About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: High Court, Northern Cape Division, Kimberley
SAFLII
>>
Databases
>>
South Africa: High Court, Northern Cape Division, Kimberley
>>
2017
>>
[2017] ZANCHC 2
|
|
EC v AWC and Another (1304/16) [2017] ZANCHC 2 (13 January 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE DIVISION, KIMBERLEY)
Case
No: 1304/16
Heard
On: 12/09/2016
Delivered
On: 13/01/2017
In
the matter between
EC
Applicant
And
AWC
1
st
Respondent
DS
2
nd
Respondent
JUDGMENT
PAKATI
J
[1]
My brother Lever AJ granted the
following
interim
order on 24
June 2016:
··
1.1
[The]
first and
second
respondents
are
interdicted
and prohibited
to have [baby EC],
the
daughter
of [the]
applicant and [the]
first
respondent,
be evaluated
by
any
psychiatrist ,
psychologist , or
private
social worker or to have her medically examined
for alleged sexual misconduct previously committed;
1.2
[The] respondents are prohibited and interdicted to proceed with the
intended evaluation of [baby EC] by a certain Dr Cooper
or any other
person.
2.
[The] second respondent is interdicted and prohibited to interfere
with the abovementioned children of [the] applicant and [the]
first
respondent and in particular:
2.
I
That
she
[the
second
respondent]
be
prohibited to
lay
charges at Child
Line.
3.
The
issue
as
to
costs
is
postponed
until
12
September
2016
to
the opposed roll.
"
[2]
The
applicant,
Ms
EC, is
married to
the first
respondent,
Mr
AWC,
a
pol
ice
officer
in
the
South
African
Police Services
(SAPS)
stationed
in
Douglas.
They
have
two
m
i
nor
ch
i
ldren,
a
son
born
on
20
July
2007
and
a
daughter
born
on
19
January
2012.
These parents
stay
with
their
respective
live-in
partners.
The applicant
with
Mr
S
dW and the
1st
respondent
with
Ms DS, the
second
respondent.
[3]
The
applicant
initiated
divorce
action
in
the
Regional
Court,
Kimberley,
under
Case
Number
NC/KBY/RC
14
4
/2014.
The
primary
care
and
residency
of
the
minor
children
was
in
dispute.
Mr
AH
Nel,
the
Family Advocate,
and
the
Family
Counsellor,
Ms
ER
Browers, investigated the
matter
and
recommended
in
their
reports
dated
28
February 2014
(Annexure
"A"),
that
the
primary
care
and
residency of
the
minor
children
be
awarded
to
the
applicant.
At
that
stage, there
were
no
allegations
of
sexual
harassment
of the
minor
daughter.
The
second respondent
was residing in
Henna
nus
at
the
time.
Ms
Browers
held a
joint
consultation
with
the
parents
on
28
August
2014.
The
final
report
is
dated
24 February
201
5 and
by then
the second respondent
was settling in
in
Douglas.
The first
respondent
rejected
the Family
Advocate's
recommendations.
[4]
It
is
of significance to note
that
before
the second
respondent
arrived
in
Douglas
and stayed
with
the
first respondent there were no sexual abuse
complaints
of any
nature
against
Mr
I
dW
,
the
applicant's partner.
The
first
allegations
of
sexual
harassment
coincided
with
the
second
respondent's
arrival.
Ms
Maretha
M
Klinck,
a
Family
Advocate,
compiled
a
further report
(Annexure
"
B")
dated
12
May 2015 and
specifically
dealt
with the sexual abuse
allegations but could not confirm
same.
The
pertinent
portions
of
her
report
record:
"Information
from [baby EC, the minor child]
[5.2.4.1]
The child was reluctant to talk to the Family Counsellor at the
beginning of the assessment but by using free drawing
and extended
rapport building, she became congenial and talkative.
[5.2.4.2]
The Family Counsellor established through non-leading and
non-suggestive questions that the child does not experience
any
discomfort regarding the significant people in her life.
[5.2.4.3]
The egg technique was used to establish if
[baby
EC]
experiences people intruding in her personal space. She was asked
to indicate who she allows into her personal space and no intrusion
without her permission was established.
[5.2.4.4]
The body diagram technique was used to determine [the minor child 's]
knowledge of body parts and to determine if she
experienced any
intrusion of her body. No sexual body parts were identified and no
discomfort regarding her body was identified.
[5.2.4.5]
The child was able to identify the emotions
sad
which
she indicated as "trane" (tears) and
happy
which
she indicated as ''beter ", (better), but could not indicate
what makes her feel sad and happy.
[5.3]
Observations before and after the assessment.
[5.3.1]
The child was accompanied by the plaintiff and her boyfriend, [Mr I
dW].
[5.3.2]
Contact between the minor child and [Mr I dW] was spontaneous and she
displayed no fear or discomfort towards him. She asked
him to assist
her to get her food from her bag, was happy to be reunited with him
after the assessment and she was satisfied to
be kept busy by him,
while the plaintiff completed the questionnaire.
6.
EVALUATION:
6.1
Good
rapport
was
established
between the
minor
child
and
th
e
Family Counsellor. The
child 's poor
language
developm
en
t
was
overbridged
by clarifying
terms
with the plaintiff
and
by
clarifying
with the
ch
ild
to
establish what she
sa
id.
6.2
Through age
appropriate
media
and
techniques
used
during
the assessment
o
f
the
child,
no
trauma
was
identified
within
the
child
and
no statement
of sexual
abuse was
made
by [baby EC].
"
[5]
The applicant alleged that the second respondent arranged for baby
EC, who was three years old at the time, to be physically
examined by
Dr G Morolong at Douglas Hospital on 04 May 2015 without the
applicant's consent. A criminal allegation of sexual harassment
of
baby EC was lodged against
Mr
I
dW after the children had visited the respondents. Dr Morolong found
no injuries to the genitalia of the minor child after the
medical
examination .
[6]
Again, a clinical psychologist, Ms Bettina Daubermann, examined the
child and consulted with all the parties between 26 June
201 5 and 18
July 2015. A comprehensive report dated 01 September 2015 was
compiled in this regard but the respondents, dismissively,
did not
accept the result. Ms Daubermann gave the following impression about
the applicant and
Mr
I
dW, her partner:
"4.2.2
Biological Mother: /M
s EC]
During
the assessment, [Ms EC] and her partner were calm and contained and
maintained a serious composure. No mood symptomology
was found to be
of significance for the biological mother. Interpersonal
boundaries
were clear, as reflected by their assertive communication style. The
couple composed themselves in a respectful, serious
and polite
manner. Their emotions were contained and their responses controlled.
No signs of psychopathology were found to be of
concern for their
ability or capacity to fulfil primary caregiving roles for the
minor children.
The
parental/couple subsystem appeared separate from the children/sibling
subsystem indicating a healthy family system. [Ms EC]
and [Mr I dW]
are considered able to provide the children with a stable, caring and
organised home environment. The couple both
believe in "early to
bed, early to rise " and are focussed on preparing for tasks
ahead and showing commitment.
The children's lifestyles are likely to
be calm and stable, characterised by routine and on-going care and
supervision from their
caregivers."
Ms
Daubermann concluded that: "no signs of abuse or psychopathology
were identified." As pointed out earlier the respondents
rejected the report and on the contrary, contemplated legal action
against Ms Daubermann for alleged defamation of character.
[7]
An email was forwarded to the Family Advocate, Ms Liesel Evans, by
the second respondent on 20 November 2015 at 09h42 stating:
"U
het
gese
dat
ek
'nforensiese
evaluasie
by
'n ander
sielkundige
kan
kry
as
tweede
opinie.
"
Ms Evans
responded in an email addressed to the first respondent the same day
at 09h47 as follows:
"Ek
het aan u gestel
dat u welkom
is
om
'
n
ander sielkundige
aan
te stel
om u te evalueer.
Ons benodig dit
nie in terme van ons ondersoek nie, so
ek kan
ongelukking nie aan u versoek voldoen nie.
"
[8]
Ms Daubermann's report referred to an incident where the second
respondent had a Facebook post on the
"
Douglas
Skinderblad "
apparently defamatory in nature of the
applicant. She had attached photos of her children. The report
revealed that the second respondent
contacted Child Line and had
borrowed money from her employer to have the minor child,
baby EC, evaluated further.
[9]
Para 2.5.2 of Ms Daubermann's report states:
"[Ms
DS] reported that she
initiated contact with [Mr
AWC]
on Facebook in 2014 after hearing about his
marital problems and "they
provided
much needed emotional support to each other, and developed a
strong friendship ". In her
personal script, a
challenging childhood, personal life
achievements, as well as "controlling,
and verbally and emotionally abusive "
marriage was described. During the last years of
her
marriage, [Ms DS] reportedly saw two Clinical Psychologists,
two Psychiatrists, was voluntarily admitted
into a
psychiatric Clinic, and saw a Specialist Physician. [Ms
DS] saw a Clinical Psychologist for marital problems
with her
former husband. In 2011, Psychiatrist, Dr Christie
reportedly diagnosed her
with Bipolar II
Disorder, and she was prescribed
medication as
a result. Due to a
negative reaction to the medication, she
was referred
via a GP to a Specialist
Physician, who diagnosed her with Chronic Fatigue
Syndrome.
She was advised to get sterilized, which resulted in
feelings of depression and her seeking help from
another
Clinical Psychologist. namely Dr
Fischer.
She reported that
Dr
Fischer allegedly
concluded
that
she
did not
have
Bipolar
II
Disorder
but
was unable
to
provide
collateral
information
to
confirm
this."
Ms
Daubermann recommended that the minor children remam m the primary
care of the applicant while maintaining regular contact with
their
father.
[10]
The applicant alleged that when the respondents realised that
the sexual allegations against Mr
I
d W did not succeed they accused the latter's son, Mr S dW, of
sexually molesting baby EC. The first respondent secured a brief
report from a private social worker, Ms Mariette Joubert, which he
presented to the magistrate's court and applied for an order
placing
baby EC in his custody, which was granted. The applicant stated that
she was not afforded an opportunity to challenge the
said
application. When baby EC was placed in the custody of her father the
applicant allowed her son to accompany him not to separate
them.
[11]
Ms Christelle Hattingh, the National Area Manager of Child
Welfare, Northern Cape, assisted the parties in the preparation of a
parenting plan. She also investigated new allegations of sexual abuse
lodged by the respondents against
Mr
S dW, the son of
Mr
I
dW. Once the parenting plan was concluded, the parties appeared
before Magistrate Fourie. The first respondent rejected the plan
and
refused to accept it even though he signed it. Oral evidence was then
adduced consequent upon which the Magistrate awarded
primary care and
residency of the children to the applicant. The respondents were
dissatisfied with the decision and commenced
with plans to commission
a further report by a clinical psychologist. The first respondent
threatened the applicant with criminal
charges accusing her of
contravening the parenting plan. This took place after the Magistrate
's order that the applicant had not
consented to further evaluations
of the child EC. In desperation to prove sexual abuse, the
respondents persisted in their demand
for further evaluations of the
child EC.
[12]
Ms Hattingh in her investigation considered the reports and further
ones by the experts and concluded that there was no proof
of any
sexual molestation of the minor child by Mr S dW. Her report also
revealed that a Dr Esta van Niekerk and a Dr L Brits,
a gynecologist
under anaesthesia, also examined the minor child. However, Dr L Brits
concluded that her hymen was still in tact.
[13]
The applicant refused that the minor child, herself,
Mr
I dW and his son, Mr S d W, be referred for further
evaluation. The respondents were undeterred and threatened with
further evaluations
by a Dr Cooper. Despite her refusal , Dr Cooper
nevertheless consulted with the minor son, Mr AWC, Ms DS and her two
children.
The applicant and her daughter (the minor child) did not
avail themselves for assessment.
[14]
In her papers the applicant makes the averment that the minor child's
repeated examination by experts were humiliating, prejudicial
and
upsetting to her (the minor child). The fact that the respondents
threatened to sue Ms Daubermann for not giving a report
favourable to
them, which led to her withdrawal of the said report, is quite
disturbing.
[15]
The respondents' intention was to remove the minor children from the
primary care and residency of the applicant to avoid paying
maintenance towards his minor children until she obtained an order
from the maintenance court. Only then did he pay a minimal amount
(not stipulated). Despite the family advocate's report and other
reports the first respondent obstinately refused to accept that
the
applicant was found to be a fit and proper mother to take care of her
children.
[16]
The respondents alleged that the appellant is falsely implicating
them in wrongdoing. According to the first respondent, the
applicant
neglected and abused the minor children before the divorce
proceedings were initiated. He says he informed the Social
Worker, Ms
Collette Botes, about it. The applicant refused counselling and/or
therapy and instead filed for divorce during January
2014. She left
the common home with the children and moved in with Mr I dW who had
prior history of domestic violence. He was concerned
about the safety
and welfare of the minor children. He maintains that the applicant
also frustrated his contact rights, which resulted
in the office of
the family advocate conducting an investigation. He concedes that
Advocate Nel and Family Counsellor, JR Browers,
in their reports
dated 24 February 2015 recommended that the primary residency of the
minor children be awarded to the applicant.
[17]
The respondents contended that all the evaluations involving the
little girl were done with the instruction of the Family Advocate
and
the applicant's consent. There was no need for the litigation because
"a
simple phone
call to the respondents
or
an email
or
phone
message
sent
directly
to
the
respondents,
or
a
meeting
between
the
applicant
and
the respondents
requesting
prayers 1.1 to 2.1 would
have resolved
this matter
without
the
need
for
unnecessary
and
expensive
legal
intervention.
"
They
contended further that after all evaluations were completed no
further evaluations were conducted.
[18]
According to the first respondent, the evaluation of his daughter by
Dr Cooper "focussed on submitting a recommendation
regarding the
primary care and residency of the minor children, and not for
evaluation of sexual abuse."
[19]
The first respondent states that during April 2015 he raised
a concern with Ms Klerk about his minor daughter
who complained
that she had been inappropriately touched during bath times. He says
Ms Klerk interviewed the minor child who in
turn confirmed this.
Advocate Evans then instructed the applicant to take the minor
children for examination but she refused.
[20]
The first respondent alleged further that the applicant's father
assaulted him and threatened him with further
violence in front
of the children on 01 May 2015. He instructed Ms DS, the second
respondent, to report the incident to Child Line.
The latter advised
them to report the matter to the police, which they did on 04 May
2015. The first respondent states that Ms
Klinck examined the minor
child on 07 May 2015 but the applicant did not object to this. The
respondents were not even present
during this consultation.
[21]
After the interim parenting plan was ordered by the Regional
Magistrate on 13 May 2015 Mrs Hendrina Selepe, the Social Worker
of
Child Welfare in Douglas, enquired about the progress of appointing a
psychologist.
It
was when
he, the child, the child's father, arranged Dr Cooper to examine the
child.
[22]
The respondents alleged further that the applicant and her legal
representative prevented them from receiving communication
regarding
the minor children. They cited an instance where a letter was
forwarded to Ms Lizette Pienaar on 14 June 2015 whereas
the applicant
knew that Ms Pienaar was no longer representing the second
respondent.
It
is said
that the second respondent received this letter from Ms Pienaar on 21
June 2015 and did not have enough time to respond
to it. According to
the first respondent the letter was not addressed to the second
respondent and did not refer to the minor child's
evaluation
regarding any sexual misconduct. It reads,
inter
alia:
"D
i
t
is ans
opdrag
om
u
mee
te deel dat
ans
klient
nie
haar
toestemming
verleen
vir
enige
verder
evaluasies
van
haar
minderjarige
kinders
nie
tensy
dit
deur
die
gesinsadvokaat versoek
ward.
"
[23]
The first respondent stated that on 05 November 2015 he and the
applicant had a second interview with Ms Evans during which
he raised
his concerns about the minor child. Ms Evans addressed a letter on 18
November 2015 to Ms Pienaar with the following
instructions found at
para 3:
"Srywer
het met beide partye na die konsultasie telefonies gekonsulteer
en is daar ooreengekom om vir 'n laaste maal
te poog om tot die bodem
van hierdie problem te kom. Jn terme van die agtergrond en
geskiedenis van hierdie aangeleentheid sal
'n kortstondige assesering
of vlugtige fisiese ondersoek nie na wense of in die beste
belang van [baby EC] wees
n
i
e.
"
Thus,
according to Ms Evans a physical examination was deemed to be not in
the interest of the child.
[24]
The first respondent stated that he is in agreement with prayers 1.1
to 2 .1 of the Notice of Motion being granted in favour
of the
applicant. He nevertheless opposed the application because it was
against the instruction of Family Advocate Ms Evans who
stated inter
alia, in her letter dated 23 March 2016:
"...
'n
onpartydige
sielkundige,
moontlik in
Kimberley aanstel
om
die
sielkundige
evaluasie
op die
partye
se
lewensmaats
asook
die
minderjarige
kinders
te doen,
met
die oog
op 'n verslag
van
wat
in die
beste
belang
van
die
kinders
sal
wees
ten
opsigte
van primere sorg
en
kontak
na
die
egskeiding. Hierdie skrywe
kan
as
verwysing aan
die
verkose sielkundige verskaf
word.
"
[25]
The first respondent denies that the evaluations were intended to
investigate sexual misconduct but to assist the family
advocate
investigate and make recommendations regarding the primary care,
residency and contact of the minor children in
the divorce
proceedings . He contended that if the applicant was against the
evaluation of the minor children by psychologist s
she should have
said so in March 2016 already when the second respondent forwarded
her an email on 24 March 2016 informing her
about the family
advocate's request to appoint one. During the divorce hearing in
Douglas Regional Court it became clear that Ms
Hattingh had advised
the girl's parents to appoint a psychologist in compliance with the
family advocate's instructions. He
contended that the applicant
consented to the medical examination of the minor child by Dr Van
Niekerk who also referred her to
Dr Brits on 03 May 2016. The second
respondent was at work then.
[26]
Adv Nel extended the contact rights of the children, an act which
displeased the applicant.
It
was
also claimed that she also disregarded a parenting plan that was
ordered by the Regional Court, Douglas on 13 May 2016. Consequently,
the first respondent opened a case with the SAPS, Douglas, with Cas:
131/6/ 16. On 23 June 2016 Ms Pienaar forwarded to the first
respondent the present application which the second respondent was
unaware of.
[27]
The first respondent gave an impression that his partner is innocent
in this conundrum. He intimated that she was out of town
when he
received the email and the letter from Ms Liezette Pienaar on 23 June
2016. Para 3.7 of opposing affidavit states:
"The
second respondent was shocked by the application as the second
respondent is not a party in this matter and did not participate
in
any discussions or decisions regarding the minor children and was
never present or part of any evaluations on [baby EC]. The
only
involvement that the second respondent has in the minor children was
during their visits with the first respondent. [The]
second
respondent did provide supporting statements for the first respondent
in terms of specific incidences in this matter. [The]
second
respondent has been contributing towards the costs of the
psychological evaluation since the first respondent and the
applicant
do not have the financial resources. Dr Cooper
wanted to be paid a deposit before he started his evaluation and the
second
respondent merely wanted to prevent further delays in this
matter. This was the only financial contribution that the second
[respondent]
made in this matter. "
[28]
It is evident that the second respondent has been highly involved in
this matter. She borrowed money from her employer in order
to finance
the evaluation of the children by Dr Cooper. She is the one who
phoned Child Line and was directed to the police by
them. She
organised the assessments of the children by Dr Morolong. She further
addressed a Whatsapp message to the applicant dated
30 March 2016
where she,
inter
alia,
wrote:
"Ek
is 14 my oupa en ouma begrawe. Ek het my
oupa se
meubels
en kar
geerf Daar was geen geld
om horn te begrawe nie. My
pa
het
die kar en
van die meubels verkoop net om
begrafniskostes
te dek. Die ou Mercedes kar
by
oom
Simpie
fangs die
skuur
is
my
oupa
se
kar
gewees.
Ek
het
begin rook en drink. Ek ontmoet
'n
regte
washout gemors
wat 20 was. Hy
trek
by ons
in. Hy
en my pa
begin
besigheid
van huis af Een
aand
was ons
gesuip saam
pelle.
·
Een van hulle het my verkrag. Ek
moes alleen vigs
toets
doen
en
bid
ek
is
nie
swanger nie.
Die
ou
het
my
as
seksslaaf gebruik en
mishandel. Hy het skuld ajbetaal deur my uit te Leen vir mans vir
seks.
Toe ontmoet ek
Alec kart na ek 16
was. Ek het die gemors gelos. Alec
het my terug
na Jesus gebring
en soos prinses
behandel.
My ouers was
bitter
lief
vir
horn
en
ek
ook.
Ek
was
dom
om
horn
te
los
toe
ek universiteit
toe
gaan.
(10.00am)
"
[29]
The second respondent attached to the opposing affidavit a report by
Martin Yodalken and Leigh Pettigrew, Clinical and Educational
Psychologists, dated 09 May 2016, compiled in order to conduct a care
and contact assessment in the best interests of her minor
children
with her husband. In their evaluation of the second respondent, they
record in paras 68, 70 and 94 and report:
"68.
Dr Pingo reported on 26 February 2015 that she consulted with [Ms DS]
on 07 March 2014 with symptoms of a Major Depressive
Disorder which
Dr Pingo assessed was part of a Bipolar Type II. She was admitted on
11 March 2014 to Kenilworth Clinic's in-patient
program and
discharged on 04 April 2014 having been provided with mood
stabilisers and antidepressants. She was followed up once
on 17 April
2014 and she did not attend further appointments reportedly because
of the distance between Hermanus and the clinic.
69.
Dr Pingo was contacted telephonically on 18 March 2016. Following
this interview Dr Pingo submitted an email in which
she confirmed the
information, which she provided telephonically after having consulted
her notes.
70.
Dr Pingo first saw [Ms DS] on 07 March 2014 when she presented with
symptoms of a Major Depressive Episode with a background
of marital
stressors. She had previously consulted with a psychiatrist, Dr
Christie, who had diagnosed her with a Bipolar 11 Disorder.
She
had been given medication, but because of the side effects, she had
stopped taking the medication and had instead commenced
psychotherapy.
94.
The clinical assessment of [Ms DS] did not confirm the existence of
the Obsessive Compulsive Personality Features but did reveal
traits
and behaviours consistent with the diagnosis of a Histrionic
Personality Disorder with Narcissis tic features."
The
second respondent also revealed this information to Ms Daubermann.
[30] At para 4.2.1 of her report, Ms Daubermann stated:
"4.2.1
...Furthermore, she presented with poor interpersonal boundaries, and
to have enmeshed herself in [Mr AWC's] personal
affairs, such as his
marital and parental related problems. Without establishing clear
boundaries, [Ms DS] has the capacity to
do harm to the children's
relationship with their biological mother, by interfering in personal
affairs and influencing the minor
children 's perception of their
mother. The couple display predominantly extroverted qualities, and
it is the clinical impression
that they are in the early romantic
phase of their relationship, reflecting pre-mature
commitment,
characterised by
enmeshed interpersonal boundaries. As a result, [Mr A WC] and
his partner are not considered able to provide the minor children
with an emotionally stable environment [now]. Additional reasons
include the significant life adjustment of [Ms DS] (ie. new job;
new
home, father figure and schools for her minor children); [Ms DS 's]
current hypomanic episode , and the couple 's strong egotistical
traits. "
[31]
The second respondent also attached a report compiled by Ms Miranda
Pretorius, a Clinical Psychologist, who referred to the
findings of
Dr Christie, a Psychiatrist in Hermanus, who also diagnosed her with
Bipolar Disorder, Type II. She described Bipolar
Type II disorder as
follows:
"
Bipolar
II
disorder is
characterised by
the following
symptoms: the patients
experience unusually intense emotional states that occur in
distinct
p
eriods
called
"
mood
episodes.
"
Each
mood episode
represents a drastic change from
a
person's
usual mood and
behaviour.
"
[32]
Ms Pretorius concluded in her report dated 21 November 2015 that she
did not find any evidence that the second respondent is
suffering
from Bipolar 2 Disorder. However, she has a history of depression but
denied that she felt depressed at that moment.
According to Ms
Pretorius she might be suffering from Chronic Fatigue Syndrome, which
fitted the findings of a Dr Tredoux. She
recommended, though, that it
would be useful to get more collateral information from family
members/work colleagues who have known
the second respondent for an
extended period who would be able to give a view of her
long-term behaviour/emotional patterns.
Dr Christie, on the other
hand, would also give details as to why she diagnosed her with
Bipolar II Disorder in 2011. Dr Pretorius
also recommended that
Kenilworth Clinic, where she was admitted, should have been able to
confirm her diagnosis at admission.
[33]
Significantly, the reports show that Ms DS suffers from a
psychological problem, which influences the way she conducts herself
especially
around
Mr
AWC and his children. The unfounded allegations of sexual
abuse confirmed by a number of specialists, as alluded to earlier,
were
a ploy by
Mr
AWC and Ms DS for the applicant to loose primary care and
custody of her minor children. Placing them under their care and
custody
would not be in their best interests as is evident from the
reports. Ms DS is clearly meddling in the affairs of the girl and her
parents.
Mr
AWC has
chosen to look the other way. Ms Daubermann found that Ms DS has a
capacity to do harm to the children's relationship with
their mother.
She was therefore not an innocent bystander, especially where Ms
Daubermann remarked at para 2.5.2 of her report:
"[Ms
SD]
initiated the
psycho-legal
process with
the
undersigned
Psych
o
logist,
wa
s
found
to
have written thefirst
email
to the undersigned
Psychologis
t
on
[Mr
A
WC
]
's
behalf,
and
settled
the
account.
When
clarification
was sought as to who wrote the
first
email (from
denisecorrie7
@
'
gmail.co
m
)
that
was
signed,
["MR
AWC"
]
,
[Ms
DS]
confirmed
that she had written the
email
on his behalf, as she was
"
doing
the
'
admin
'f
o
r
[Mr A
WC]
and
using his
phon
e
"he
n
ce
the signature"
.
As
a result,
it
was
uncertain as to who wrote the emails from
denisecorrie7
@
gmail.com
that were signed, ['
'Mr
AWC"]
thereafter
.
"
[34]
[Ms DS], on her own volition, submitted to Ms Daubermann her
psychiatric or psychological information. But when it dawned upon
her
that the Bipolar 2 Disorder is turning out to be an impediment, the
criticism which is contained in the opposing affidavit
to this effect
was composed:
"[Ms]
Daubermann has
less
than five
years '
experience
as
a
clinical
psychologist; and
it
was her
first
attempt
in doing a
forensic
evaluation
in a custody case. She did not have adequate
experience
in conducting a
pro
p
er
evaluation
and
resorted in
reviewing
the
Rule
58
Application
documents
that
[were]
not yet
reviewed
by
the
Court,
conducted
short
interviews
with
the adults
and
minor
children
and
performed one diagnostic
test that was
not normally
used
in custody
cases. [Ms] Dau
b
ermann only contacted two
collateral
s
."
[35]
Ms Daubermann addressed a letter of withdrawal of the contents of her
report that she compiled in respect of the respondents
to Advocate LB
Evans, a Family Advocate, on 23 February 2016. She mentioned
inter
alia,
that
the respondents claimed that the contents of her report insinuated
allegations of defamation of character against them. The
second
paragraph of the letter states:
"The
reasons for the above request are: Two adult parties assessed, namely
[Mr A WC] and [Ms DS], have raised significant concerns
in writing
(see email correspondence and attachment) about the respective
psycho-legal report. Their concerns have been interpreted
to include
concerns about the reliability and validity of the findings in the
report. The respective parties claim to hold contradictory
evidence
in relation to a large portion of the findings of the report, and as
a result, request further assessment in order for
their evidence to
be taken into consideration before a /the psycho-legal report is
presented to court. Mr
[A
WC]
and Ms [DS] further claim emotional damages [because] of the content
in the report respective of [defamation] of character.
"
[36]
It
is strange that the
respondents' letter addressed to Ms Daubermann where they raised
their concerns is not included in their papers.
The contents of that
letter are significant in the face of the threat to sue her. What is
interesting is that in 2011 already [Ms
DS] was diagnosed with
Bipolar Disorder II by Dr Christie.
[37]
Ms Daubennann found that the applicant had no Bipolar or Depressive
symptomology, which was found to be significant. She
also found
that her
"c
o
mpulsive
personality traits
sugge
s
t
that
[Ms
EC]
is
expressively disciplined
in that
she
maintains
a
regulated, highly structured
and
organised
life.
"
On the
other hand, Ms Daubermann stated the following about the first
respondent (Mr AWC):
"
According
to [Mr
AWC],
the Social
Worker of the
Court
[which]
had conducted an investigation into the alleged sexual
allegations with [baby EC].
had given
direct
feedback
to him
that [EC] had
told
her a similar story
as
to
what
she
told
him
(confirming
the
sexual
allegations).
[Mr AWC]
was unable
to
identify
the
name
of
the
respective
[sic]
Social Worker
who had allegedly given him
this
feedback
or
provide
any documentation containing these findings.
[Mr
A
WC]
displayed a nonchalant
attitude
when
he
was
given the
opportunity to
locate
the
alleged feedback
in
the
report
of
a
Social
Worker
who
had
conducted
such an investigation,
but
did not.
Jn reviewing
all the
court
documentation from
the
Office
of
the
Family
Advocate, no
report
was found containing
the
alleged
feedback [Mr A
WC]
claimed
he had received.
"
[38]
The respondents did not allege that Ms Daubermann received their
information from any other source. Her findings result from
their
assessments after having consulted with them. Therefore, she did not
suck the information from her thumb. They object to
her findings
because it was unfavourable to them. Their rejection of her report is
baseless and disingenuous. The report is not
considered in isolation.
It is supported by other expert reports that the respondents attached
in their opposing affidavit. Ms
Daubermann 's report is so detailed
that it cannot be ignored taking into account the best interests of
the children.
[39]
The respondents' attempts to have the minor daughter assessed in
order to confirm sexual abuse has proved to be a futile exercise
and
financially draining to the first respondent. The first respondent
also rejected the Magistrate's order, which granted the
applicant
primary care and residency of the minor children. He demanded
that the order granted by Lever AJ be reviewed and
set aside, which
is impossible.
[40]
The argument that if the prayers of the letter written to the
respondents by the applicant corresponded to prayers 1.1 to 2.1
of
the Notice of Motion they would have acceded to the request, does not
hold water. The respondents had the opportunity to withdraw
their
opposition but they did not. The first respondent has tried to paint
a bad picture of the applicant thereby defend ing the
second
respondent but the reports found differently and the evidence paints
a different picture.
[41]
The respondents have conceded that they are satisfied that the
minor child will not be evaluated and subjected
to any further
examination and therefore prayers 1.1 to 2.1 may be confirmed. In
para 4.1 of their opposing affidavit the following
is stated:
"The
purpose for the application was to prohibit the respondents from
having [baby EC] evaluated by any person for previous
alleged sexual
misconduct. The respondents [are] in agreement with the applicant
[that] the evaluations on [baby EC] [have] been
concluded. The
respondents [accept] the findings of the evaluations and they have no
further intention of requesting any more evaluations,
thus proving
that this application is uncalled for and unnecessary. "
THE
COSTS ISSUE
[42]
The issue of costs of 24 June 2016 was deferred until 12 September
2016 when this matter was argued (see order by Lever AJ
above para
1).
Mr
PJ Heymans, on
behalf of the applicant, argued that a punitive cost order against
the respondents would be justified, as the Court
should show its
displeasure in the way that they have conducted this matter. Their
conduct was persistently obstructive in
the circumstances. The
respondents, on the other hand, submitted that each party should be
ordered to pay its own costs.
[43]
The first respondent's conduct as the father of the minor child is
unacceptable. He allowed himself to be manipulated by the
second
respondent who interfered in his and the applicant's affairs thereby
subjecting the minor child to examinations that were
uncalled for,
humiliating, psychologically traumatic and infringed the dignity of
the child. This conduct failed to protect the
best interests of the
child as provided for by s 28 of the Constitution. The respondents
did not withdraw their opposition notwithstanding
the fact that they
were not objecting to prayers 1.1 to 2.1 of the Court Order dated 24
June 2016. Nevertheless, I take into account
that the respondents
were unrepresented and underestimated the gravity of their conduct.
[44]
"Th
e
purpose
of
an award of costs to a successful
litigant
is to indemnify
him/her
for
the
expense
to
which
he/she
has
been
put through
having
been
unjustly compelled
to
initiate
or defend
litigation
"
.
[1]
The
applicant
had
to
approach
court
on
an
urgent
basis
on
24
June
2016
in
order
to
protect the interests of the minor children, especially the minor
daughter,
from
repeated
allegations
of
sexual
abuse,
which
proved
to
be
without
foundation.
[
45]
The award
of
costs is a matter wholly
within
the
discretion of the court
[2]
but this is a
judicial
discretion
and must be exercised on
the
grounds upon which a reasonable person could have come to the
conc
l
usion
arrived at.
[3]
In
my
view,
an
award
of
costs
on
a
party
and
party
scale
is
one
that
I
re
l
uctantly
come
to.
In
the circumstances, I make the following order.
1.
The
Rul
e
Nisi
granted on 24 June 2016 is
hereby confirmed.
2.
The respondents, (Mr AWC and Ms OS) are ordered to pay the costs of
this application on a scale as between
party and party.
BM
PAKATI
JUDGE
On
behalf of the
Plaintiff:
ADV PJ HAYMANS
Instructed
by:
VAN DE WAL
L
INCORPORATED
On
behalf
of the
Defendant:
IN PERSON
[1]
Texas
Co
(SA) Ltd
v
Cape
Town
Municipality
1
926
AD
467
at
488
[2]
Fripp
v Gibbon & Co
1
913
AD 354
[3]
Merber
v Merber
1
948
(
1
)
SA 446 (A)
at
453