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[2015] ZANCHC 4
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HJC and Another v OV and Another (2039/13) [2015] ZANCHC 4 (27 February 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
[NORTHERN
CAPE HIGH COURT, DIVISION, KIMBERLEY]
Case
No: 2039/13
DATE:
27 FEBRUARY 2015
In
the matter between:
HJC
..........................................................................................................................
FIRST
APPLICANT
AC
.......................................................................................................................
SECOND
APPLICANT
AND
OV
........................................................................................................................
FIRST
RESPONDENT
LS
....................................................................................................................
SECOND
RESPONDENT
CORAM:
LEVER AJ
JUDGMENT
Lever
AJ
1. The applicants
seek relief, both in their personal and in their representative
capacities on behalf of their two minor children
“F”, a
boy who was 7 years old at the material time and “A”, a
girl who was 6 years old at the material
time (“the children”).
2. Applicants
seek an order against the first respondent, a registered public
school and the second respondent, its former principal.
The second
respondent was the principal of the first respondent at the material
time.
3. The Order
sought against the said respondents is as follows:
“
1. Dat die
Respondente gelas word om die identiteit van die klaer/klaers en wie
beweer het dat die Applikante se kinders moontlik
seksueel misbruik
word (soos verwys in aanhangsel “F” hiertoe) aan die
Applikante te openbaar en te verskaf, alternatiewelik
sodanige
besonderhede by die Griffier van hierdie Hof in te dien binne 7
(sewe) dae na datum van hierdie bevel, waarna die besonderhede
aan
die applikante beskikbaar gestel moet word deur die Griffier.
2. Dat die Tweede
Respondent die koste van hierdie aansoek betaal, alternatiewelik
indien Eerste Respondent die aansoek opponeer,
beide Respondente
gelas word om die koste te betaal.”
4. The applicants
seek final relief by way of a mandamus to order the respondents to
reveal the identity or identities of the informant
or informants who
reported to the second respondent the possible sexual abuse of the
applicants’ two children referred to
above.
5. The first
respondent filed a notice to abide the decision of the court. In
earlier correspondence the first respondent’s
attorney
indicated that the first respondent did not know the identity of the
informant/s and that the school held no record of
the informant/s
identity.
6. The second
respondent filed a notice of opposition. In the first answering
affidavit which she filed she requested that the matter
should be
heard
in camera,
because there were minor children
involved. Furthermore, that from the allegations made by the
applicants, that the matter should
be referred to oral evidence and
that the second applicant should be subject to cross-examination.
From the sensitive nature of
the application second respondent
requested that she not be compelled to deal with the substantive
contentions of the applicants
and that the matter be referred to a
judge in chambers for directions on whether the matter should proceed
in camera
and be referred to oral evidence.
7. The matter
then came before my sister Williams J (in chambers), the parties and
their legal representatives were instructed to
have a round table
conference and to file a report on the results of such conference. No
formal report had been filed, but the
parties representatives
informed me that the only thing that the parties could agree on was
that the matter be heard
in camera
. Subsequent to this
agreement the second respondent filed a substantive answering
affidavit to the applicants’ founding papers
on the basis that
she had been informed by her legal representatives that on the
strength of the said agreement there was no longer
a substantial
reason for her not to do so.
8. The applicants
did not file a reply to either of the second respondent’s
answering affidavits.
9. In summary,
the applicants’ version in their founding affidavits, is that
during October 2012 the second respondent visited
the second
applicant at the applicants’ home. During that visit second
respondent informed second applicant that two persons
had reported to
her that the applicants’ son “F” raped his younger
sister “A” every night. Furthermore,
that the second
applicant was present when this occurred and did not intervene.
Second applicant requested that the identity of
the persons who made
the reports be disclosed to her. Second respondent refused to
disclose the identities of the persons who made
the said report.
Second respondent informed second applicant that she and the children
must see a social worker in Kimberley on
the 6
th
December
2012. The second applicant accepted the second respondent’s
instructions and second applicant and the children saw
a social
worker and a counselling psychologist for assessment. Various reports
are annexed to the founding papers.
10. Applicants
contend that the allegations were not only baseless, but were
extremely upsetting to both of them. By virtue thereof
the children
were exposed to sensitive examinations, enquiries and conversations;
that there is no question of the children being
sexually abused; that
the allegations made against second applicant and the children are
defamatory and that they were made with
the intention to defame them;
and that it is in the interests of the second applicant and the
children that such allegations be
stopped.
11. In her
personal capacity the second applicant finds the allegation that she
was present during the alleged incidents and does
nothing to stop
them disturbing. Applicants’ maintain that they do not know the
source of these allegations, but contend
that they have become
generally known in their hometown. They allege that the effect on the
children is that they have become isolated
and that they cannot go
and play with any other children. Applicants’ also state that
they have their suspicions that the
second respondent may simply have
sucked these false stories out of her thumb and spread them around.
Although it is not set out
explicitly in the applicants’
founding affidavits, it is contended on applicants’ behalf that
it is only the person
who made the report to second respondent that
could have spread these stories about. Obviously, this contention is
at odds with
the applicants’ fears that second respondent
fabricated the story.
12. In summary
the second respondent’s version is that she did indeed visit
the second applicant at her home during October
2012. She places it
on record that the person who made the report to her never alleged
that applicants’ children were possibly
being sexually abused.
The complaint was that there was possibly inappropriate sexual
conduct between the children, a brother and
a sister.
13. Second
respondent denies ever telling second applicant that two persons had
made the relevant report to her. She states that
she told second
applicant that she was informed by the informant that at some point
the second applicant made the following comment:
“
Julle
verstaan nie, F… ‘rape’ sy sussie elke aand.”
Second respondent also denies ever saying to second applicant that
she (second applicant) is alleged to be present during these
incidents and does nothing to stop them. Second respondent states
that she visited second applicant twice at the applicants’
home. That it was during the second visit that she arranged the
appointments with second applicant to see a social worker in
Kimberley
and a consulting psychologist. Second applicant kept the
appointment with the consulting psychologist, but did not keep the
appointment
with the social worker in Kimberley. Instead second
applicant went to see a social worker in Bloemfontein, who provided a
report
which will be referred to later.
14. Second
respondent also states that the informant made the report in question
in confidence and by virtue of second respondent’s
position as
the school principal at the relevant time. Second respondent also
submits that she acted upon that report in a reasonable
manner as
would be required of any responsible school principal.
15. Second
respondent submits that she had a duty to follow up on the report and
she did not believe that she could simply ignore
the report that had
been made to her. She submits she acted correctly and in a
bona
fide
manner when she consulted social workers from another
town to guide her through this process. Second respondent states that
she
was advised to report the matter to the police, but because she
was unsure of whether the information she received disclosed sexual
abuse of the children she decided to have professional persons assess
the situation. That is why she approached the second applicant
with a
request to consult the relevant professionals as set out above. Her
motive in choosing this course of action was to protect
the children
and the family.
16. Second
respondent denies the contention that in providing the report the
informant defamed the applicants or the children. Second
respondent
submits that the informant acted professionally. That she was not
simply accosted in the street with a rumour but that
the informant
made an appointment to see her in her office. That the report was
made by the informant in the second respondent’s
office behind
a closed door. In second respondent’s opinion the informant
acted in the best interests of the children and
that the informant
had expressed a deep concern for the welfare of the children.
17. Second
respondent states that she never defamed anybody in this process and
that save for discussing the matter with two social
workers who
guided her through this process she never discussed the matter with
anybody else outside those involved. Second respondent
states that
while she was in the applicants’ house to discuss the matter
with her, second applicant phoned the first applicant
(her husband)
and informed him of the matter. While second respondent was still
present, second applicant received a text message
from her Minister
of religion and further second applicant called an employee who was
in the house and told such employee the whole
story.
18. At the
commencement of argument in this matter Counsel for the second
respondent moved an application that the matter proceed
in
camera
. Having regard to the fact that the children involved
are very young, as well as the nature of the allegations involving
such children,
the agreement of the parties that the matter should
proceed
in camera
and also the circumstances in which
the second respondent filed her substantive answering affidavit to
the founding affidavit filed
by the applicants, I ordered that the
matter should proceed
in camera
.
19.
In the
matter of
A
v R KINDER - EN KINDERSORGVERENIGING
[1]
Southwood
J dealt with an application for similar relief to that which present
applicants seek. After considering the relevant authorities
Southwood
J concluded that the court will only order the disclosure of the
identity of the person who made the report, in circumstances
where
the applicant has established that the person who made the report
acted as a principal and the person to whom such report
was made
acted as the agent of such principal and that the applicant intended
to sue such principal.
[2]
In
other words there are two requirements to be established by the
applicants, firstly that the person receiving the report received
it
as the agent of the person who made such report (the principal) and
secondly, that the applicants intended to sue the principal.
20.
It is
clear from the judgment of Southwood J that that there are equally
compelling arguments based on public policy grounds why
such relief
would not be lightly granted.
[3]
In short these are, children need to be protected from abuse,
molestation and neglect. Whilst an undertaking not to disclose the
identity of an informant is not a binding agreement, however on
public policy grounds, it ought to be enforced.
[4]
Southwood J concludes that even if all of the requirements for the
relief sought are established, the court would still have a
discretion as to whether it orders disclosure or not.
[5]
Southwood J accepts that where the person who made the report acts
maliciously, such person will not enjoy the protection of the
agreement not to disclose or the discretion of the court not to order
such disclosure.
[6]
21.
It is
one of the core values of our society that children must be
protected. In this context children are protected by the provisions
of section 28(1)(d) of the Constitution
[7]
.
Similarly, section 110 of the Children’s Act
[8]
also evidences the value placed on the protection of children by our
society. In this context where a report is made
bona
fide
and not frivolously or maliciously a court will generally not order
the disclosure of the identity of the person who made the report.
To
do otherwise would make it almost impossible to implement the
protections set out in section 110 of the Children’s Act
or to
give effect to the value of protecting children enshrined in the
Constitution, because people will simply look the other
way if they
fear being put to the time, trouble and expense of defending
themselves in court.
22. On the facts
of the present matter I think there is little value to be gained from
trying to analyse the available evidence
to determine if second
respondent acted as the informant’s agent or not when the
report was made to her. In my view this
matter falls to be decided on
whether or not this court exercises the discretion it undoubtedly has
in favour of the applicants
to order disclosure or in favour of
second respondent to dismiss the present application.
23. It must be
remembered that the applicant seeks final relief in the present
application. In the circumstances, the general rule
as it has been
re-stated in the Plascon-Evans case is applicable:
“…
It
is correct that, where in proceedings on notice of motion disputes of
fact have arisen on the affidavits, a final order, whether
it be an
interdict or some other form of relief, may be granted if those facts
averred in the applicant’s affidavits which
have been admitted
by the respondent, together with the facts alleged by the respondent,
justify such an order.”
[9]
24. As can be
seen from the summaries of the respective versions put by the
applicants and the second respondent, there are important
disputes of
fact. From the papers filed in this matter, it cannot be said that
the version put up by the second respondent is inherently
improbable.
Applicants’ have chosen not to file a reply to second
respondent’s substantive affidavit. In these circumstances
I
have to accept that applicants cannot dispute the second respondent’s
version.
25. On second
respondent’s version, it was reported to the second respondent
by the informant, that at some point second applicant
stated: “Julle
verstaan nie, F… ‘rape’ sy sussie elke aand.”
Applicants’ have not disputed
this version. It is implicit in
this version that the person who made the report to second respondent
was present and heard the
second applicant make this statement. It is
also implicit in this version by virtue of the fact that the plural
is used, that there
was more than one person present when the second
applicant made this statement. The fact that the second applicant
made this statement
publicly weighs heavily with me in considering
this court’s discretion not to order the disclosure of
the identity
of the person who made the report. Furthermore, when
second respondent discussed the matter with the second applicant,
second applicant
called an employee in and related the whole story to
the employee. Applicants’ have also not disputed this
contention. Second
applicant had no reason to disclose the report to
her employee. The said employee or any of the other persons present
when second
applicant made the statement set out above, aside from
the person who made the report to second respondent could be
responsible
for the stories circulating in the community.
26. In exercising
this court’s discretion, I must also place in the scales, the
conduct of the person who made the report
as well as the conduct of
the second respondent. It cannot be disputed that the person who made
the report did so in circumstances
where he/she made an appointment
to see the second respondent. At the material time the second
respondent was the principal of
the school the children attended. In
the circumstances of the case it was reasonable for the report to be
made to the second respondent.
The report was made behind closed
doors and the second respondent avers that in her opinion the report
was made
bona fide
. The report was also made to the
second respondent in confidence. The second respondent sought the
help of two social workers in
taking the matter forward. In the
circumstances I consider this to be both reasonable and responsible.
Second respondent sought
to speak to the second applicant alone. It
was the second applicant who involved other people. It is
understandable that the second
applicant would contact her husband
(first applicant), but it is neither understandable nor reasonable
for the second applicant
to relay the report to her employee. The
social worker found that there were incidents of sexual
experimentation between the brother
and sister and this appears in
the relevant report. This report was not disputed by any party and it
appears to be common cause.
This finding by the social worker
supports the original report as disclosed by the second respondent.
27. In the
circumstances I conclude that the report was made
bona fide.
Furthermore, for the reasons set out above I believe that I
should exercise this court’s discretion and not order the
disclosure
of the identity of the person who made the report in the
present case.
28. Originally
the applicants sought an order of costs against the second
respondent. Applicants’ maintained this attitude
until they
filed their heads of argument in this matter on the 20
th
October 2014. Subsequent to filing the said Heads of Argument, they
took the position that if second respondent withdraws her opposition
to the application and abides the decision of the court then they
would not seek a costs order against second respondent.
29. Second
respondent’s position on costs was that an organisation was
assisting her with the professional fees of the advocate
representing
her, but that she was responsible for the disbursements of her
Counsel as well as the professional fees and disbursements
of the
attorneys representing her. The organisation that assisted her with
the professional fees of the advocate who represented
her was not
seeking to recover costs. In the circumstances the second respondent
is awarded her costs. Such costs to include the
disbursements of the
advocate representing her together with the professional fees and
disbursements of the attorneys who represented
her.
30. During the
hearing of this matter I enquired whether the second applicant and
the children had received the guidance and assistance
in establishing
boundries for sexual conduct as well as the therapy recommended by
the social worker. Counsel who appeared for
the applicants made the
necessary enquiries and informed me that second applicant and the
children had not had the benefit of such
guidance and therapy.
31. I enquired
whether applicants were willing to have second applicant and the
children undergo the necessary sessions with the
social worker to
establish the boundries for sexual conduct between the children.
Applicants agreed and I requested applicants’
Counsel to draw
up an appropriate Order that would cater for this. In broad outline I
required the Order to make provision for
consultation with a social
worker or a social welfare organisation to cater for the
establishment of sexual boundries and therapy
for the children and to
report to the Registrar within four months of the date of such Order
that the situation had been appropriately
dealt with, failing which
the Registrar was to report the matter to the Department Of Social
Welfare for further investigation.
In taking such approach I do not
make any judgment on the applicants as parents. The fact that they
readily agreed to such an Order
shows that they are willing to act in
the best interests of their children.
32. An Order was
subsequently made in accordance with the broad outline set out above.
In taking such approach, it is also important
that one does not take
a knee jerk reaction to any allegation of sexual conduct between the
children and think the worst, but against
this must be weighed the
fact that timely and appropriate intervention may prevent one or both
of the children suffering emotional
or physical damage later in their
lives. In these circumstances, it is always better to take
responsible and appropriate action
rather than to ignore warning
signs of a potential problem.
33. In the
circumstances, the following order is made:
33.1.The
application is dismissed;
33.2.The second
respondent is awarded costs on a party and party scale.
33.2.1. Insofar
as such costs relate to the advocate who represented her, such costs
are to be confined to the disbursements relating
to the engagement of
the said advocate;
33.2.2. Insofar
as such costs relate to the attorneys who represented her, such costs
order includes the professional fees and disbursements
of such
attorneys.
LEVER
AJ
APPEARANCES:
For
Applicants: The Heads of Argument were drafted by Adv SJ Reinders ,
but the matter was argued by Adv Sieberhagen for the applicants.
For
Second Respondent: Adv JH Mollentze
Date
of Hearing: 3 December 2014
Date
of Judgment: 27 February 2015
[1]
1996 (1) SA 649
(T)
[2]
A v R Kinder – En Kindersorgvereniging case., supra at 655 –
656.
[3]
A v R Kinder – En Kindersorgvereniging case., supra at 657.
[4]
A v R Kinder – En Kindersorgvereniging case., supra at 657
F-G.
[5]
A v R Kinder – En Kindersorgvereniging case., supra at 657
B-C.
[6]
A v R Kinder – En Kindersorgvereniging case., supra at 657 H.
[7]
The Constitution of the Republic of South Africa, 1996.
[8]
Act 38 of 2005.
[9]
Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA
623
(A) at 634 H-I.