
further stated that one of the reason why she brought the said
application was that she did not accept the family
advocate’s
report.
[10]
The respondent has conceded that her marriage with the applicant has
disintegrated and that it
took a major toll on her emotionally and
psychologically. She became depressed and anxious and turned to
drinking alcohol in order
to try to cope. During June 2018 she was
admitted at a rehabilitation centre and she believes she will never
abuse alcohol again.
[11]
The applicant is seeking orders that the three minor children be
joined to the proceedings as
interested parties and that Mrs Campbell
be appointed as
curatrix
ad
litem
and legal
representative of minor children. The ages of the three minor
children are that the first born is aged 15, second born
aged 12 and
third born aged 3. I will first deal with the issue of an appointment
of
curatrix
ad
litem.
[12]
In the case at hand the function of the
curatrix
ad
litem
will be to protect
the interest of the minor children. Where in appropriate case a
curatrix
ad
litem has been
appointed for the minor children, that curator is required to be
vigilant in protecting the rights of the interest
of minors.
(See
Rein NO v Fleisher NO and Others
[1]
).
[13]
The applicant and the respondent are involved in an acrimonious
divorce which seems the main
dispute is about the primary care and
residence of the three minor children. The applicant and respondent
are dealing with the
custody issue as if the minor children have no
rights at all. In
Minister
of Welfare and Population Development v Fitzpatrick
[2]
Goldstone
J said:
“
Section 28(2) is
not exhaustive of the children’s rights. Section 28(1) requires
that a child’s best interests have
paramount importance in
every matter concerning the child. The plain meaning of the words
clearly indicates that the reach of s
28(2) cannot be limited to the
rights enumerated in s 28(1) and s 28(2) must be interpreted to
extend beyond those provisions.
It creates a right that is
independent of those specified in s 28(1). This interpretation is
consistent with the manner in which
s 28(2) was applied by this Court
in
Fraser v Naude and Others”
.
[14]
Section 10 of the
Children’s
Act
[3]
provides as follows:
“
Every child that
is of such age, maturity and stage of development as to be able to
participate in any matter concerning that child
has the right to
participate in an appropriate way and views expressed by the child be
given due consideration.”
[15]
That means that the minor children have got a right to be consulted
in any dispute that affect
them and also express their views. In the
case at hand since both parties are involved in an acrimonious
divorce it will be difficult
for both parties to consult with the
three minor children in a meaningful way, and accept the wishes of
the minor children without
suspecting that the minor children might
have been influenced by either party in how they will be expressing
their own wishes.
It is clear that there is no longer any trust that
exist between the applicant and respondent. Due to the ages of the
minor children,
they will not be able to represent themselves or even
instruct anyone to represent them.
[16]
In
Christian
Education South Africa v Minister of Education
[4]
Sachs J
said:
“
There is one
further observation to be made. We have not had the assistance of a
curator ad litem
to
represent the interests of the children. It was accepted in the High
Court that it was not necessary to appoint such a curator
because the
State would represent the interests of the child. This was
unfortunate. The children concerned were from a highly conscientised
community and many would have been in their late teens and capable of
articulate expression. Although both the State and the parents
were
in a position to speak on their behalf, neither was able to speak in
their name. A curator could have made sensitive enquiries
so as to
enable their voice or voices to be heard. Their actual experiences
and opinions would not necessarily have been decisive,
but they would
have enriched the dialogue, and the factual and experiential
foundations for the balancing exercise in this difficult
matter would
have been more secure”
[17]
The minor children have been subjected to more than one assessment
dealing with the same issues.
The respondent has launched an
application seeking an order that the minor children be subjected to
another assessment. The applicant
in his founding affidavit has
stated that the minor children have told him that they are objecting
to being further assessed and
evaluated by any professional as that
would re-open old wounds that they wish to leave in the past. Taking
into consideration the
parties acrimonious divorce, the alleged minor
children’s wishes as stated by the applicant sound
self-serving. It will need
an independent person who will be able to
make sensible enquiries on the minor children’s wishes so as to
enable their voices
to be heard.
[18]
Once appointed a
curatrix ad litem
will be able to assess the circumstances surrounding the
parties divorce proceedings and consider whether the steps taken by
legal
practitioners acting for both applicant and respondent were
reasonable, correct and in the minor children’s best interest
and whether that should be ratified. In my view, taking into
consideration the circumstances of this case, failure to appoint a
curatrix ad litem
might
cause grave injustice to the minor children. It is therefore in the
interest of justice that a
curatrix ad litem
be appointed for the minor children.
[19]
The appointed
curatrix ad litem
will be conducting litigation
on behalf of the minor children and must be able to act independently
to ensure integrity in the
service that she will be rendering. It
will therefore be undesirable if Mrs Campbell is appointed both as
curatrix ad litem
and legal representative of the minor
children.
[20]
The applicant is seeking a punitive costs order against the
respondent. A divorce proceeding is an
emotional process which in
most cases affect people’s state of mind. They usually take
irrational decisions unintentionally.
In most cases primary residence
and care are awarded to women. She had carried that child for nine
months undergoing all sort of
emotions during that period. It will
therefore not easily sink on her that primary residence and care of a
3-year-old has been
awarded to a man who did not go through what she
did to bring that life to earth. In my view, this is not a case that
deserves
costs on a punitive scale.
[21]
In the result I make the following order:
21.1 That all the minor
children born of the marriage between applicant and respondent, viz:
21.1.1 A[...] C[....]
J[....] S[....] (Born 5 October 2005) identity number [….]
21.1.2 D[....] P[....]
S[....] (Born 27 September 2008 identity number […]
21.1.3 A[....] S[....]
(Born 23 April 2018) identity number [….]
be joined, as interested
parties as the second, third and fourth defendants respectively in
the divorce proceedings between the
applicant and respondent under
this honourable court’s case number 4216/2018;
21.2
That Mrs Anita Campbell, practising as an attorney at Anita Campbell
Attorneys at 5 Waterbessie street,
Aqua Park, Tzaneen is
appointed as
curatrix ad litem
of the aforementioned minor
children.
21.3
That as
curatrix ad litem
of the minor children, Mrs Anita
Campbell is authorised:
21.3.1 To always act and
do anything that a curator is expected to do on behalf of the minor
children, whenever there is litigation
between the applicant and the
respondent that involves or affect them or their interests;
21.3.2 To determine the
children’s best interest from time to time in relation to
proceedings between the applicant and the
respondent that may be
brought by either of them, viz-a-viz, primary care and residence, and
contact;
21.3.3 To investigate the
children’s living circumstances insofar as they relate or may
relate to the present and future care
and contact arrangements,
including primary residence;
21.3.4 To interview the
applicant and/or the respondent and/or any other person or official
who has any other relevant information
pertaining to the present
primary care and residence, and contact arrangements of the minor
children;
21.3.5 To have
unrestricted access to the minor children;
21.3.6 To have access to
any and all documents or records (including official documents or
records) that directly or indirectly
pertain to the present primary
care and residence and including contact arrangements of the minor
children;
21.3.7 To engage any
professional person who has the necessary expertise to assist in the
determination of the children’s
best interest as they pertain
to the present primary care and residence, including contact
arrangements. The persons may include
a Psychologist and/or a
Psychiatrist and/or Social Worker.
21.3.8 To, on notice to
both the applicant and respondent, approach a Judge in Chambers of
this division for an order clarifying
and/or expanding upon and/or
restricting any power necessary in order to promote and protect the
children’s best interest;
21.3.9 To direct Mrs
Campbell to compile a report for this honourable court for submission
to the honourable court in respect of
the primary care and residence,
and contact arrangements of the minor children within (ninety) 90
days from the date of this order
or as soon thereafter as directed by
this honourable court;
21.3.10 To order that
both the applicant and respondent shall be jointly liable in equal
shares for the costs of the
curatrix ad litem
and of any
expert engaged by the
curatrix ad litem
, provided that such an
engagement(s) shall take place after prior consultation with them.
Such costs to be paid within 30 (thirty)
days of date of invoice or
any such period granted by the
curatrix ad litem
after
consultation with all the parties;
21.4
The respondent to pay the costs of this application on party and
party scale.
KGAMYAGO
J
JUDGE
OF THE HIGH COURT
LIMPOPO
DIVISION, POLOKWANE
APPEARENCES:
COUNSEL
FOR APPLICANT
:
ADV DH HINRICHSEN
BRIEFED
BY
:
VAN ONSELLEN & PARTNERS
COUNSEL
FOR RESPONDENT
:
MS MC DE KLERK
BRIEFED
BY
:
DDKK ATTORNEYS
DATE
HEARD
:
18 JANUARY 2021
DATE
DELIVERED
:
18
TH
FEBRUARY 2021
[1]
[1984] ZASCA 102
;
1984
(4) SA 863
(A) at 874 B-C
[2]
2000 (3) SA 422 (CC) at para 1
[3]
Act 38 of 2005
[4]
[2000] ZACC 11
;
2000
(4) SA 757
(CC) at para 53