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[2016] ZAGPPHC 471
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Burger v Strydom and Another (54112/2015) [2016] ZAGPPHC 471 (19 May 2016)
IN THE HIGH COURT
OF SOUTH AFRICA
(GAUTENG
DIVISION,
PRETORIA)
CASE NO: 54112/2015
DATE:
27 MAY 2016
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In the matter
between:-
BURGER,
EMILEAPPLICANT
And
STRYDOM, PAULA
1
st
RESPONDENT
BURGER, IRENE
2
nd
RESPONDENT
JUDGMENT
A.
APPLICATION
1.
The applicant seeks an order on the following basis:
•terminating the mandate of the first respondent, Ms.
Strydom;
• interdicting her from having contact with the minor children,
Tertius and Karien;
•directing Ms. Strydom to desist from all involvement in respect
of the assessments and investigation concerning the minor
children;
•compelling Ms. Strydom to make all records available to an
expert Dr. Robyn Fasser in relation to the aforesaid investigation.
B.
BACKGROUND
2.
On 12 December 2013, the applicant and the second
respondent had divorced. Due to the acrimonious divorce and the break
up between
the parties, the issue of parental access allocation and
responsibilities had to be investigated.
3.
The
issue emanated particularly on the applicant's part as he felt that
the minor children were being alienated from him. Dr.Duchen
was
appointed to make recommendations on this aspect and her appointment
was recorded in the settlement agreement.
4.
As part of the case management, Dr. Duchen recommended
the appointment
of a
clinical psychologist and a therapist. Marilyn Davis Shulman (Davis
Shulman) was appointed as case manager and Karin Meyer
(Meyer) was
encouraged to conduct psychotherapy with the
children.
5.
In
December 2013, Davis Shulman and Meyer approached the applicant that
accusations were levelled against him concerning his inappropriate
behaviour of a "sexual nature" towards his daughter.
6.
When his daughter complained shortly thereafter of
having "female issues" and not feeling well, the applicant
arranged
for a gynaecologist to examine her. No indications of any
sexual interference were detected by the doctor.
7.
In January 2014 the applicant was again informed of a
further complaint of sexual interference on his part. The nature of
this complaint
was that the applicant had pulled his daughter out of
the bed at night and kicked her in her private parts and such
incident had
occurred in November 2013. The applicant denied these
allegations.
8.
Quite perturbed by these allegations he suggested that
a forensic investigation be conducted into this aspect of abuse.
9.
Davis
Shulman recommended two professionals who in her opinion were capable
of conducting the forensic investigation into this sensitive
matter.
10.
Ms. Strydom was selected by the second respondent. The
applicant confirmed
her appointment, particularly in light of her qualifications as set
out on Linkedin. Her master's degree in the field of sexual
abuse is
what
convinced him that she be appointed.
11.
On
24 April 2014, Ms. Strydom informed the applicant that his conduct
with both children would be suspended and that he was not
able to
have supervised contact with them either.
12.
The
applicant was unsettled with this recommendation, particularly in
light of the way forward suggested by Dr. Duchen and Davis
Schulman;
that alienation from any parent should not be encouraged and moreover
there should at least be supervised contact.
13.
Ms.
Strydom had failed to furnish her report timeously and indicated that
she takes instructions from her "supervisor: and
this was
causing a delay due to her supervisor being ill. This response
made the applicant suspicious.
14.
Hence with the assistance of the applicant's attorney
an investigation was conducted on Ms. Strydom's qualifications. It
was established
that the applicant was misled into believing that she
had a Master's degree. Ms. Strydom had not acquired this
qualification despite
advertising it on Linkedin.
15.
The applicant's attorney thus advised in correspondence
that her mandate is terminated. In
a series of correspondence between the parties, Ms. Strydom was
requested to
inter
alia:
(1)
refrain from having contact with the children; and
(2)
make
available all the documents relating to the investigation.
C.)APPLICANT'S
VERSION
16.
Counsel for the applicant emphasised that the first
respondent has to date offered no firm undertaking to make available
her documents
in respect of the investigation, neither has she
undertaken in writing to refrain from any involvement in this
investigation, either
with the minor children, the applicant or the
second respondent.
17.
Moreover the admissions she made in this application
was contrary to her attitude in the correspondence where she
indicated
inter alia
that:
17.1
she
was willing and prepared to make available copies of the file
contents pertaining to this matter to anyone this Honourable
Court
may direct and
17.2
she accepted the termination of her mandate.
18.
In the aforesaid correspondence 1n 2014, the
applicant's attorney had
informed
her, on numerous occasions that the court will be approached for
relief if she persists in her conduct. The applicant had
no option
but to approach this
court.
THE
RESPONDENT'S
CASE
19.
Essentially the respondent's argument was that the
applicant had no reason to seek relief from this court when the
first respondent
had abided to the requests of the applicant.
20.
Counsel for the respondent proffered
inter alia
the
following argument that:
21.1
her mandate had been terminated on 22 June 2014. She
never disputed or denied this. Neither had she acted or attempted to
act in
terms of the mandate;
21.2
the interdictory relief cannot be sustained. The
relief sought was to restrain her from having contact with the
minor children.
This was "superfluous" since she had no
contact with the children after the said termination of 22 June
2014. Despite
being no threat to the children, the applicant
persisted in launching this application on 13 July 2015 but had it
served only
in September 2015. Consequently the applicant has
neither shown a clear right deserving of protection, nor an
infringement
of such right by Ms. Strydom.
21.3
Insofar as decision from any involvement in relation
to the minor children, it was submitted that Ms. Strydom was
obliged to
report her findings and disclosures made in respect of
the minor child to the SAPS or other relevant authorities whereby
she
could be requested to testify in future proceedings. This would
require her involvement once again.
21.4
In respect of handing over the relevant documentation,
it was submitted that she has prepared to furnish Dr. Fasser with a
copy
of her report. She further undertook to consult with a further
expert pertaining to her findings.
This
court was requested to take cognisance of the fact that
she
could
not be
expected
to
part
with
all
her
materials,
since
she would require same in order to testify in future
proceedings.
21.5
Insofar as the alleged misrepresentation of her
qualifications was concerned, she had no intention of misleading the
applicant.
In order to succeed on this point of misrepresentation,
the requirements of misrepresentation must be met namely that:
• the misrepresentation was made knowingly and made with the
intent to mislead the applicant, and
• that the
applicant was moved by the misrepresentation, acted
upon
it, which was to his prejudice.
21.6
all communication between Ms. Strydom, the other
experts and the applicant was through her standard letterhead. This
letterhead
contains no misrepresentations in respect of her
qualification. Her qualifications thereon appear as BA (MW). Nowhere
on these
letterheads was any mention made of a Master's degree.
F.)
ANALYSIS
AND
FINDINGS
21.
At the hearing, this court expressed its concern as to
the manner in which such a sensitive matter regarding the minor
children
was dealt with. It was emphasised that this matter should
have been dealt with in the best interest of the minor children. This
was certainly not done. The parties could have resolved the issues as
far back as mid-2014.
22.
Cognisance is taken of the fact that the minor children
had been subjected to trauma and undue stress not only during the
marriage,
the break up between the parties and events subsequent
thereto.
23.
Particularly due to the hostility between the parents,
they had to undergo therapy with various professionals so that a
managed
system could be put in place in respect of access to their
parents and the parents' responsibilities to their children.
24.
This court notes that the divorce order of the court
dated 12 December 2013 remains unfulfilled specifically refer to
prayers
2 and 3 thereof which states:
"(2)
Dr. Ronel Duchen is appointed by agreement between the parties to
conduct an
urgent
investigation
and
assessment and to render a report in relation to the allocation of
parental
responsibilities
and
rights...
(3) Both
parties shall take all such steps and do all such things as
are
reasonably and necessary and tender their full co-operation to enable
Dr. Ronel Duchen to conduct her investigation and
compile
her report on an urgent basis."
25.
It must be emphasised since July 2014, the sexual abuse
investigation has been halted. Dr. Fasser has not been able to resume
the
investigations. The minor children have not had an opportunity to
be with their father and the issues regarding parental access
and
responsibilities have not been resolved.
26.
It would not be fair to speculate what the second
respondent's position in this matter is. It is of concern that she
has not at
least filed an affidavit in this matter. This very issue
of parental access was paramount and motivated by the experts working
with the minor children. At the hearing counsel for the respondent
indicated that she abide to the decision of the court.
27.
The
Clinical Psychologist, Davis Shulman had firmly from the onset of her
involvement with the
minor children recommended that
reconnection
and reunification
is
crucial between the father and the minor
children.
She specifically
stated at
Clause
5
.2.
"From
a case management perspective, both parents love their
children
and there are indications that each parent believes their
contribution to the children is the current one. At this juncture
there are major concerns with regard to how to ameliorate and
constructively restore what is clearly a damaged family dynamic that
is a function of the joint cumulative history of the relationship
between Mr. Burger and Mrs.
Burger".
28.
Davis Shulman in
paragraph 6.5
expressed her
disapproval in respect of Ms. Strydom's conduct. She stated:
"It
is most unfortunate that the forensic investigator, although she
was
acting in accordance with her instructions and adhering to her
protocol,
saw
fit to overrule, undermine and at times marginalise the
case
m
anager".
(my
emphasis)
29.
In
paragraph 6. 7 she
s
tates:
"The
ongoing and as yet unresolved forensic process, the parental
conflict
stemming from separation related litigation as well as the existence
of a disorganised attachment between the minor children
and their
father and an obvious attachment with their father and mother,
necessitates
urgent
intervention and psycho-education
...".
30.
On 2 May 2015, before Davis Shulman issued her report,
she, in an email, particularly expressed her dissatisfaction of the
way in
which Ms. Strydom handled the matter.
31.
In this email she states:
"Whilst
I
am
cognisant of the fact that you have no obligation to
follow
protocol in different matters such as this one, and that your
decision to stop contact with immediate effect with the biological
father is part of that protocol,
I
have
very real concerns with regard to the ramifications of this given the
difficulty in establishing clear evidence in this matter
..."
"Contact
with the biological father has been severed since February of this
week with no visits (even supervised) or telephonic
contact happening
at
all. The past few weeks have seen an escalation of emotion in the
children
and from both parents, with some severe consequences."
32.
Counsel for the first respondent submitted that this
application was not necessary since the first respondent had not only
abided
to the termination, the restriction to access of the minor
children as well as agreed to make copies of the documents relating
to the investigation available to the applicant.
33.
I cannot agree with this argument. Up until July 2015,
just before this application was launched, Ms. Strydom in her letter
dated
7 July 2015, stated:
"2. Hierdie
kantoor respekteer u klient se reg om nie voort te gaan met die
kollaterale inhoud
3.
Hierdie kantoor maak dit verder duidelik dat die
mandaat wat deur die ondersoekbeampte van die SAPD getermineer kan
word en/of
hofbevel waar
beide ouers toestemming
verleen.
4.
Hierdie
kantoor gaan steeds voort met die ondersoekproses."
In this letter, on
the one hand,Ms. Strydom agrees that she will not
proceed
in investigating the collateral issues but in the following breath
she states
that
her mandate can only be terminated by the SAPS or a court order.This
is further contrary to her attitude in this application.
In the
opposing papers she proffers a version that her mandate has been
terminated and she has had no access to the minor
children.
34.
This court finds that there has been no
bona fide
on
her part, specifically in failing to take heed of the criticism
levelled against her as a professional, particularly from Davis
Shulman and Ms. Meyer.
35.
Furthermore
the issue here does not solely revolve on the disclosures regarding
her professional qualifications. In considering
this matter in its
context and the
circumstances Ms. Strydom was in no uncertain terms informed of the
termination of her mandate. Although the termination
was
sparked off in respect of her professional qualifications, a further
crucial reason was the manner in which she worked on the
matter,
which was
in
conflict with Dr. D. Duchen's
recommendations.
36.
As
a professional, having the best interests of the children in mind,
she should have accepted the termination without contesting
it.
Moreover it was necessary to furnish the documents regarding
investigation. Dr. Fasser should have been furnished with same
to
resume the investigation.
37.
A further point which must be highlighted is the fact
that at the hearing, counsel for the respondent conceded that copies
of same
could be made available. However, in the correspondence and
the papers, the court notes that she was only willing to make the
report
available.
38.
This was despite Davis Shulman as the case manager
requested all the documentation. In Davis Shulman's report, she state
at paragraph
7.2:
"7.2 It
is recommended that Paula Strydom hand over her material
and
documents (from the Burger matter investigation) to Dr. Robyn Fasser,
who is a clinical psychologist with extensive expertise
in complex
cases of this nature..."
39.
Since
7 July 2015, and upon filing her affidavit in October 2015, by Ms.
Strydom failed to demonstrate any
bona fide
on her part,
particularly in
ensuring
that Dr. Fasser be furnished with at least copies of
documents
pertaining to the
investigation.
F.)
CONCLUSION:
On the conspectus
of the evidence before me, this court finds that
the
application was necessary. Moreover the relief sought was justified
on the basis set out
above.
G.) ORDER:
40.
In
the premises the following order is made:
(1)
The termination of the mandate of the first respondent
is confirmed.
(2)
The first respondent is directed to desist from all
further involvement, investigation and/or assessments in relation to
the minor
children, whether directly or indirectly, except as may be
required by the case manager, Marilyn Davis Shulman.
The first respondent is compelled to make available copies of
all books, notes, recordings, materials and documentation to Dr.
Robyn Fasser within 7 days of the granting of this order. Such
copies should be made available for collection by courier, which
services will be arranged via the applicant's attorney.
(4)
Dr. Robyn Fasser is directed to commence with the
investigation in issue upon receipt of the aforesaid documents.
(5)
Costs of suit against the first respondent.
H
KOOVERJIE
ACTING JUDGE
OF THE HIGH COURT
DATE OF
HEARING
:
19
MAY 2016
DATE OF
JUDGMENT: 27 MAY
2016
Attorney for
the applicant: Martson & Taljaard
Attorneys
Counsel for
the applicant: Adv. L
Segal
Attorney for
the first respondent: Jay Inc.
Attorneys
Counsel for
the first respondent: Adv. J J Greef