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[2011] ZANCHC 29
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S v J.G.S (304/2006) [2011] ZANCHC 29 (30 September 2011)
15
IN THE HIGH COURT
OF SOUTH AFRICA
(NORTHERN CAPE,
KIMBERLEY)
Case No: 304/2006
Heard on: 29-31/03/2011 &
20-24/06/2011
Delivered on: 30/09/2011
In the matter between
Ms S
….................................................................................................................
PLAINTIFF
AND
Mr J G S
….......................................................................................................
DEFENDANT
JUDGMENT
PAKATI AJ
Having read the
documents filed of record and heard full argument on 27 June 2011 by
counsel for the parties (Advocate L van Niekerk
for the plaintiff
and Adv CH Botha for the defendant) I issued the following order on
the same day:
“
1.
That the bonds of marriage subsisting between [the] plaintiff and
[the] defendant be and are hereby dissolved.
2. The parental
responsibilities and rights with regard to the care of the minor
child TJS born on 05 November 2001, as contemplated
in sec 18 (2) (a)
of the Children’s Act, 38 of 2005, are awarded to the defendant
and the plaintiff.
3. The permanent
residency of the minor child is awarded to the defendant.
4. That specific
parental responsibilities and rights with regard to contact of the
minor child as contemplated in sec 18 (2) (b)
of the Children’s
Act are awarded to the plaintiff in the following manner:
4.2 Contact on
alternative weekends from 17h00 on Friday to 17h00 on Sunday.
4.3 Public holidays to
alternate between the parties.
4.4 Short school
holidays to alternate between the parties.
4.5 Long school
holidays to be divided into two and the child to spend one half of
each long school holiday with the other parent.
4.6 At least three
hours contact to be awarded to the plaintiff on the birthday of the
minor child and that of the plaintiff and
mother’s day.
4.7 Reasonable
telephonic contact.
5. That the parental
responsibilities and rights with regard to guardianship of the minor
child as contemplated in sec 18 (2) (c)
and 18 (3) of the Children’s
Act are awarded to the parties jointly.
6. That the defendant
will add the child as a beneficiary on his medical fund.
7. That the parties
will share all medical and like expenses of the child not paid by the
medical fund on a 50/50 basis.
8. That the parties
will share on a 50/50 basis all educational expenses incurred in
respect of the child such expenses to include
school uniforms, school
fees, school books, extra-mural activities, sports equipment as well
as the costs incurred upon tertiary
education.
9. That the joint
estate be divided.
10. That fifty percent
of each party’s pension interest as at date of divorce in the
Government Pension Fund is awarded to
the other party.
11. Such pension
interest will be paid out to the other party within sixty days of a
request [therefore] being submitted to the
pension fund.
12. Each party will
ensure that a note [endorsement] is made on the record of the
relevant pension fund that the other party is
entitled to the above
relief.”
The issue of costs stood
over for later determination.
These are my reserved
reasons for the order made.
The parties were married
to each other on 07 December 1991 in community of property. One
child, TJS, was born out of this marriage
on 05 November 2001.
The defendant opposed
the application and filed a plea and a counter claim. In his
counterclaim he basically seeks a similar order
as the plaintiff
except that he wants the child’s custody to be awarded to him.
On 29 March 2006 he filed an instruction
to the family advocate to
investigate which parent should be awarded custody of the minor
child. The trial, which lasted about
eight days, revolved almost
exclusively around the issue of who is the parent most suitable to
be the primary care-giver with
whom the child will reside. All
references to the child refers to TJS.
The parties also had in
their custody two foster children, K and G, twin boys aged 16, who
had been in their custody since they
were five years. In a report
(Annexure “E”) compiled by Ms Riana Cronje, a clinical
psychologist, on 13 October
2006 it emerged that in August 1997
the plaintiff was diagnosed with bipolar disorder and was referred
to Dr Jordaan, a psychiatrist
in Bloemfontein, where she was
hospitalised. According to Ms Cronje the plaintiff resisted taking
her prescribed medication which
maintains a chemical equilibrium in
the system, and experienced a relapse as a result. When she
continued with the treatment
her condition improved. At para 5 of
her report she said:
“
5.
In November 1999 she had a relapse and I saw her on four occasions
during that month. She agreed to take her prescribed medication.
6 In 2003 she became
depressed due to clashes with management at school. She visited me on
13 November as well as on 03 December.
It was suggested that she
should be re-employed at another school. An appointment with her
psychiatrist was scheduled for January
2004.
7 . I had no further
contact with Mrs S until March 2006.
8. During appointments
on 14 March 2006 and 17 March [2006] she discussed severe marital
problems. She was very concerned about
the children’s future.
She could give a good account of herself but came across as being
agitated and very suspicious towards
her husband. Mrs S was advised
again to see a psychiatrist. She declined to do that.”
In 2003 the plaintiff
accused the defendant of sexually molesting their minor child, TJS,
when she was about eight months old.
She alleged that the child
displayed inappropriate sexual behaviour and refused to be washed on
her vaginal area. She also accused
the defendant of having
extra-marital affairs, abusing her physically, emotionally and
psychologically in the presence of the
minor children. She alleged
that the defendant mistreated the children and would beat K for no
apparent reason. Professor Annette
Louw, who conducted a forensic
psychological assessment on the minor child, who was five years old
at the time, made the following
finding on 10 August 2007:
“
Based
on the hypothesis formulated and investigated, it is my opinion that
the allegations of sexual abuse against Mr S cannot be
substantiated.
It is clear from the above exposition that too many errors have been
made and too many questions remain unanswered.”
On the other hand the
defendant claimed that on the contrary it was the plaintiff who did
not treat the children well.
When the family
advocate, Ms Prettia Mmule Molokwane, conducted the investigation
she was in possession of the reports by Professor
Annette Louw and
that of Professor Almoero Weyers, a clinical psychologist. By 17
September 2007 the family advocate’s
report was completed. She
recommended that the permanent residency of the child be awarded to
the defendant. The psychological
report (Annexure “F”)
completed by Prof Weyers was filed on 21 September 2006 wherein he
recommended that custody
and control of the children be awarded to
the defendant. During this interview he consulted with the
plaintiff, the defendant,
the two foster children and the child. At
para 2 of his first report he made the following remarks:
“
During
the evaluation of Mr S, the impression was obtained that he is
experiencing a lot of traumatic problems with Mrs S. She,
for
example, behaves in a destructive manner, assaults the children and
accuses Mr S of molesting her minor daughter sexually.
Sometimes she
comes home late at night and shows bizarre behaviour. She previously
received psychiatric treatment, but presently
refuses medication and
denies being ill. Regarding her pattern of behaviour, it seems that,
at times, she has no contact with reality.
For example, she chased
the children out of the house and tore their clothing off. Mr S is
very alarmed at the way in which Mrs
S is handling the children. The
impression is [gained] that Mr S has good insight in the needs of the
children and that he is trying
his utmost to ensure that they will
not be caused any grief. It was also clear that all three children
have a very positive attitude
towards Mr S. TJS was very happy to see
her father again and held on to him for quite a time.”
In para 4 to 7 he added:
“
4.
According to Mrs S’s personality test, it seems that she is
emotionally unstable and that medical risk factors are present.
Her
personality can summarily be described as impulsive, mercuric,
excitable and intense. Her diagnostic test was completed in
such a
way that the validity thereof is questionable. This could be as a
result of a confused state or insufficient insight. Other
elements
are indicative of acting out, moodiness/capriciousness and the
presence of rather serious psycho-pathology. In the clinical
interview with Mrs S, it became clear that serious problems are
present. She is inclined to the projection of her own problems
on
others. The interview was characterised by a high extent of emotional
[liability] and general denials. She denies that she [hallucinates]
and that she is ill and refuses to use any medication in connection
to that. Elements of paranoid ideas are present. Mrs S struggles
to
answer questions directly, wanders off the subject and laughs
inapplicably. The clinical image she portrayed was that of an
emotional labile person, who struggles to concentrate and is very
suspicious. She has trouble in maintaining continuity in her
thoughts
and her general emotional conduct/behaviour is
inapplicable/inconsequent. She talks deliriously/confused and
continuously.
5. In contrast with
the clinical image that was obtained of Mrs S, Mr S is a level-headed
and well-balanced person. According to
information [at] my disposal,
it seems that Mrs S also causes serious problems in her situation at
work. Action has repeatedly
been taken against her, but it [leads] to
no improvement of her general behaviour. The general impression of
Mrs S is that she
is emotional, highly unstable and is probably
suffering from bipolar disturbance. Elements of a psychotic
adjustment are also present
with Mrs S. She previously received
psychiatric treatment. Former psychotic episodes were mentioned in
one of her medical reports.
6. Regarding the
children, it is clear that their mother is an embarrassment to them
in the presence of other children and that
her behaviour destabilizes
them scholastically and emotionally. They experience their mother as
very quarrelsome and her general
conduct as highly [unacceptable].
Contrary to this, they feel very [positive] towards Mr S and it seems
that he is a very acceptable
person. In spite of everything, they
still have positive emotions towards Mrs S.
7. If the situation is
evaluated as a whole, it seems that Mrs S experiences serious
problems even to the point of psychosis. It
is clear that she
experiences episodes during which she loses contact with reality. She
maintains a very unstable relationship
with the children and harms
them emotionally, physically, scholastically and socially. Mrs S is
under no circumstances capable
of providing a stable parental home
for the children. In contrast to this, Mr S has a good record in this
regard. He seems to be
stable and responsible and is very worried
about the welfare of the children. The latter cannot be said of Mrs
S. In this case,
it is very important to protect the children. The
only obvious/proper place is under the custody of Mr S. The fact that
Mrs S denies
that she is ill and refuses treatment makes her general
situation even more risky. Therefore it is recommended that custody
and
control be given to Mr S and that Mrs S has the right of access
to the children when she is emotionally more up to standard. She
shows [insufficient] insight in the needs of the children, as well as
in her own behaviour. Thus, the undersigned would not recommend
that
the children can stay over at their mother’s place during
weekends. If she should stabilise at a later stage, it could
well be
taken into consideration.”
On 18 June 2009 the
family advocate, Mr Ratshilumela David Ramanenzhe, filed a
supplementary report which essentially reiterates
the contents of
the initial report of 17 September 2007 and its recommendations by
Ms Molokwane. Prof Weyers was again requested
to consult with the
plaintiff, the defendant and the child for the purpose of updating
his report earlier done in September 2006.
When she took the stand
the plaintiff testified that the child is currently attending school
at Herlear Primary School doing grade
5. She mentioned that before
the child was born the defendant cancelled his medical aid and
refused to re-instate it. She obtained
medical aid of her own. She
says the defendant disputed paternity but changed his attitude after
the child was born. At home
he did not help her with anything.
According to her the defendant only serviced the monthly bond
payments.
The plaintiff stated
that in 1991 the defendant started being very aggressive towards her
and used abusive language in front of
the children. At that stage
the foster children were still staying with them. She claims that
the defendant abused her as a result
of which she sustained injuries
and that he abused alcohol. The foster children had to be removed to
Thusong Home because they
also became violent towards her. In 1997
the defendant took her to Ms Cronje who referred her to Dr Jordaan.
According to her
Dr Jordaan did not do tests on her or interviewed
her but instead listened to what the defendant told him. She
testified that
Dr Jordaan diagnosed her with a multiple personality
disorder and when she picked up fights with the defendant, wanting
to leave
him, he diagnosed her with bipolar disorder.
The plaintiff went on to
explain that the physical abuse carried on until 2006. A protection
order was issued against the defendant.
This led to him leaving the
common home after he was arrested. In the beginning the child would
be with the defendant for alternative
weekends and for a week or two
during December holidays. Later he stopped phoning the child and did
not fetch her like he used
to.
It is common cause that
the defendant left the common home in 2006 and that an interdict was
granted against him which prevented
him from accessing the common
home. It is also common cause that he pays monthly bond instalments
of R1 765.00 on the house
where the plaintiff and the child
live even though he lives at his parental home in Galeshewe.
The defendant testified
that his contact with the child was frustrated by the plaintiff. If
she allowed him contact she would
return claiming that she missed
the child and wanted to take her out and promised to return her
which never happened. She denied
him access to the child’s
school reports. There were occasions when she would not register the
child at school at the beginning
of the year but when he did she
would deregister her and take her to a different school. Her last
destination was Herlear Primary
School.
The defendant confirms
that the plaintiff was diagnosed with bipolar disorder by Dr Jordaan
whilst they were still living together.
She only took her medication
when she was at Hydromed Hospital in Bloemfontein otherwise at home
she flushed the medication down
the toilet, claiming that it made
her fat. The plaintiff refused to go to hospital when she suffered a
relapse. She had to be
sedated in order to get her to hospital. Ms
Cronje would call Dr Heever, their family doctor, and the police
when she turns violent.
She was treated at Curomed Hospital in
Kimberley and later at Hydromed Hospital. When she returned from the
hospitals the refusals
and denials would start all over again.
The defendant says that
during 2009 and 2010 when the child visited him he noticed some
bruises on her body. The child complained
that the plaintiff hit her
with a rubber hose and pinched her. There were also instances where
she exposed the child to unhealthy
situations. For example, she took
the child to hiking spots where she allowed strangers in her car
whilst pirating as a taxi.
On confronting the plaintiff she told him
that he should not tell her what to do. She also used their Trivia
vehicle, which had
a problem with brakes, with their daughter who
was still very young as a passenger.
The defendant added that
in her manic stage the plaintiff was unable to manage her own
affairs. For instance she distributed her
salary amongst street kids
in town. On another occasion she bought expensive furniture which
they did not need and could not
afford. The furniture was restored
with the help of Ms Cronje and the plaintiff’s uncle, Mr de
Beer, a manager in one of
the furniture stores. It was also his
evidence that the plaintiff was very active in politics and on
numerous occasions attended
political meetings for long hours with
the child. He disputed the plaintiff’s allegation that he had
another child who
had a bad influence on their child. He explained
that the child, whose name is S, is a neighbour’s child who
stays at her
parental home. His sister looks after S. This is how
the children got used to each other. He denies that S displays
delinquent
tendencies.
Prof Weyers testified
for the defence. He was already retired when he testified. He was in
the Unit for Professional Training
and Services in the Behavioural
Sciences at the Free State University and had been training
psychologists since 1978. He interviewed
clients and compiled
reports and testified in courts of law about custody matters since
1976. In later years he worked in cases
in which family advocates
were involved. In the first interview of the parties in this matter
in September 2006 he used a sentence
completion test, a scientific
test which gave him more or less an idea of what the children’s
aspirations or needs were.
He also referred to the reports of
Charlene Laufs, Dr Jordaan and Ms Cronje. He also made use of
background information from
the family advocate, Dr Heever and the
reports from the Northern Cape Education Department. He testified
that he interviewed
the parties and looked at their tendencies
because tendencies tend to repeat themselves. He was the only expert
who testified
and his evidence was not challenged by the plaintiff.
On 18 April 2011 he
interviewed the plaintiff, the defendant and the child to update his
2006 report and make a fresh assessment.
Firstly, he used the
personality test called 16PF which, when used, gives a skeleton
picture of one’s personality (an idea
of what can be expected
of a person and what he is doing now and a prognosis for the
future). He loaded the results into a computer
which generates a
print out of the results. It is not possible to manipulate the
results. Secondly, he used the MMPI 2 which
stands for Minnesota
Multiple Personality Inventory. The 2 stands for second or upgraded
version. MMPI 2 is also a test used
to measure psychopathology or an
illness present. This test is very sensitive to faking any
information. He testified further
that he normally uses medical
reports or reports compiled by the social workers before he makes a
recommendation, which method
was again followed in this case. When
he ultimately makes a recommendation he takes into account the best
interests of the child.
In the latest report Prof
Weyers recommended as follows:
“
3.1
It is my opinion that the situation of this family has not changed
much since the last evaluation. Mr S still maintains the
positive
image of the anchor of the family. He is trustworthy, stable and one
can depend on him. He also has a calm effect on the
little girl and
she depends more on him as her confidant. He also possesses positive
traits that make him more acceptable and efficient
as a parent. He
shows good work security and his general actions show that he
delivers on his responsibilities. In contrast to
this, Mrs S
impresses as a risky parent who is being characterised by a lack of
emotional stability and a cognitive functioning
that poses many
questions. Her general actions are strange and lead to her suspension
as a teacher. Her professional security is
subsequently questioned.
She also frustrates Mr S’s contact to his daughter. It is my
impression that Mrs S does not currently
suffer from any depression
mood. The possibility is not excluded that it could return in future
and intensifies the already existent
problematic aspects.
3.2 ...........
3.3 It is therefore
recommended that in future [the child] will live with Mr S and that
he be awarded the primary parental responsibilities.
Decision-making
responsibility should be vested with Mr S. Reasonable contact rights
should be awarded to Mrs S.”
Prof Weyers said that if
the diagnosis by Dr Jordaan was correct even though it did not
influence him in his reports it explains
many of the traits that he
found in the behaviour of the plaintiff. It is like manipulative
behaviour. He testified that it is
very difficult for a child of
this age (nine years), to live with a parent with these personality
traits. This affects the interpersonal
behaviour or relationship of
the child and her performance as seen from her school reports. He
testified that there is no continuity
in the plaintiff’s
emotions which makes it difficult for the child who must rely on a
stable emotional life of the parents.
That brings a lot of stress to
bear on her as lots of anxiety is produced in her and that disables
her from developing a well
balanced personality. After looking at
the fifteen allegations levelled against her by the Department of
Education he concluded
that her behaviour gives him an idea of a
person who is seriously mentally ill and it fits in well with her
behaviour. His concern,
inter alia
, was that when the child
gets older, around twelve to thirteen years, she might get more
difficult and she will stand up to the
plaintiff and the plaintiff
will not cope with the stress. This according to him will lead to
the plaintiff suffering from bipolar
depression. He testified
further that if the child is prevented from going to the defendant
she will start disliking the plaintiff
and will probably get more
afraid of her.
Prof Weyers testified
that on the whole the basic personality of the defendant looks good
and that if he is awarded care and custody
of the child he will be a
very good parent and will bring up his child very well. The
plaintiff disputed the contents of this
report, as she has done with
all previous reports of the various professionals. She even disputed
that she had symptoms of bipolar
disorder.
Prof Weyers further
testified that the child lacks confidence. He found that she is not
emotionally mature as she should be at
her age. During the interview
the child requested to be with the defendant but did not want the
plaintiff to know because she
was afraid of her.
The family advocate, Mr
Ramanendzhe, called the family counsellor, Ms Jeanette Rosaline
Browers, who is attached to the component
of the family advocates,
to testify. Her duties in the office are to conduct enquiries in
divorce matters where care and contact
of minor children is
concerned. In dealing with the children they usually use observation
and informal interviews. In this method
she uses incomplete
sentences consisting of three parts. The first part is “all
about me”, the second is “a
letter to my daddy”
and the third is “a letter to my mother.”
On 30 March 2011 Ms
Browers went to the plaintiff’s house to verify some
information she got from the child in 2009 when
she last interviewed
her. The plaintiff refused her entry into her home. As a result the
only option was to visit the child at
school the following morning.
During the interview she realized that there was no one that the
child idolizes or had no role-model
which according to her was
unusual. The child mentioned that she did not like it when her
mother beat her up with a belt because
she sustained bruises. The
child also told her that she did not like it when her mother shouted
at her and accused her of having
taken her things. This was not
disputed by the plaintiff. It was strange for Ms Browers that the
child could not choose which
parent she preferred to stay with. She
testified that in that case they do not pressurise the child to
choose between her parents.
One of the exercises is
to cause the child to draw some pictures. From these pictures Ms
Browers noticed that the child drew the
family in one row from which
it could be inferred that she sees her family as a unit.
The issue to be
determined by this Court is who should be granted care and custody
of the minor child. The plaintiff testified
that Dr Jordaan did not
interview her and no tests were done. She maintained that she took
the medication that was prescribed
by Dr Jordaan and never deviated
from the prescription. Miss van Niekerk for the plaintiff argued
that no evidence was led by
Dr Jordaan with regards to the tests
done and no report by him was submitted in court. This argument
ignores the fact that the
evidence is compelling that from time to
time the plaintiff suffered from some psychological attacks which
caused her to be restrained
and sedated and that afterwards
medication was prescribed by Dr Jordaan. It is this medication that
the plaintiff admits to have
taken as ordered. She also admits that
Dr Jordaan diagnosed her with bipolar. I should not be understood to
be making a finding
that the plaintiff indeed suffers from this
particular disorder.
In response Mr Botha
argued that whether the plaintiff suffers from bipolar disorder is
neither here nor there because the defendant
is not relying on that
in order to be awarded care and custody of the child. He contended
further that indeed Dr Jordaan did
not testify and therefore no
reliance can be placed on the reports he compiled. In my view, Mr
Botha was too kind to the plaintiff
because he may as well have
added that some form of mental defect has been established in the
plaintiff that shows that she is
unable to manage property and which
makes her less worthy to be awarded the main custodianship of the
child.
The plaintiff at no
stage set this matter down for trial. It was always the defendant’s
attorneys who did so. The matter
was set down for trial in 2008.The
plaintiff’s new attorneys, Engelsman, Magabane Inc, only came
on board the day before
the trial. The matter could not proceed. By
that time the reports by the family advocate were outdated and the
plaintiff refused
to go back to Dr Jordaan for reassessment. The
report by Prof Weyers had to be updated. Prof Weyers testified that
it is a usual
ploy for mothers in custody matters to accuse the
other party of sexual molestation of the child as a delaying tactic.
It was
therefore convenient for the plaintiff not to proceed with
this matter because she had in the meantime custody of the minor
child
and an interdict against the defendant prohibiting him from
accessing the common home.
Prof Weyers’
evidence shows that he investigated this matter properly. He was not
bias in favour of the defendant. He was
very sympathetic towards the
plaintiff. He was a reliable witness. I accept his evidence. It is
clear from the defendant’s
evidence that he has a good
relationship with the child which was confirmed by Prof Weyers. He
did not present the plaintiff
as a bad person. He was just concerned
about the welfare of the child and the health condition of the
plaintiff. The recommendation
of the family advocate was also not
challenged by the plaintiff and is consistent with that of Prof
Weyers.
The evidence shows that
the plaintiff lacks emotional maturity and is psychologically
unstable. She is not capable of providing
a stable parenting home.
Prof Weyers’ report is consistent with the way the plaintiff
conducted herself in court. She had
no order of thoughts and lacked
concentration. She could not think consistently in an organised way.
She struggled to answer
questions directly and she would wander off
the subject and would request that even simple questions be
repeated. She was evasive
and gave elaborate explanations. She would
laugh inapplicably and this happened continuously. She portrayed
herself as a good
person and always puts the blame to other people.
She admitted that she has been suspended from school by the
Department of Education
but she gets her full salary. Plaintiff is
also, no doubt, a liar.
The fundamental
principle consistently applied by South African courts in custody
disputes is entrenched in s28 (2) of the Constitution
which provides
that a child’s best interests are of paramount importance in
every matter concerning the child. See
JACKSON v JACKSON
2002
(2) SA 303
(SCA
) at 307i – 308A. See also
P
v P
2006 (5) SA 94
(SCA)
at 99J
With regards to costs Mr
Botha on behalf of the defendant requested the court to make an
order that the plaintiff pay the costs
of the last week of June, 20
to 24 from her half of the joint estate after the division, and not
from the proceeds of the joint
estate. He said it should have been
very clear to her as well as her legal representatives that the
court could not grant her
care and custody of the minor child after
Prof Weyers’ report was compiled. Ms van Niekerk requested the
court to order
that each party pay her/his own costs.
While there is merit in
what Mr Botha contended the fact of the matter is that the plaintiff
tried to do the best for her child.
In custody matters there is no
winner or loser. In truth the fact that the case was somewhat
dragged out merely went to confirm
that the plaintiff lost her sense
of reality and was an extremely difficult witness but should not be
punished for her genetic
condition.
It is for the
foregoing reasons that I made the order in para 1 of this judgment.
ORDER
Each party is to pay
her/his own costs.
_____________________________
BM PAKATI
ACTING JUDGE
NORTHERN CAPE, KIMBERLEY
Appearing for the
Plaintiff
Adv L van Niekerk
instructed by Engelsman Magabane Inc, Kimberley
Appearing for the
Defendant
Adv CH Botha instructed
by Van de Wall & Partners Inc, Kimberley