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[2018] ZAGPPHC 614
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C.S v R.G (Reasons) (50346/17) [2018] ZAGPPHC 614 (11 January 2018)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
(1)
REPORTABLE
(2)
OF INTEREST TO OTHER JUDGES
(3)
REVISED
CASE NUMBER: 50346/17
DATE:
11/1/2018
C
S
Applicant
V
R
G
Respondent
JUDGMENT
(Reason)
MABUSE
J
:
[1]
The
applicant in this matter is C S. For purposes of convenience and
distinct ion, I will refer to her as "S". She is
the
biological mother of a minor child called "N G" . The
respondent, R G, to whom I shall refer as "R", for
purposes
of convenience and distinction, is the biological father of N.
[2]
The
reason for the distinction is as follows. On 4 August 2017 R brought
an application against S on an urgent basis. He was therefore
the
applicant while C was, in that application, the respondent. That
application was brought under case number 50346/17 of this
Court. The
said application concerned the said child. Following the said
application, the Court on 4 August 2017 granted R, as
the applicant,
the following relief, against S , the respondent :
"THAT:
1.
The
primary care and residence of N G, born on 13 January 2010 ("minor
child" ), shall be with the Applicant, pending
investigations by
the Office of the Family Advocate ;
2.
The
Respondent will immediately make available and provide to the
Applicant all school related items of the minor child;
3.
The
Office of. the Family Advocate investigate the best interests of the
minor child with specific reference to her primary residence
, care,
contact and guardianship and to make a recommendation in this regard
;
4.
Pending
investigations, the Respondent is awarded the following rights of
contact with the minor child :
4.1
Every
alternative Saturday and/or Sunday from 10h00
-
13h00 under the supervision of the
Applicant , or a person so nominated by the Applicant at the
residence of the Applicant or a
public venue to be nominated by the
Applicant ;
4.2
Telephonic
contact at any reasonable time .
5.
The
relief sought in part B of the notice of motion be postponed sine
die;
6.
The
Applicant and Respondent be granted provisional leave to supplement
their papers as necessary for the hearing of Part B once
the Family
Advocate's recommendations are made available;
7.
The
costs of the hearing of Part A of the application to be reserved for
the hearing of Part B of the application.
BY
ORDER
REGISTRAR"
[3]
The Court order therefore speaks for itself that ever since 4 August
2017, N has been
in the care of R and that S only had contact rights
which rights she was entitled to exercise in accordance with
paragraph 4 of
the aforementioned Court order; that the relief that
was awarded to R on 4 August 2017 was not designed to be of a
permanent nature.
This is clear in particular from paragraphs 1, 2
and 4 of the aforementioned Court order . In brief, the Court on 4
August 2017
awarded the primary care and residence of N to R while
the Family Advocate was empowered and authorised, in paragraph 3 of
the
said order, to investigate the best interests of the said child
with specific reference to her primary residence, care, contact
and
guardianship, and having done so, to make recommendations in this
regard. Later in this judgment I will deal with the Family
Advocate
and his or her powers.
[4]
Both parties received the much awaited Family Advocate's report, S
in particular
on 5 December 2017. Having received and perused the
said report, S's attorneys immediately addressed a letter and sent
the proposed
report to R's attorneys for R's comments. In that letter
they requested R's attorneys obviously to place the letter before R
so
that he could peruse it and, having done so, give them
instructions whether or not he accepted the Family Advocate's
recommendations.
At the same time, and buoyed by the recommendations
of the Family Advocate with regard to the best interests of the minor
child
with specific reference to her primary residence, care, contact
and guardianship, S's attorneys made a humble request that the minor
child be returned to her care under certain conditions.
[5]
In
a letter dated 5 December 2017, R's attorneys wrote and informed S's
attorneys that R did not accept the Family Advocate's report
and was
not prepared to accept it. On 7 December 2017 R 's attorneys wrote a
follow-up letter to S's attorneys. In this follow-up
letter R's
attorneys made it clear that they did not believe that it would be in
the minor child's best interests if she was returned
to S's care.
Furthermore they indicated that they too did not accept the
recommendations of the Family Advocate. It is of cardinal
importance
to point out that in their letter dated 5 (is it not 7?) December
2017, R's attorneys had fully set out the respects
in which they did
not agree with the Family Advocate ' s report. More later about such
respects.
[6]
When
the attempts at resolving the parties' disputes amicably failed to
produce the desired results, S's attorneys launched an application,
now, armed with the Family Advocate's report, for the following
relief:
“
1
.
That the normal rules pertaining to forms services and time periods
be disposed of and that
this
application be regarded as urgent as provided for in Uniform Rule
6(12);
2.
That
the minor child, N G, be returned to the primary care and residence
of the applicant;
3.
That
both parties be granted full parental rights and responsibilities
with regards to guardianship pertaining to the minor child;
4.
That
the applicant be granted primary care and residence of the minor
child subject to the respondent' s right of contact with the
minor
child;
5.
That
the respondent be granted contact as set out and stipulated in the
Family Advocate’s report dated 5 December 2017;
6.
That
the respondent e ordered to pay the costs of this application;
7.
Further
and/or alternative relief "
[7]
R was not amused by the application
brought by S . The said application came, for good reasons in my
view, under severe criticism
by R. In the first place it was brought
under case number 50346/17, the case number in which R was the
applicant and S the respondent.
In S's application, though under the
same case number, S called herself the applicant while she referred
to R as the respondent.
It is for this reason that in his opposing
affidavit R referred to S as a
quasi-applicant.
[8]
In her heads of argument, Adv E de
Lange, appearing for S, dealt with this conundrum as follows. The
first urgent application, here
she referred to the urgent application
that R had launched on 4 August 2017, consisted of Part A and Pa rt
B. In Part B of the
application the respondent, here referring to R,
sought an amendment of the settlement agreement concluded by and
between the parties
on 8 May 2015 and which settlement agreement was
confirmed by the Court when it granted a decree of divorce on 12 May
2015 . According
to Ms de Lange Part A of the said application had
made provision that the parties may set Pa rt B down after the
finalisation of
the Family Advocate's report. Part B of the said
application was accordingly postponed
sine
die
and has not been set down by
either of the parties. The application by S did not, in my view,
amount to re-enrolment of Part B
of R' s urgent application.
[9]
Ms de Lange was quick to point out , and
in fact to just if y S ' s launching of her application and failure
to re-enrol Part B
of R' s urgent application, that it was import ant
to notice that the relief set out in Part A did not make any
provision for a
return date on which S could oppose that relief set
out in Part A, after receiving the Family Advocate' s report. The
order that
the Court granted on 4 August 2017 merely provided for
Part B of R's urgent application to be set down. That the said order
that
was granted on 4 August 2017 had not provided for a fixed return
date when S could challenge the granting of Part A, was correct.
Whether or not that is the correct interpretation of the Court order
of 4 August 2017 will be decided later.
[10]
S 's conduct of launching her application elicited severe criticism
from Adv L van der Westhuizen,
who appeared for R. For her part Adv
van der Westhuizen criticised S for electing to file a separate
urgent application under the
same case number of an urgent
application wherein the respondent, in other words R, in fact was the
applicant. She developed her
criticism of S by stating that the Court
order of 4 August 2017 granted by Manama J, and in particular in
paragraphs 5 and 6 thereof,
made provision that part B of that
application be postponed
sine die
and furthermore that the
parties be granted leave to file supplementary affidavits once the
Family Advocate's report became available.
She criticised S, under
the circumstances, of deeming it fit to approach this Court on a
brand new urgent application in which
she called herself as the
applicant and R as the respondent in the same case number. It was for
this reason that she too referred
to S, in this instant application,
as the
quasi
applicant.
[11]
She labelled S 's conduct in launching her application as an
irregularity . She pointed out that failure
to re-enrol Part B of R's
urgent application as an act which, for practical purposes, will
cause Part B still to be pending. She
argued furthermore that R will
suffer extreme prejudice if S's fatally defective step was excused
and if this current application
was finalised. She opined that the
finalisation of S's application constituted an irregular step and a
gross irregularity. For
the aforegoing reason at the hearing of S's
application, Ms van der Westhuizen, on behalf of R, raised a point
in
limine
of
lis pendence.
[12]
THE ORDER OF 4 AUGUST 2017
PROVIDED NO RETURN DATE
It
is not correct, as was argued by Ms de Lange, that there was no
return date . This return date was, for obvious reasons, not
fixed
but determinable. It could not be fixed as it was not known how long
it would take the Family Advocate to prepare a report,
or, put
otherwise, the date on which such a report would be available was
unknown. That return date would then be fixed upon receipt
of the
Family Advocate's report. Secondly, it is also not correct that on
such a return date, only the relief sought in part B
would be the
subject of the application. It is clear from paragraph 1 of the order
of 4 August 2017 that the issue of primary care
and residence of the
minor child would still be argued. At the pain of repetition, the
said paragraph reads as follows:
"1.
The primary care and residence of N G, born on 13 January 2010 ("the
minor child") shall
be with the Applicant, pending
investigations by the Office of the Family Advocate."
This,
in my view, makes it abundantly clear that the award to R of the
primary care and residence of the minor child was of interim
nature
and that it would still be the subject of a further debate upon
receipt of the report by the Family Advocate. Therefore
the argument
by Ms de Lange lacked merit.
[13]
THE APPLICATION BY S WAS AN
IRREGULARITY
That
argument by Ms van der Westhuizen can be answered simply by reference
to what the Court in J v J 2008(6) SA CPD 30 at page
37 paragraph 20
stated. The Court had the following to say :
“
20.
As the upper guardian of minors, this Court is empowered and under a
duty to consider and
evaluate all
relevant facts placed before it with a view to deciding the issue
which is of paramount importance; the best interest
of the child.”
In
Terblanche v Terblanche it was stated that when the Court sits as
upper guardian in a custody matter, ... then it cited the following
passage with approval:
“…
it
has extremely wide powers in establishing what is in the best
interests of minor or
dependent
children. It is not bound by procedural strictures or by the
limitations of the evidence presented or contentions advanced
by the
respective parties. It may in fact have recourse to any source of in
formation, of whatever nature , which may be able to
assist it in
resolving custody and related disputes.”
In
AD & DD v DW and Others (Centre for Child Law as Amicus
Curiae; Department of Social Development as intervening party 2008(3)
SA 123 CC,
the Constitutional Court endorsed the view of the
minority judgment in
De Gree and Another v Webb and Others (Centre
for Child Law as Amicus Curiae) 2007(5) SA 184 (SCA) par. 32 at page
200 E,
that :
"The
interests of minors should not be "held to ransom" for the
sake of legal niceties. It further
held
that
...,
the
best interests of the child should not be mechanically sacrificed on
the altar of justification of formalism.
"
[14]
Accordingly
I accept the approach adopted in the aforegoing authorities. Whether
S brought a brand new application or should simply
have re-enrolled
Part B of R's urgent application, the overriding factors, in my view,
therefore, are firstly , that the Court
was dealing with the best
interests of the minor child which should take precedence over
formalism; secondly, what this Court dealt
with in this current
application was merely a continuation by S of what R had started on
4 August 2017 . Therefore, the parties
were not confused with what
substantially they were dealing with; the two applications were not
fundamentally unrelated to each
other. Thirdly , the parties were
each given an opportunity to argue the matter in terms of paragraph 6
of the Court order of
4
August
2017 and, fourthly, no party has claimed and proved prejudice by the
steps taken by S ; fifthly, the parties, in both applications
, dealt
with identical issues; and sixthly, following the receipt by them of
the Family Advocate's report, the parties dealt fully
in their
affidavits with such a report and thereby complied with paragraph 6
of the Court order of 4 August 2017. In my view, the
reason for
re-enrolling Part B of the urgent application of 4 August 2017 has
since fallen away..
[15]
THE FAMILY ADVOCATE'S REPORT
The
granting of the Court order on 4 August 2017 was made subject to the
investigations by the Family Advocate. In paragraph 3 of
the Court
order of 4 August 2017 the office of the Family Advocate was
specifically mandated by the Court to investigate the best
interests
of the minor child with specific reference to her primary residence,
care, contact and guardianship. He or she was also
requested, as it
is his or her duty to do so, to make recommendations in that regard.
Before dealing with the Family Advocate's
report it is only apposite
that I dealt firstly with the institution called the Family Advocate.
[16]
The
Family Advocate is established by the provisions of the Mediation in
Certain Divorce Matters Act 24 of f1987 ("the Act").
The
purpose of the Act is to provide for mediation in certain divorce
proceedings, and in certain applications arising from such
proceedings, in which minor or dependent children of the marriage are
involved, in order to safeguard the interests of such children;
and
to amend the Divorce Act in order to provide for the consideration by
a Court in certain circumstances of the report and the
recommendations of the Family Advocate before granting a decree of
divorce or other relief and to make the provisions of s 12(1)
and (2)
of the said Act applicable to any enquiries instituted in terms of
this Act and to provide for matters connected therewith.
[17]
The
Family Advocate is appointed in terms of s 2(1) of the Act. The said
section 2(1) provides as follows:
“
The
Minister may appoint one or more officers in the public service at
each division of the Supreme Court of South Africa to be
styled the
Family Advocate, to exercise the powers and perform the duties
granted or assigned to the Family Advocate by or under
this Act or
any other law and the Minister , or any person authorised thereto in
writing by him, may appoint one or more persons,
whether or not they
are officers in the public service, at any such division to act as
Family Advocate or Family Advocates for
the duration of a specific
divorce action or an application or for more than one such action or
application."
[18]
Section
2(2) states as follows:
"
No
person shall be appointed as Family Advocate unless he is qualified
to be admitted to practise as an advocate in terms of the
Admission
of Advocates Act , 1964 (Act No. 74 of 1964}, and the Minister deems
him to be suitable for appointment as a Family Advocate
by reason of
his involvement in or experience of adjudication or settlement of
family matters."
Section
3 of the Act deals with the appointment of the Family Counsellor s.
It provides as follows:
"3(1)
Subject to the provisions of this section the Minister may appoint at
each division of the Supreme Court of South Africa
one or more
suitably qualified or experienced persons to be styled the Family
Counsellor, to assist the Family Advocate with an
enquiry in terms of
any applicable law."
[19]
Section 4 deals with the powers and
duties of the Family Advocate. It provides as follows:
"4(1)
The Family Advocate shall
-
(a)
after
the institution of a divorce action; or
(b)
after
an application has been lodged for the variation, rescission or
suspension of an order with regard to the custody or guardianship
of,
or access to, a child , made in terms of the Divorce Act, 1979 (Act
No.
70
of
1979 ), if so requested by any party to such proceedings or the Court
concerned, institute an enquiry to enable him to furnish
the Court at
the trial of such action or the hearing of such application with a
report and recommendations on any matter concerning
the welfare of
each minor or dependent child of the marriage concerned or regarding
such matters as is referred to him by the Court.
4(2)
The Family Advocate may-
(a)
after
the institution of a divorce action; or
(b)
after
an application has been lodged for the variation, rescission or
suspension of an order with regard to the custody or guardianship
of
or access to, a child, made in terms of the
Divorce Act, 1979
, if he
deems it in the interest of any minor or dependent child of the
marriage concerned, apply to the Court concerned for an
order
authorising him to institute an inquiry contemplated in subsection
(1).
4(3)
Any Family Advocate may, if he deems it in the interest of any minor
or dependent child of a marriage concerned, and shall,
if so
requested by a Court, appear at the trial of any divorce action or
the hearing of any application referred to in {l){b) and
(2)(b) and
may adduce any available evidence relevant to the action or
application and to cross-examine witnesses giving evidence
thereat.”
[20]
The purpose of the Family Advocate is to promote and protect the best
interests of the minor or dependent
children in legal parental
responsibilities and rights dispute. The professional component of
the Office of the Family Advocate
consists of lawyers, that is the
Family Advocate, who in terms of the
Admission of Advocates Act No.
74 of 1964
, is qualified to be admitted and to practise as an
advocate, and who by the Minister of Justice, is deemed to be
suitable for appointment
as the Family Advocate by reason of his
involvement in or experience of adjudication or settlement of
disputes relating to minor
or dependent children in family matters
and social workers (who are in terms of section 3 of the Act, called
Family Counsellors)
. This Office of the Family Advocate operates in
multi-disciplinary teams in order to ensure a holistic and
qualitative approach
to the best interests of the child throughout
the dispute resolution or in the Court's adjudication process . The
legislative mandate
of the Family Advocate is in consonant with the
provisions of s 28(2) of the Constitution of the Republic of South
Africa Act 108
of 1996 ("the Constitution" ) which states
that:
"A
child's best interests are of paramount importance in every matter
concerning a child."
At
the same time section 9 of the Children' s Act 38 of 2005 ("the
Children's Act") provides that :
"In all matters
concerning the care, protection and wellbeing of a child the standard
that the child's best interests is of
paramount importance, must be
applied."
Section
7 of the Children's Act sets out the factors that must be taken into
consideration by the Court in the pursuit of the best
interests of
the child's standard. These factors are too numerous to enumerate in
this judgment. It is crucially important, though,
that the facts must
appear uppermost in the Court's mind when it determines the best
interests of a minor or dependent child .
[21]
The powers of the Family Advocate are:
21.1
to institute an inquiry so as to be able
to provide the Court with a report and recommendation on any matter
concerning the welfare
of the minor child e.g. as in this current
case, the primary residence, care, contact and guardianship of N ;
21.2
to appear at the trial or hearing of any
application concerning the best interests of the minor child;
21.3
to adduce any available evidence ;
21.4
and to cross-examine witnesses giving
evidence .
See
in this regards 4(3) of the Act.
[22]
The
powers and duties of the Family Advocate as set out in the Act have
been extended by the provisions of the Children's Act. According
to
the Children's Act, it is compulsory for parties to attend mediation
by Family Advocate in parental rights and responsibility
disputes.
Section 33(5) of the Children's Act provides that:
"(5)
In preparing a parenting plan as contemplated in subsection (2) the
parties
must
seek-
(a)
the assistance of a Family
Advocate, social worker or psychologist; or
(b)
mediation through a social worker
or other suitably qualified person.”
It
is of paramount importance to point out that the Family Advocate
cannot be subpoenaed to Court as a witness to testify on behalf
of
any party even if his or her recommendation favours either of the
parties to a dispute. Secondly, the recommendation of the
Family
Advocate is designed to assist the Court in its adjudication of a
matter or dispute between the parties and to arrive at
a particular
order; the recommendations itself lacks the force of law unless it is
incorporated in a Court order. Finally, the
Family Advocate is a
neutral institution and cannot act as a legal representative of
either of the parties on any matter.
[23]
As indicated earlier, the Family
Advocate was mandated by paragraph 3 of the Court Order dated 4
August 2017 to prepare a report
in order to assist the Court in its
adjudication of the dispute between the parties herein. The aspects
that the Family Advocate
was required to investigate and to make
recommendation on were clearly set out in the said paragraph 3. Other
than as set out in
the said paragraph 3, no limits to his or her
powers were set. He or she was left to do his or her work as he or
she deemed it
fit. The Family Advocate did his or her work and
furnished the parties with the copies of his or her report. S
received hers on
5 December 2017. I have somewhere
supra
already narrated the history of
further developments after she had received the report.
[24]
THE FAMILY ADVOCATE'S REPORT
A
copy of such a report was annexed to S 's founding affidavit as
'CS13'. The Family Advocate who compiled the said report was
Shantelle Cordelia Roschelle Dames .
24.1
She stated as in paragraph 3 of her
report:
"3
Stappe
qeneem deur hierdie kantoor:
3.1
Die partye word gesamentlik in
onderhoud betrek op 13 September 2017.
3.2
Die minderjarige kind word op 13
September 2017 waargeneem.
3.3
Op
20
September 2017, word daar deur Mnr.
Hattingh, gesinsraadgewer, 'n besoek by die minderjarige kind se
skoal afgele ten einde met
hoar ouderdomstoepaslik in onderhoud te
voer, hierdie onderhoud vind nie plaas nie weens die Applikant wot
die kind verwyder by
die skoal
om
'n
doktersafspraak na te kom, sien hierin Bylae "A" paragraaf
5
daarvan.
3.4
Onderhoud
met die minderjarige kind op 22 September 2017, deur Mnr. Hattingh,
by die minderjarige kind se nasorgsentrum.
3.5
Door word insae verkry in die
volgende:
3.5.1
Die hofdokumente;
3.5.2
E-pos skrywes deur die Applikant
se regsverteenwoordigers, gedatteer 21 November 2017 en die
minderjarige kind se skoolvorderingsverslag
vir skoolkwartaal 1 tot
3;
3.5.3
E-pos skrywes deur die Applikant
se regsverteenwoordigers, gedatteer 21 November 2017 en 'n skrywe
vanaf Me C Davel, spelterapeut
, gedateer 13 November 2017, welke
terapeuties betrokke is by die minderjarige kind."
24.2
In paragraph 4 the report continues as
follows:
"4
Ek
versoek Mnr K Hatt ingh, 'n geregistreerde Maatskaplike werker en
voltydse Gesinsraadgewer om my behu/psaam te wees met die ondersoek.
Ek bewys die Agbare Hof beleefd nosy verslag hierby aangeheg gemerk
Bylae "A" , welke verslag my behu/psaam was ten einde
tot
my aanbeveling te kom."
24.3
In paragraph 5 he or she continued as
follows:
"5
Die
dispuut
:
Die
residensie van die minderjarige kind word in dispuut geplaas."
24.4
And in paragraph 6 of her report he or
she continued with the backgrounds or the facts. In paragraph 7 he or
she has the following
to report:
“
7
Onderhoud
en waarneminq van die minderiariqe kind, sien hierin Bylae
''A"
paraqraaf 4 tot 6 daarvan:
7.1
Die
minderjarige kind ervaar die skeiding vanaf die Respondent emosioneel
swaar en het 'n intense behoefte om met die Respondent
herenig te
word.
7.2
Dit
word ook deur die kantoordame, Me Bel/ors, bevestig dot die dogter
aan hoar te kenne gegee het dot sy no die Respondent verlang."
[25]
In
paragraphs 4-6 of Annexure A to the Family Advocate's report which is
a report by Kenneth Hattingh it is recorded as follows:
"4
4.1
Na
afloop van die gesamentlike gesprek met die betrokke partye op 13
September 2017, was die minderjarige kind nie bereid om van
hoar
moeder te skei ten einde die ondergetekende in stoat te stel om met
hoar 'n onderhoud te voer nie.
4.2
Dit
was duidelik dot die minderjarige kind uitermatige skeidingsangs toon
en get raumatiseerd , voorkom .
5
5.1
'n Onderhoud met die minderjarige
kind by hoar naskool, is gereel vir 20 September 2017.
5.2
Met aankoms by die skoal het die
naskooljuffrou die ondergetekende egter in kennis gestel dot die
vader die minderjarige kind dokter
toe geneem het aangesien sy siek
was.
5.3
Die moeder is telefonies geskakel
en het aangedui dot sy wel die vader versoek het om die minderjarige
kind terug te neem no die
naskool no die doktersafspraak ten einde
die ondergetekende in stoat te stet
om
die onderhoud met die kind te voer.
5.4
Die ondergetekende het die vader
ook geskakel, moor hy het aangedui dot hy nie kennis gedra het van
die ondergetekende se afspraak
vir 'n onderhoud met die kind nie en
dot die ondergetekende eerder ham in kennis moes stet, aangesien hy
huidig die party is wie
residensie ten opsigte van die minderjarige
kind geniet.
5.5
Die ondergetekende het die moeder
sowel as die vader in kennis gestel dot 'n ander afspraak gereel sat
word.
6
6.1
Tydens
die onderhoud met die minderjarige kind, N , by Siembamba
Nasorgsentrum, op 22 September 2017, was sy baie skaam en
teruggetrokke
en was dit duidelik dot dit nie vir hoar maklik is
om
oar hoar gevoelens en ervaringe te
kommunikeer, nie.
6.2
Wat
egter wel duidelik no vore getree het uit die inhoud wot N tydens
die onderhoud verskaf het, en dot sy huidig getraumatiseerd
is
om
van hoar moeder verwyder te wees en
'n intense behoefte het om met hoar moeder herenig te word.
6.3
Mev.
Juanel Bellors, die kantoordame van die Naskoolsentrum, het aangedui
dot sy waargeneem het dot N ongeveer twee weke tevore
een middag
alleen by 'n sandput gesit het en duidelik emosioneel onsteld
voorgekom het.
6.4
Mev.
Bellors het aangedui dot die minderjarige kind aan hoar meegedeel het
dot sy no hoar moeder verlang .
6.5
Mev.
Bellors dui aan dot sy die vader geskakel het om hom in te lig van
die minderjarige kind se emosionele welstand waarop die
vader reageer
het dot N probeer om hulle te manipuleer en dot hulle maar hoar moet
los sodat sy self die situasie verwerk .
6.6
Beide
Mev. Bel/ors en Mev. Angelique Fouche, N se naskoolopsigter, het
aangedui dot N skaam en teruggetrokke voorkom by die skoal
en nie
maklik kommunikeer nie."
[26]
A valuation of the child is contained in
paragraph 8 and is reported as follows:
8
EVALUASIE
:
8.1
Dit
is duidelik vanuit hierdie ondersoek, dot die minderjarige kind met
hoar moeder as hoar primere emosionele bindingsfiguur en
primere
versorger identifiseer.
8.2
Die
minderjarige kind ervaar die skeiding van hoar moeder traumaties en
ervaar 'n intense behoefte om in die sorg van hoar moeder
herstel te
word.
8.3
Die
moeder toon 'n positiewe ingesteldheid teenoor die minderjarige kind
en die uitoefening van hoar ouerlike verantwoordelikhede
en regte ten
opsigte van die minderjarige kind .
8.4
Die
moeder toon ook ' n sensitiwiteit vir die minderjarige kind se
emosionele behoeftes.
8.5
Die
feit dot die vader volhou met sy aansoek om residensie ten opsigte
van die minderjarige kind te bekom, ten spyte van die ooglopende
trauma wot die minderjarige kind ervaar om van hoar moeder geskei te
wees, skep vrae oor sy behoorlike insig en sensitiwiteit vir
die
minderjarige kind se emosionele behoeft es.
8.6
Die
moeder is in stoat
om
in
die minderjarige kind se f isiese-, emosionele- en intellektuele
versorgingsbehoeftes te voorsien.
8.7
Die
tydelike ontwrigting wot die minderjarige kind mag ervaar deurdat
hoar residensie terug gewysig word na die moeder weeg nie
swaarder as
die langtermyn voordele wot dit vir die minderjarige kind sat inhou
om
herenig
te word met hoar primere versorger en primere emosionele
bindingsfiguur, nie.
8.8
Die
minderjarige kind verwoord 'n uitgesproke behoefte
om
herstel te word in die primere sorg
van hoar moeder.
8.9
Die
moeder is in stoat
om
aan
die minderjarige kind die nodige f isiese-, en emosione!e sekuriteit
te bied en
om
die
minderjarige kind se inte llektuele , emosionele, sosiale en
ku/turele ontwikkelingsbehoeftes effektief aan te spreek .
8.10
Die
moeder is in stoat
om
aan
die minderjarige kind die nodige stabiele en versorgende
gesinsomgewing te bied.
8.11
Aangesien
die moeder hoar verhouding met hoar ver!oofte beeindig het, is daar
geen voortgaande risiko dot die minderjarige kind
aan ieder konflik
of geweld tussen die moeder en hoar verloof de, blootgestel kan word,
nie.
8.12
Gegewe
die minderjarige kind se emosionele trauma is dit die ondergetekende
se mening dot uitgebreide kontak regte vir die vader
nie ondersteun
word nie.”
[27]
The social worker made recommendations
as follows in paragraph 9 of her own report:
"9
AANBEVELING
:
In
die Jig van al die bogenoemde, is dit die ondergetekende se mening
dot dit in die beste belong van die minderjarige kind blyk
te wees
dot:
9.1
Volle ouerlike
verantwoordelikhede en regte behou word deur beide part ye.
9.2
Residensie ten opsigte van die
minderjarige kind toegeken word aan die moeder.
9.3
Die spesifieke ouerlike
verantwoordelikheid en reg van kontak met die minderjarige kind ,
toegeken word aan die vader, as volg:
9.3.1
Kontak
met verwyderingsregte elke alternatiewe naweek van 'n Vrydagmiddag
17h00 tot Sondagmiddag 17h00.
9.3.2
Telefoniese
kontak op 'n Dinsdag en Donderdagaand , tussen 18h30 en 19h00 .
9.3.3
Telefoniese
kontak op die Sandoe wot nie val op die moeder se naweekbesoeke ,
nie.
9.3.4
Kontak
met verwyderingsregte elke alternatiewe, roterende kart skoal
vakansie en die roterende, alternatiewe gedeelte van die long
skoolvakansies . Kersfees en Nuwejaar behoort onderskeidelik en
alternerend tussen die partye te roteer.
9.3.5
Kontak
met verwyderingsregte op Vadersdag.
9.3.6
6
Kontak met verwyderingsregte op die vader se verjaarsdag.
9.3.7
Kontak
met verwyderingsregte op elke alternatiewe, of alternatiewelik, 'n
gedeelte van die minderjarige kind se verjaarsdag .
[28]
The Family Advocate himself or herself
made the following recommendations:
"
9
AANBEVELING
:
Na
deeglike oorweging van al die relevante f eite, die Hofdokumentasie
tot my beskikking en die aangehegte Bylae A, word derhalwe
aanbeveel
dot :
9.1
dot
die spesifieke ouerlike verantwoordelikhede en regte ten opsigte van
sorg en voogdyskap deur beide partye behou word;
9.2
residensie
van die minderjarige kind word toegeken aan die Respondent;
9.3
spesifieke
ouerlike verantwoordelikhede en regte ten opsigte van kontak toegeken
aan die Applikant so vervat in Bylae A, paragraaf
9.3 in geheel."
It
will be recalled that in this reports both by the Family Advocate and
the Family Counsellor the parties were referred to as in
the urgent
application launched by R.
[29]
A certain advocate Maryna Steenekamp, of Legal Aid South Africa,
wrote a letter on 5 December 2017
in which she indicated that she
supported the recommendations in the Family Advocate ' s report. She
also had obtained a copy of
the Family Advocate's report from the
Office of the Family Advocate on 5 December 2017 .
[30]
Attached to the application as Annexure 'CS16' was a report by
Claudie Davel, child counsellor, what
is of paramount importance in
her report is that she made it very clear that:
“
The
intention of play therapy was never to assess N's needs and wishes
regarding primary residency and visitation with her parents,
although
she has shared some of these wishes spontaneously during
consultation.”
[31]
The criticisms that R or his attorneys levelled against the Family
Advocate's report are contained
in Annexure 'CS11 '. There are
several of such criticisms. In my view , these criticisms are unfair
and base less. This Court is
at large to consider the contents of the
report holistically and to determine, whether in its view, the report
deals comprehensively
with the interests of the minor or dependent
child. The Court must be satisfied with the steps that the Family
Advocate took in
the compilation of the report. If there should be a
doubt that one step in the compilation of the report was missed or
not properly
done, the Court should find that there was no genuine
basis for the Family Advocate's recommendations. The Family Advocate
' s
recommendations must be based on objective facts discovered by
the Family Advocate or Family Counsellor and such facts must be
contained in the report. The Court must be ab le, on reading the
report, to establish how the Family Advocate reached his or her
recommendations.
[32]
The Family Advocate's report will always be a debatable issue from
the perspective of a disgruntled
party, especially where its
recommendations do not satisfy such a party. The one party who is not
favoured by such a report, especially
its recommendations, will
always look at such a report with an askance eye in order to find
faults in it.
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 or
dependent child. It is accordingly the Court itself
that must
complain about the deficiency in the report. It is therefore only if
the Court is not satisfied with such a report that
it may order an
alternative method to obtain an alternative report. This is so
because no party will be satisfied with the report
that does not
favour him or her. If a Court were to allow the parties' unrestricted
criticism of the report to supercede its discretion,
such criticism
of the Family Advocate's report by the parties will never cease. The
question therefore is not whether, in the eyes
of the parties, the
Family Advocate's report is defective or not, but whether or not, for
the purposes of establishing . the best
interests of the minor or
dependent child, such a report serves it s purpose and whether the
Court is satisfied with it, despite
the perceived short comings .
Moreover, there is no genuine reason, in my view, why such a report
should not be placed on the same
pedestal as the reports referred to
in section 63 of the Children's Act.
[33]
This Court was satisfied with the report that the Family Advocate
submitted according to the
Court order of 4 August 2017, for the
following reasons. The Family Advocate took all the necessary steps
to obtain information
it placed before the Court; the Family Advocate
who is appointed as such by reason of his involvement in or
experience of adjudication
or settlement of family matters, a
practising advocate who is in turn suitably qualified or experienced,
worked in conjunction
with a Family Counsellor . The Family Advocate
who prepared the report in question is, in my view, indisputably
steeped in the
knowledge of the applicable law and authorities that
deal with minor children. This knowledge is manifested in the fact
that in
her report she referred to relevant caselaw and legislation.
In her report she cited the following cases and paragraphs in support
of her findings:
“
Fletcher
v Fletcher
1948 (1) SA 130
(A):
“
ln
regard to the factor of uprooting , it may
...
be necessary in a particular case to
remove children from the custody of the parent who has been looking
after them, but,
...
it
is undesirable to increase the shock inevitably occasioned through
their parents' quarrel by disturbing the current of their
lives more
than is necessary ...".
McCall
v McCall
1994 (3) SA 201:
“
the
stability or otherwise of the child's existing environment, having
regard to the desirability of maintaining the status quo.”
Soller
NO v
G
and
Another
2003 (5) SA 430
(W ):
Waar
hoar Edele Satchwell R die rot en funksie van die Gesinsadvokaat as
volg uiteensit:
“
The
Family Advocate, are required by legislation, reports to the Court on
the facts which were found to exist and makes recommendations
based
on professional experience. In so doing the Family Advocate acts as
an advisor to the Court and perhaps as a mediator between
the family
who has been investigated... The Family Advocate is not appointed the
representative of any party to a dispute
-
neither the mother, father or any
child . In the sense, the Family Advocate is required to be neutral
in approach in order that
the wishes and desires of disputing parties
can be more closely examined and the true facts and circumstances
ascertained . The
function of the Family Advocate has been described
'to be of assistance to a Court by placing facts and considerations
before the
Court. The Family Advocate should make a balanced
recommendation and should not take sides against one party in favour
of the other."
(Whitehead v Whitehead
1993 (3) SA 72
(S E).”
In
my view there exists fundament ally no genuine reason why this Court
should show lack of conviction in the Family Advocate's
report. This
Court accepts, without question, the recommendations of the Family
Advocate with regard to the primary residence,
care, contact and
guardianship of the minor child, N G. In my view, it was in the best
interest of the said minor child that she
be returned to S; that S be
granted primary care and residence of the said minor child subject of
course to R's right of contact
with the minor child . I therefore
confirm the Family Advocate ' s report.
[34]
Ms van der Westhuizen, in rejecting the Family Advocate's report for
the reasons set out in Annexure
'CS11', proposed, on the basis of the
judgment of my brother Msimeki J, in the unreported judgment of
Barend Kearny v Charne Esterhuizen,
case number 19685/2014, that an
independent and external social worker and/or a child psychologist be
appointed to investigate
the very same aspects the Family Advocate in
this matter had been mandated by the Court to do. Ms de Lange was
against this proposition.
She argued, among others, that such a trend
would result in an unending process. I agree with her. With the
greatest respect, I
do not agree with the approach adopted by my
brother, Msimeki J, in the aforementioned matter. The reasons why the
Court rejected
the Family Advocate's report in that matter do not
appear from the record. Simply because the Family Advocate's report
favoured
either of the parties, did not necessarily mean that it must
be rejected. It goes without saying that either of the parties will
be dissatisfied with such recommendations. But that is not enough.
The Court it self should consider the report holistically and
if it
is not satisfied with such a report, indicate the aspects on which it
is not satisfied with the report. The parties are entitled
to know
the full reasons why a Court does not accept a Family Advocate's
report. The Family Advocate himself or herself is entitled
to know
where he or she went wrong so that he or she should correct the
mistakes . The judgment of my brother does not, in my view,
furnish
reasons why the Family Advocate's report in that matter was rejected
and for that reason I am respectfully not keen to
follow it in this
judgment. I therefore found that the proposition by Advocate van der
Westhuizen to refer the matter to an independent
and external social
worker or psychologist was not a plausible one.
[35]
On 29 December 2017, the Court granted the following order and
promised to furnish its reasons later:
“
1
. R G is hereby ordered to return the minor child
to C S on 29 December
2017;
2.
Both
parties are hereby granted full parental rights and responsibilities,
as per the settlement agreement dated 6 May 2015;
3.
C
S is hereby granted primary care and residency of the minor child as
per the settlement agreement dated 6 May 2015;
4.
R
G is hereby granted rights of contact with the minor child as per the
settlement agreement dated 6 May 2015;
5.
Each
party is hereby ordered to pay its own costs of both applications ;
6.
Reasons
for this order will follow in due course.
BY
ORDER
REGISTRAR"
The
aforegoing are therefore its reasons for the said order.
PM MABUSE
JUDGE OF THE HIGH COURT
Appearances
:
Counsel
for the applicant:
Adv. E de Lange
Instructed
by:
Michca J van Vuuren Attorneys
Counsel
for the respondent:
Adv. L van der Westhuizen
Instructed
by:
F van Wyk Attorneys
Date
heard:
20
&
22
December 2017
Date
of Court Order :
29 December 2017
Date
of Reasons:
11 January 2018