Potgieter v Potgieter (215/06) [2007] ZASCA 47; [2007] 3 All SA 9 (SCA); 2007 (5) SA 94 (SCA) (30 March 2007)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2007
>>
[2007] ZASCA 47
|

|

Potgieter v Potgieter (215/06) [2007] ZASCA 47; [2007] 3 All SA 9 (SCA); 2007 (5) SA 94 (SCA) (30 March 2007)

Links to summary

SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
THE
SUPREME COURT OF APPEAL
OF SOUTH AFRICA
CASE
NO: 215/06
Reportable
In
the matter between
J.
F. potgieter
Appellant
and
I.
potgieter
Respondent
Coram
:
Farlam,
Cameron et
Van
Heerden JJA, Hancke et Theron AJJA
Heard: 22
March 2007
Delivered: 30
March 2007
Summary:
Divorce
– custody of minor children – best interests of child
paramount consideration – factual findings made by trial
court
relating to parties’ parental capacity – approach of appeal
court to such factual findings – expert evidence
–
principles relevant to evaluation of
Neutral
citation: This judgment may be referred to as
Potgieter v
Potgieter
[2007] SCA 47 (RSA)
JUDGMENT
VAN
HEERDEN JA:
The
main issue in this appeal is the custody of two minor children, E.
and J. Potgieter, now aged 15 and 11 years, respectively.
The
appellant, Dr Potgieter, is the father of the children and the
respondent, Mrs Potgieter, is their mother. The parties were

divorced on 26 October 2004 by order of the Port Elizabeth High
Court (Chetty J) and custody of the children was awarded to Mrs

Potgieter, subject to reasonable access by Dr Potgieter as specified
in the court order. Dr Potgieter was also ordered to pay

maintenance in respect of the children, as well as rehabilitative
maintenance for Mrs Potgieter in the amount of R4650 per month
for
12 months.
Chetty
J refused Dr Potgieter’s application for leave to appeal against
the custody order and the costs order made against him,
but this
Court subsequently granted leave to appeal to the Full Court of the
Eastern Cape Provincial Division. On 13 January
2006, the Full
Court (Erasmus J, with whom Maqubela AJ and Matthee AJ concurred)
dismissed the appeal with costs. Dr Potgieter
now appeals further
with the special leave of this court. The appeal is directed
against the custody order, the order for rehabilitative
maintenance
in favour of Mrs Potgieter and the costs orders granted against Dr
Potgieter.
Dr
Potgieter instituted divorce proceedings in February 2003, claiming
custody of the two children, then aged ten years and 11
months and
seven years and eight months, respectively. Mrs Potgieter opposed
the divorce action and counterclaimed for (inter
alia) custody of
the children.
At
the instance of Dr Potgieter, the trial court directed the family
advocate (Ms René Claassen) to conduct an enquiry in terms
of
section 4(1) of the Mediation in Certain Divorce Matters Act 24 of
1987. She appointed Ms Helena Retief, a social worker
and family
counsellor, to conduct an investigation into the interests of the
children as regards custody and access, and also
engaged the
services of Dr Estelle de Wit, a clinical psychologist, to undertake
a psychological assessment of the children.
In their written
reports and in their testimony during the trial, both Ms Retief and
Dr de Wit recommended that custody of the
children be awarded to Dr
Potgieter, Mrs Potgieter to have restricted rights of access. On
the basis of these reports, this
was also the recommendation made by
the family advocate.
At
the insistence of Mrs Potgieter, a report was also obtained from a
second clinical psychologist, Ms Carol Vogel. In this report,
Ms
Vogel agreed with the recommendations of Dr de Wit and Ms Retief in
respect of custody and access. She was thereafter called
by Dr
Potgieter as his first witness during the trial. Like Dr de Wit, Ms
Vogel had administered a psychometric test known as
the Minnesota
Multiphasic Personality Inventory-2 (MMPI-2) to both parties. Based
on the results of these tests, each clinical
psychologist diagnosed
Mrs Potgieter to be suffering from a borderline personality disorder
manifesting itself in, amongst other
things, impulsivity; a pattern
of unstable and intense interpersonal relationships; abuse of
prescription drugs; emotional instability
and mood swings.
Dr
Potgieter also called a psychiatrist, Dr Peter Crafford, to testify
on his behalf at the trial. Dr Crafford had treated Mrs
Potgieter
for anxiety and depression over a period of about five months some
six years before the trial. He had also diagnosed
her as suffering
from ‘marked borderline personality traits’, with ‘generalised
personality disorder’, ‘panic disorder’
and ‘recurrent major
depressive disorder’. According to Dr Crafford, although Mrs
Potgieter had initially responded well
to electro-convulsive
therapy, the anti-depressants prescribed for her at that stage did
not succeed in keeping her depression
at bay. Dr Crafford opined
that Mrs Potgieter had serious problems coping with reality and that
her insight into her problems
was very limited. He was of the view
that she did not have the strength of will to persevere with
psychiatric treatment, nor
was she motivated to undergo individual
psychotherapy. He testified that Mrs Potgieter’s ‘generalised
anxiety disorder’
was a lifelong condition and that, although it
could be treated, was not curable. It was characterised by
excessive uncontrollable
worry; mood instability; inability to cope
with change; the avoidance of stressors and the formation of
inappropriately intense
and unstable interpersonal relationships.
According to Dr Crafford, Mrs Potgieter’s ‘long-term prognosis’
was not good.
It
is important to note that Dr de Wit and Ms Retief premised their
recommendations to a large extent on their ‘factual finding’

that the parties’ housekeeper, Ms Maria Zama, had been the
children’s primary caregiver for a number of years preceding the

trial. I will return to this aspect in due course. So too, the
family advocate accepted as a fact in her report the allegation
that
Ms Zama, and not Mrs Potgieter, was the children’s primary
caregiver.
The
family advocate also called a third clinical psychologist, Mr Ian
Meyer, to testify at the trial. Mr Meyer had been instructed
by Mrs
Potgieter’s attorneys during the course of the trial to conduct an
investigation and compile a report, focussing in
his assessment on
the parties’ respective parental capacity. In accordance with his
instructions, he did not reassess the
children for fear of
traumatising them by subjecting them to a further distressing
psychological process. Mr Meyer was of the
view that Dr Potgieter
showed greater parental capacity than Mrs Potgieter and that custody
of the children should be awarded
to Dr Potgieter. His opinion was
derived largely from his conclusion that, given her ‘ego
strength’, psychiatric history
and previous style of coping while
she was a full-time mother and housewife with considerable domestic
support, she might well
not be able to cope with the stress of being
a single parent and of managing a household, a job and finances.
Chetty
J was unimpressed with the various expert witnesses. He described
Ms Vogel as a ‘poor witness’ who was evasive, unable
to answer
questions directly and reluctant to make obvious concessions –
‘
The
defensive attitude which she displayed towards her report compounded
the problems she experienced under cross-examination and
contributed
markedly to her unease in the witness box . . . it became obvious
that her recommendation was inextricably bound to
her diagnosis. She
was reluctant to concede that even if the factual substratum upon
which her diagnosis rested was different
to that which she accepted
her conclusion could be different . . .Cross-examination soon
established the spurious nature of the
allegations which she regarded
as fact. Those allegations emanated from the [appellant] and those
loyal to him which she unreservedly
accepted as factually correct.’
As
Erasmus J pointed out in his judgment in the Full Court, it was put
to Ms Vogel in cross-examination that her strenuous attempts
to
‘defend’ her position and her unwillingness to make any
concessions in favour of Mrs Potgieter indicated her lack of
objectivity. Her answer was as follows:
'I
cannot be neutral, I have decided in my report that Dr Potgieter is
the better custodian and maybe I am being too defensive of
my report.
I have written something which took a long time and [which] I am
proud of and I would like to explain why I came to
these findings and
I see that they are in line with other people’s findings, so I know
that I am not – it is not just a magical
thumbsuck, it is based on
as much evidence and quantitative and qualitative measurements that I
could find.’
Erasmus
J commented, correctly in my view, that this was indeed an
unfortunate attitude for an expert whose task was to assist the
court
in an objective manner.
The
trial judge was also critical of Dr de Wit’s evidence for much the
same reasons. As far as Ms Retief was concerned, Chetty
J correctly
observed that her report and her testimony made it abundantly clear
that she accepted the allegations contained in
Dr de Wit’s report
as factually correct; that she relied heavily on Dr de Wit’s
findings, and that her recommendations were
influenced by Dr de Wit
to an appreciable degree. As the family advocate’s opinion was in
turn based almost exclusively on
the recommendations in the reports
submitted to her by Ms Retief and Dr de Wit, as well as on the
allegations in the pleadings
and in the affidavits filed in the Rule
43 application, Chetty J did not derive any assistance from her
recommendation either.
As
stated by the trial judge at the outset of his judgment, the
fundamental principle consistently applied by South African courts

in custody disputes, as indeed in all matters concerning children,
is now entrenched in section 28(2) of the Constitution. This

section provides that ‘[a] child’s best interests are of
paramount importance in every matter concerning the child’. (See

further
Jackson v Jackson
2002 (2) SA 303
(SCA) at 307I-308A,
F v F
2006 (3) SA 42
(SCA) para 8 and also
Lubbe v Du
Plessis
2001 (4) SA 57
(C) at 66B-67G.) It is not necessary for
the purposes of this judgment to repeat the non-exhaustive, albeit
comprehensive, ‘checklist’
of criteria relevant to the
application of the best interests standard, set out in
McCall v
McCall
1994 (3) SA 201
(C) along the lines of the checklist of
relevant factors recommended by the English Law Commission in its
Review of Child Law, Guardianship and Custody
Law Com No 172
(1988) paras 3.17 et seq. These criteria – and quite a few more –
have now been encapsulated in
section 7(1)
of the
Children’s Act
38 of 2005
which was signed into law by the President on 8 June
2006, but which is not yet in operation.
Determining
what custody arrangement will serve the best interests of the
children in any particular case involves the High Court
making a
value judgment, based on its findings of fact, in the exercise of
its inherent jurisdiction as the upper guardian of
minor children.
This being so, an appeal court will not easily second-guess those
findings and conclusions. This is especially
so in a case like the
present, where the trial court’s conclusion – that the best
interests of the children ‘demanded’
that custody be awarded to
Mrs Potgieter – was based to a large extent on favourable
credibility findings in favour of Mrs
Potgieter and adverse
credibility findings against Dr Potgieter and the expert witnesses.
(See generally
R v Dhlumayo
1948 (2) SA 677
(A) and
Santam
Bpk v Biddulph
[2004] 2 All SA 23
(SCA) para 5; but cf
Jackson
v Jackson
supra at 325B-C.) This was in fact the approach the
Full Court followed on appeal to it.
Counsel
for Dr Potgieter contended, however, that both the trial court and
the Full Court had misdirected themselves in their
assessment of the
expert evidence. Thus, counsel argued, the material facts on which
both Ms Vogel and Dr de Wit based their
opinions had been proved and
Chetty J’s criticism of their evidence was accordingly not
justified. According to counsel, the
learned judge had erred by
finding that these two expert witnesses had unreservedly and
uncritically accepted the version of
events proffered by Dr
Potgieter and those collateral sources loyal to him. This finding
did not take into proper consideration
the information gleaned from
the collateral sources consulted by the experts and the results of
the psychometric tests administered
by them. Counsel submitted that
the trial judge had incorrectly allowed himself to be influenced by
statements put to the expert
witnesses by counsel for Mrs Potgieter
in cross-examination without any factual basis having been laid for
such statements and
without any evidence being adduced either by or
on behalf of Mrs Potgieter to support such statements.
The
principles applicable to the admissibility and evaluation of expert
opinion evidence are well-established (see, for example,
DT
Zeffertt, AP Paizes & A St Q Skeen
The
South African Law of Evidence
(2003)
p 299 ff; PJ Schwikkard & SE van der Merwe
Principles
of Evidence
2
ed (2002) p 89 ff and the cases cited by these writers).
As
Chetty J pointed out –
‘
It
is clear . . .that expert opinion is not the mere conjecture, surmise
or speculation of the expert: it is his judgment in a matter
of fact.
It is equally clear, that whilst in many cases a court needs and
benefits from an expert’s opinion, the expert witness
should not
usurp the function of the court.’
(On
the proper role and function of expert witnesses in disputes
involving children and families, see further
Stock
v Stock
1981
(3) SA 1280
(A) at 1296E-F and
Jackson
v Jackson
supra
at 311F-G, 323E-324C and 327G-333I.)
The
trial judge did not question the specialised knowledge, training or
experience of the various expert witnesses, but identified
his main
problem with such experts as being ‘[their] inability . . .to draw
a line between matters of fact and matters of value
thereby
distorting the judicial process by acting like judges.’ For this
reason, he considered their evidence to have ‘no
real probative
value’.
This
was a somewhat unusual case in that, although both Ms Vogel and Mr
Meyer were initially engaged by Mrs Potgieter to investigate
the
issue of custody, both ultimately recommended that custody of the
children be awarded to Dr Potgieter. It thus cannot be
said that
either of them was partisan in the sense that he or she
‘consistently asserted the cause of the party’ who had
engaged
him or her (see
Stock
v Stock
supra
at 1296F). While Chetty J was correct in his criticism of Ms
Vogel’s evidence, his treatment of Mr Meyer’s report and
the
testimony given by him can perhaps be criticised as being unduly
cursory. The same can be said of the judgment of the Full
Court in
this regard.
Chetty
J disregarded Dr Crafford’s evidence on the ground that, as he had
last had contact with Mrs Potgieter some six years
before the trial,
he was ‘unable to express any meaningful opinion on her present
day condition’. However, Dr Crafford testified
that the
generalised anxiety disorder which he had diagnosed when treating
Mrs Potgieter was an incurable lifelong condition
and that, without
ongoing psychiatric and psychotherapeutic treatment, the long-term
prognosis for Mrs Potgieter was not good.
Chetty J’s dismissal of
his evidence as having little probative value was therefore, in my
view, not entirely justified.
In this regard, Mr Meyer also
testified that, while the borderline personality disorder from
which, in his opinion, Mrs Potgieter
suffers can be ‘contained and
assisted’ with (inter alia) medication, there is no cure for this
kind of disorder.
These
shortcomings notwithstanding, I do not think that either the trial
judge or the Full Court misdirected themselves in the
assessment of
the expert evidence as a whole. The main factual findings made by
the trial court were that Mrs Potgieter had
looked after the
children as their primary caregiver all their lives; that there was
no real evidence that they had suffered
any harm in her care; that
despite the trauma and stress caused by the protracted divorce
proceedings, during which the parties
continued to live in the same
house with the children, the children were doing very well at
school; that Mrs Potgieter dearly
loved the children who
reciprocated this love; and that, while E. had indicated no real
preference as to which parent she wanted
to live with after the
divorce, J. had expressed a clear desire to live with Mrs Potgieter.
The
experts, by contrast, did not base their opinions on these facts and
were by and large not prepared to reconsider their opinions
when
these facts were put to them during the course of their testimony.
In the words of Erasmus J:
‘
Die
problem met die deskundiges se getuienis was nie ’n gebrek aan
kundigheid in hul vakgebied nie, maar in hul skynbaar onkritiese

aanvaarding van die weergawe van die appellant en sy
verwysingsbronne.’
The
most telling example of this failing on the part of the expert
witnesses was the acceptance by Dr de Wit, Ms Retief and, it
would
appear, also Mr Meyer of allegations by Dr Potgieter and by Ms Zama
that the latter was the children’s primary caregiver
during a
period of several years preceding the trial. Ms Zama’s evidence
did not, however, bear out these allegations. While
her
evidence-in-chief portrayed Mrs Potgieter as an uncaring, neglectful
and bullying mother prone to outbursts of rage and physical
abuse
directed against both Dr Potgieter and her children, her evidence
under cross-examination revealed quite a different picture.
Ms Zama
conceded, albeit somewhat grudgingly, that her function in the
parties’ household was that of a domestic worker who
left at half
past four each afternoon, and that Mrs Potgieter was the person who
primarily cared for the children on a day-to-day
basis. Ms Zama
went so far as to concede that Mrs Potgieter, with whom she clearly
had a difficult and somewhat turbulent relationship,
was in fact ‘’n
goeie ma’.
The
Full Court concluded that Mrs Potgieter clearly suffers from
personality problems in that she is impulsive, unstable, somewhat

inflexible in her personal relationships and prone to confrontation.
She herself conceded that she had difficulties in managing
her
finances (one of the major complaints directed against her by Dr
Potgieter). However, it was common cause that, for some
years
preceding the trial, she had managed to keep her depression, which
had in the past led to several suicide attempts, under
control with
medication. Moreover, it must be remembered that many of her
problems manifested themselves during the parties’
increasingly
stormy marriage. Particularly in the relatively lengthy period
leading up to the trial, both parties were subjected
to the enormous
strain of living under the same roof while bitterly estranged from
each other and in constant conflict. There
would obviously be new
stresses on Mrs Potgieter in her life as a divorcée and single
parent, but the trial judge and the Full
Court were of the view that
neither her personality problems nor these new stresses would impact
on her parenting ability to
such an extent that it would not be in
the best interests of the children to continue being cared for by
her, albeit while they
maintained the close relationship they have
with Dr Potgieter.
I
do not believe that either court misdirected itself in this regard.
In determining what custody arrangement will best serve
the
children’s interests in a case such as the present, a court is not
looking for the ‘perfect parent’ – doubtless there
is no such
being. The court’s quest is to find what has been called ‘the
least detrimental available alternative for safeguarding
the child’s
growth and development’. (See Joseph Goldstein, Anna Freud &
Albert J Solnit
Beyond
the Best Interests of the Child
(1973)
p 53, as cited in
Boberg’s
Law of Persons and the Family
2
ed (1999) p 528-529 n 117.)
In
concluding that maternal deprivation would ‘inevitably have
adverse consequences for [the children’s] development’, Chetty
J
cited with ‘wholehearted’ approval the following dictum of
Broome J in
Dunsterville
v Dunsterville
1946
NPD 594
(at 597):
‘
Experience
goes to show that a child needs both a father and a mother, and that,
if he grows up without either, he will, to some
extent, be
psychologically handicapped. But the maternal link is forged earlier
in the child’s life than the paternal, and if
not forged early may
never be forged at all. The psychological need of a father, on the
other hand, only arises later. It seems
to me that if the father is
awarded the custody of these young children they will in all
probability, notwithstanding the loving
care which they will
undoubtedly receive from their paternal grandmother, grow up as
motherless children, with all the attendant
psychological
disadvantages.’
Broome
J went on to state that –
‘
If,
on the other hand, the mother is awarded their custody, at any rate
during their years of infancy, they will not necessarily
grow up as
fatherless children, for the relationship between a father and his
young children is never one of continuous intimacy,
but is
necessarily intermittent.’
In
more recent cases, the value systems and societal beliefs
underpinning the ‘maternal preference’ or ‘tender years’

principle have been challenged and courts have emphasised that
parenting is a gender-neutral function and that the assumption
that
a mother is necessarily in a better position to care for a child
than the father belongs to a past era. (See, for example,
Van
der Linde v Van der Linde
1996 (3) SA 509
(O);
Van Pletzen v
Van Pletzen
1998 (4) SA 95
(O);
Ex parte Critchfield
[1999]
1 All SA 319
(W) and the other cases referred to by LI Schäfer
‘Young Persons’ in Brigitte Clark (ed)
Family Law Service
(Issue 45) para E42. See also
Boberg’s Law of Persons and
the Family
2 ed (1999) p 534-538 and the authorities there
cited.) Chetty J’s reliance on the abovequoted dictum of Broome J
in the
Dunsterville
case must therefore be seen in the light
of these more recent developments. The later approach, it needs be
added, is in any
event consistent with the equality principle
enshrined in
section 9
of our Constitution.
It
should also be noted that the minor children have been in Mrs
Potgieter’s custody (without the daily presence of Dr Potgieter)

for nearly two and a half years since at least October 2004. If Dr
Potgieter had, at any time during that period, formed the
view that
the children were suffering harm of any kind by being in Mrs
Potgieter’s custody or that circumstances had changed
to such an
extent that there was ‘sufficient reason’ for the custody order
Chetty J granted to be rescinded or varied, he
could have applied to
the High Court in terms of
section 8(1)
of the
Divorce Act 70 of
1979
. That option obviously remains open to him.
As
regards Dr Potgieter’s appeal against the order by Chetty J that
he should pay rehabilitative maintenance to Mrs Potgieter
in the
amount of R4650 per month for a period of 12 months, there is ample
evidence to show that Mrs Potgieter required such
rehabilitative
maintenance and that Dr Potgieter was able to afford it. Although
counsel for Dr Potgieter submitted that the
period of payment of
such maintenance should be reduced to three or four months, he did
not point to anything in the evidence
that indicated that Chetty J
had erred in his determination of either the amount or the period of
payment. In my view, there
was no such error.
Finally,
counsel for Dr Potgieter submitted that, even if the appeal on the
merits were to be dismissed, this Court should make
no costs order
on appeal and should in addition set aside the cost orders made
against Dr Potgieter by the trial court and by
the Full Court so
that each party bears his or her own costs. In the light of, inter
alia, the adverse credibility findings
made by the trial court
against Dr Potgieter, I am of the view that there is no reason to
interfere with the cost orders made
by the two previous courts and
that Dr Potgieter must be ordered to pay Mrs Potgieter’s costs in
this Court. I do not, however,
believe that it was necessary for
Mrs Potgieter to be represented by two counsel in this appeal:
indeed, counsel for Mrs Potgieter
did not ask for the costs of two
counsel.
In
the circumstances, the appeal is dismissed with costs.
B J VAN
HEERDEN
JUDGE OF APPEAL
CONCUR:
FARLAM
JA
CAMERON
JA
HANCKE
AJA
THERON
AJA