K v K (17189/08) [2009] ZAGPJHC 13 (6 May 2009)

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[2009] ZAGPJHC 13
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K v K (17189/08) [2009] ZAGPJHC 13 (6 May 2009)

SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE SOUTH GAUTENG HIGH COURT
(JOHANNESBURG)
CASE
NO: 17189/08
In
the matter between:
M
K
Applicant
and
R
K
Respondent
J
U D G M E N T
ROOS,
AJ
:
1
The applicant seeks an order granting him leave to remove his
daughter L (to whom I shall refer by her name) from the Republic
of
South Africa without the consent of L’s mother the present
respondent. The applicant also seeks consequential relief and
costs.
2
The respondent in her counter-application seeks a variation of the
custody order to award custody of L to her alternatively she
seeks an
order that her rights of access to L be specified. She also seeks a
costs order.
3 L
was born on [ …..] when the parties were still married. The
parties married on [ ….] and were divorced on [ ….
].
In terms of the settlement agreement concluded between the parties,
which was made an order of court, custody of L was awarded
to the
respondent subject to the applicant’s rights of access which
were specified in the agreement.
4
On 5 June 2006 pursuant to an urgent application (the urgent
application) launched by the applicant the High Court of South Africa

(Transvaal Provincial Division) made an order that varied the divorce
order and awarded custody of L to the applicant. This order
was
granted under the following circumstances:
During
September 2005 L’s teacher noticed that L was behaving
strangely. She reported this to the respondent. Pursuant
to this
report an investigation was done by Heather Benfield a social
worker. Her report is dated 12 September 2005. A copy
of her report
is attached to the urgent application a copy of which papers have
been made available to me by the applicant’s
attorney with
the consent of the respondent.
Apparently
it was suspected that the applicant might have sexually abused L
and the respondent decided not to allow the applicant
to exercise
his rights of access.
Following
correspondence between the attorneys of the parties it was decided
that expert reports would be sought from Dr P.
M. Duchen and Dr A.
Rencken-Wentzel both of whom are counselling psychologists.
Rencken-Wentzel prepared a report dated 7 March
2006 and Dr Duchen
prepared a report dated 15 March 2006. Copies of both reports are
attached to the urgent application.
Rencken-Wentzel
in her report recommended
inter
alia
:
That
both the parties should consult a psychiatrist.
That
L should consult both a psychiatrist and a psychologist.
That
a case manager should be appointed who would draft a parenting
schedule for the next three months and would have certain
other
rights and obligations.
L
would live with each of her parents for one week at a time. This was
to continue for six months.
At
the end of the report it is recorded that should either of the
parties not agree to the proposals that Rencken-Wentzel and Duchen

would make alternative recommendations.
Duchen
in her report agreed with the recommendations made by
Rencken-Wentzel.
In
passing I may comment that the recommendations made by
Rencken-Wentzel and Duchen are somewhat extreme and in effect amount
to a variation of the existing custody order. Their recommendations
do not in my view appear to be justified by the content of either
of
their reports.
Their
recommendations were not acceptable to the respondent. Despite this
neither Rencken-Wentzel nor Duchen appeared to have
made
alternative recommendations.
On
12 March 2006 Tracy Morrison (Morrison) telephoned the applicant.
She said she was a police woman from Sandton Police Station
and
wanted to meet with the applicant. The applicant went to the
Sandton Police Station and met with Morrison who was in plain

clothes and was wearing an FBI badge with her photograph on it. She
advised the applicant that she worked for the United States
of
America Department of Justice. The respondent was also present at
this meeting.
Morrison
said that although she did not believe the allegations of sexual
abuse made against the applicant she was nevertheless
obliged to
arrest the applicant. She offered the applicant two choices. The
first was that the applicant would be arrested
and detained without
bail until the complaint was heard. This would entail the applicant
remaining in prison for some months
whilst the matter was being
investigated. The second choice was that the parties orally agree
that
L
be placed in Morrison’s care where she would receive the
necessary care and treatment at the expense of the Government
of
the United States of America. Morrison apparently contended that
she had a court order which entitled her to keep L for
90 days and
had the option to renew the order for up to a year if necessary.
The court order was apparently not requested by
either of the
parties.
Despite
the bizarre
nature
of the representations made by Morrison both parties agreed to the
second option that L be placed in Morrison’s
care.
The
applicant re-married on 19 March 2006. After his return from
honeymoon he instructed his attorney to investigate Morrison.
The
investigations revealed that Morrison was a fraud and was not
employed by the S A Police. She was known to the American
Embassy
who were apparently also investigating her on charges of fraud. She
was not a member of the FBI nor was she employed
by the American
Department of Justice.
Criminal
charges were laid against Morrison and the applicant launched the
urgent application
ex
parte
.
On
24 May 2006 the court ordered that interim custody of L be awarded
to the applicant pending an application for a variation
of the
custody order that had to be launched within 30 days.
On
5 June 2006 by agreement between the parties the court granted an
order the relevant portions of which are:
“
2. The
applicant is awarded custody of the minor child
L
K (the minor child).
The second
respondent is to be granted reasonable rights of access to the minor
child such access to be phased in and exercised
in accordance with
the recommendations made by the minor child’s counselling
psychologist (currently Anne-Marie Rencken-Wentzel
but also
whomsoever may be attending in the future).
4. The applicant assumes the
responsibility of fully maintaining the minor child subject to his
rights to approach the maintenance
court in the future should current
circumstances change.”
There
ha
ve
been accusations and counter-accusations made by the parties as to
who was responsible for allowing Morrison to take L into
her
custody. It is not necessary to make a finding in this regard.
Suffice it to say that both parties were misled by Morrison’s

fraudulent misrepresentations and that both parties agreed to L
being placed in her custody. It is also not necessary to make
a
finding as to whose version of the circumstances under which the
order a copy of which is annexed as Annexure MK1 in this application

was granted on 5 June 2006. The respondent’s version of why
she consented to the order appears however to be the more probable.
It
does not appear from the papers how the applicant managed to regain
custody of
L
from Morrison but she appears to have been in his custody since June
2006.
In
January 2008 there was a robbery at the applicant’s home. The
applicant’s wife,
L
and her half-sister T were held up at gunpoint by a number of men.
This has traumatised both the wife and L. T was 17 months
old at the
time.
Although
it is not stated exactly when the applicant decided to emigrate to
Israel it appears to have been
shortly
after the robbery as on 12 March 2006 the applicant concluded a
written agreement with the respondent to enable L to emigrate.
A
copy of the agreement is attached as Annexure MK2 to the
application. The relevant portions of the agreement are as follows:
“
7.
M
has elected to relocate to Israel.
It is
recorded that this decision was only arrived at after careful
consideration with L’s best interests being of paramount

importance. The prevailing circumstances in the Republic of South
Africa being borne in mind.
The parties
have agreed that the proposed relocation is in L’s best
interest.
Thus this
agreement serves to confirm that M as custodian parent is hereby
granted permission by R to relocate to Israel together
with L.
Furthermore
it is recorded that R K undertakes to sign all the necessary
documentation to give effect to the proposed relocation
and
furthermore that she will comply with all reasonable requests in
connection therewith.”
The
agreement was signed by both parties. The respondent subsequently
withdrew the consent to allow L to emigrate contained in the

agreement.
The
respondent contends that she signed the agreement Annexure MK2
because she had been deprived of access to L since June 2006
and
that the applicant promised her that he would grant her access to L
if she signed the agreement. She says she withdrew her
consent to
allow L to emigrate when the applicant breached this promise. There
is a dispute on the papers as to exactly what
was promised and who
committed the breach of the agreement. It is not necessary for me to
decide this dispute as I do not consider
that I am bound by the
agreement Annexure MK2. It is for the court to decide what is in the
best interests of the child.
The
papers before me reveal a great deal of animosity between the
parties which unfortunately has led to bitter
,
protracted and costly litigation. Neither party asked for a referral
to evidence. Where there are factual disputes that require
to be
decided I have applied the principles laid down by Corbett JA (as he
then was) in
Plascon-Evans
Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634H-635D.
The
guiding principle in deciding
issues
such as are raised in this application is laid down by section 28(2)
of the Constitution:
“
A child’s best
interests are of paramount importance in every matter concerning the
child.”
The
approach to be followed was laid down by Scott JA in
Jackson
v Jackson
2002 (2) SA 303
(SCA) at 318E-I:
“
It is
trite that in matters of this kind the interests of the children are
the first and paramount consideration.
It is no doubt true that generally speaking where following a
divorce, the custodian parent wishes to emigrate a court will not

likely refuse leave for the children to be taken out of the country
if the decision of the custodian parent is shown to be
bona
fide
and reasonable. But this is not because of the so-called rights of
the custodian parent; it is because in most cases even if the
access
by the non-custodian parent would be materially affected it would not
be in the best interests of the children that the
custodian parent be
thwarted in his or her endeavour to emigrate in pursuance of a
decision reasonably and genuinely taken. Indeed
one can well imagine
that in many situations such a refusal would inevitably result in
bitterness and frustration which would adversely
affect the children.
But what must be stressed is that each case must be decided on its
particular facts. No two cases are precisely
the same and while past
decisions based on other facts may provide useful guidelines they do
no more than that. By the same token
care should be taken not to
elevate to rules of law the
dicta
of judges made in the context of the peculiar facts and circumstances
with which they were concerned.”
For
the applicant to succeed the applicant had to show that his decision
to emigrate was both
bona
fide
and reasonably and genuinely taken and that it was in the best
interest of L. As stated by Scott JA in
Jackson
’s
case each case must be decided on its own particular facts. See also
F
v F
2006 (3) SA 42
(SCA) at 47E-F.
Apart
from the approach to be followed as laid down in
Jackson’s
case the court has also borne in mind that a court should be
reluctant to interfere with the decisions of a custodian parent.

This appears from the following extract from the decision of Miller
JA (as he then was) in
Du
Preez v Du Preez
1969 (3) SA 529
(D&CLD) at 532E-F:
“
This is
not to say that the opinion and desires of the custodian parent are
to be ign
ored
or brushed aside; indeed the court takes upon itself a grave
responsibility if it decides to override a custodian parent’s

decision as to what is in the best interests of his child and will
only do so after the most careful consideration of all the
circumstances including the reasons for the custodian parent’s
decision and the emotions or impulses which have contributed
to it.”
This
extract was referred to with approval in
F
v F
supra
at 48E.
In
paragraph 16 at page 7 of his founding affidavit the applicant
states:
“
Around
the time of our marriage (i.e. 19 May 2006)
J
(his present wife) and I discussed emigrating to Israel by no later
than early 2009. We intended to have a child of our marriage
and
believed that our children could obtain a better Jewish education in
Israel than in South Africa.”
There
is no mention of the proposed intention to emigrate in the urgent
application pursuant to which the applicant obtained the
custody of
L. Having regard to the respondent’s present attitude to the
proposed emigration I have little doubt that she
would have opposed
the application for the variation of the custody order had she been
aware at the time of the applicant’s
intention to emigrate. The
respondent refers to the applicant’s failure to disclose his
intention to emigrate as “a
material non-disclosure” (see
paragraph 42.1/2 page 73). The applicant rejects this contention (see
paragraph 34.1 page 330).
On the papers I am bound to accept the
respondent’s version.
16
The
applicant states that his reasons for wanting to emigrate to Israel
are:
The
children could obtain a better Jewish education in Israel than in
South Africa. The education they could get in Israel is
only
available in South Africa at expensive private schools which he
says he cannot afford.
His
two sisters live in Israel and his parents emigrated to Israel in
November 2008. His two sisters have nine children between
them all
of an age that they can be friends of
L’s.
His
wife
J’s
only sibling, her sister, is planning to emigrate to Israel with
her husband and three children. The three children
are friends with
L.
He
is 40 years old and emigration will become more difficult as he
grows older as
will
his chances of obtaining employment in Israel.
He
anticipates that he will be able to earn enough to provide for his
family without
J
being required to work.
He
was born in Israel
and has an Israeli passport. L and T also have Israeli passports.
He
intends settling in Modiin a city that has schools where
L
can obtain the education he wants her to have at state expense.
Modiin is close to where his and J’s extended family
are or
will be living and this will facilitate a “richer family
life” than they have in South Africa.
The
robbery that has been referred to above has influenced the
timing
of the planned emigration.
17
I
will deal with the applicant’s reasons
seriatim
:
17.1
The
applicant contends that L will obtain a better education in Israel
than in South Africa. Unfortunately the applicant provides
no details
in support of this contention. He does not state where L is presently
at school nor which secondary school she is likely
to attend. He does
not state what the “Jewish education” is that she
presently obtains, if any, nor what such “Jewish
education”
would be in Israel. The respondent states that L attends Rivonia
primary school. Neither party however provides
any detail of the
nature of the education that L is receiving at the school. The
applicant provides no detail of any investigation
made by him of the
schools in Modiin nor of which school L will be attending. It appears
that if she goes to Israel that L will
be attending a school where
the classes will be given in Hebrew. It is not in dispute that L does
not speak Hebrew. The applicant
in reply says that L is attending
Hebrew lessons and that the Israeli Immigration Department and the
Modiin Municipality provide
intensive Hebrew study programmes to
facilitate integration into the community and the country. No detail
is provided of either
of the programmes nor is any detail provided of
how L is coping with her Hebrew lessons. Whilst it is probable that L
would eventually
learn sufficient Hebrew to enable her to communicate
it is not possible to determine how long this would take nor what
effect her
inability to speak Hebrew would have on her school career.
It is self-evident that if she cannot speak Hebrew, which is the
language
of instruction, that this could have a detrimental effect on
her schooling. No detail has been provided of whether L will be able

to integrate socially and culturally in Israel. In particular whether
she will be able to make friends in Israel having regard
to the
language barrier.
As
regards the applicant’s alleged inability to afford private
school fees the applicant provides no details of his income
or
expenditure nor what the private school fees are. He has also not
responded to the allegation made by the respondent that the
Jewish
Social Services will ensure that no Jewish child is denied a Jewish
education and that they will either pay or subsidise
private school
fees in South Africa.
In
my view insufficient detail has been provided to enable me to decide
whether it is in L’s best interests to be removed
from her
school and her friends in South Africa or that she will be better off
in Israel.
The
fact that the applicant’s parents and siblings live in Israel
is an important factor to be considered. No details
are however
provided of how close the applicant is to his parents or his
siblings. The applicant does not respond to the allegation
made by
the respondent that when she and the applicant lived in Israel
during their marriage there was little family support
or assistance
from his siblings. She says that the claim to have a family support
system in Israel is overstated. In any event
having a family
support system does not in my view weigh up against the need to
recreate and then maintain the relationship
between L and her
mother the respondent which I will deal with more fully below.
The
fact that
J’s
sister plans to emigrate to Israel is not a factor of much
significance as too few details are given of her plans.
It is not
stated exactly when she plans to emigrate. This application was
launched in June 2008. There is no indication that
she has
emigrated as yet. It is not stated where in Israel she will be
living nor how close to Modiin this will be. It is not
stated what
the relationship is between J and her sister who lives in Durban
nor what contact they have with each other at
present or are likely
to have with each other in Israel.
The
applicant says that he is 40 years old and that emigration will
become more difficult as he grows older. However he has
an Israeli
passport. Both his children have Israeli passports and he says that
J
will have no difficulty in obtaining an Israeli passport. With the
whole family holding Israeli passports I cannot conceive
that age
will play any role in relocation.
He
also says that it will become more difficult for him to obtain
employment in Israel as he grows older. Whilst I accept that this

might be so the applicant provides very little detail of exactly what
his qualifications are, the work that he does in South Africa
or if
he has made any investigations in Israel as to possible employment
there. All he says is:
“
At
present I will have no difficulty obtaining employment in Israel. I
am a qualified engineer with a post-graduate degree and over
15 years
of experience and I presently work within the IT field. I anticipate
that I will find a job within one month of our arrival
in Israel as
it is a country that relies on a great deal of technology offering
employment to many people in the fields of engineering
and IT. I am
likely to earn
a
sufficient salary to provide for J and my daughters without J being
forced to take up employment purely to earn a salary.”
(paragraph
19 page 8)
It
is not apparent exactly what the qualifications are that the
applicant holds nor in what field his 15 years of experience are.
It
is not stated what work he does at present. No details are provided
of the facts upon which he relies for his statement that
he would be
able to find a job within one month of his arrival in Israel. He does
not state that he has made any enquiries to establish
whether jobs in
the field in which he wishes to work are being advertised or are
available. He does not state what he earns in
South Africa nor what
enquiries if any he has made to ascertain what he might be able to
earn in Israel. His statement that he
is likely to earn a sufficient
salary to provide for his family in Israel appears to be based purely
on speculation.
The
fact that the applicant was born in Israel and that he and his
daughters hold Israeli passports is not in my view a valid
reason
to justify emigration. As stated above it would merely make
emigration easier.
The
applicant states that
he
intends settling in Modiin a city that has schools where L can
obtain the education he wants her to have at state expense.
He says
that Modiin is close to where his and J’s extended family are
or will be living and that this will facilitate
a “richer
family life” than they have in South Africa.
Both
these reasons have been dealt with above.
The
applicant says that the robbery at his home has “determined”
the timing of the planned emigration (paragraph
26 page 10).
However, the robbery appears to be an isolated incident and no
further incident has occurred since January 2008.
The applicant
provides no details of the incidents of crime in the area in which
he lives nor is there any detail provided
of crime statistics in
Modiin. As pointed out by the respondent the applicant simply
ignores the fact that Israel is in a constant
state of war with the
Palestinians or its neighbours. Although J and L were traumatised
by the robbery this is something that
can be dealt with by
counselling. I cannot find on the facts placed before me in this
application that the applicant and his
family will be safer in
Israel than they are in South Africa.
18
The
applicant has not provided sufficient detail to persuade me that it
would be in L’s best interest to emigrate to Israel.
On 26
November 2008 Joffe J ordered that an independent psychologist be
nominated by the Family Advocate to prepare a report that
urgently
addressed the issues relating to the respondent’s contact with
L. Dr Debrah Bernhardt was nominated and her report
dated 16 December
2008 is annexed as Annexure RK51 to the respondent’s replying
affidavit. It is clear from this report that
L is eager to emigrate
to Israel. This is a factor that has to be borne in mind. See
F
v F
supra
at 52E-F.
Dr
Bernhardt states in her report that
L
believes that Israel will take away all her hurtful memories and
solve her problems. This is clearly naïve and unrealistic.
Her
wishes therefore cannot be decisive. It does not appear to me that at
her age L is able to appreciate what it will entail to
remove her
from her established friends and familiar school and surroundings and
thrust her into a foreign environment where she
does not speak the
language required for her schooling or social activities. Furthermore
it is significant in my view that no assessment
has been done in
respect of the suitability of L to be educated in Israel in a
language which she cannot speak.
19
I
am satisfied for the reasons set out above that the applicant has
failed to make out a proper case and that his application cannot

succeed.
20
As
regards the counter-application:
It
is common cause that the respondent has had no access to L since
the custody order was varied on 5 June 2006 save for a visit
under
supervision in Durban on 5 and 6 April 2008 and occasional
telephonic contact. The applicant states that this is because
the
respondent has “chosen not to see L for a period of almost
two years” (paragraph 49 page 16).
The
respondent’s version is:
she
has repeatedly and persistently asked for access/contact by way of
e-mail and sms but the applicant has consistently refused
to grant
her same (paragraph 20.6.6 page 58);
respondent’s
attorney has since September 2007 in writing repeatedly requested
access/contact but such requests have
not been successful
(paragraph 74.3 page 102, paragraph 76.1/2 page 103);
that
the agreement Annexure MK2 that she signed to allow L to be
removed from South Africa was part and parcel of an agreement
that
she would have access to L from 5 to 6 April 2008 and 1 to 4 May
2008. In breach of this agreement the applicant allowed
access to
L only on 5 and 6 April 2008 for a few hours and under
supervision. The applicant refused access to L from 1 to
4 May
2008 even under supervision (paragraph 76.5/6 page 103).
Th
ere
have been numerous requests by the respondent’s attorney
regarding access. These requests have met with either no or

unsatisfactory responses.
22 The
applicant’s attitude is that he is entitled to rely on
paragraph 3 of the court order in terms of which he obtained
custody
of L, a copy of which is annexed as Annexure MK1 to the application,
and which is quoted above. In terms of the order the
respondent’s
right of access was to be phased in and exercised in accordance with
the recommendations made by L’s counselling
psychologist who at
the time of the order was Dr Rencken-Wentzel. Dr Rencken-Wentzel made
a recommendation on 11 July 2006. This
recommendation was addressed
only to the applicant’s attorney and despite repeated requests
was not forwarded to the respondent
or her attorney. It is only on 3
September 2008 that the applicant’s attorney forwarded a copy
of Dr Rencken-Wentzel’s
report to the respondent’s
attorney (see Annexure RK43 page 211).
23 The
report of Dr Rencken-Wentzel is annexed as Annexure RK44 at pages
212/3. The report is dated 11 July 2006. It is addressed
to Allan
Levin and Associates Attorneys who are the applicant’s
attorneys. It reads as follows:
“
Dear Mr Thomas
RE: L K –
L654
Your letter dated 7 March 2006
refers.
I am of the
opinion that it will be in
L’s
best interest if access both physical and telephonic is currently
supervised. I want to recommend that the recommended
supervised
access continue until L’s therapist Ms Wendy St Claire is of
the opinion that L is stable enough that monitored
access can be
considered. Thereafter evaluated access is indicated. I want to
suggest the above recommendations be implemented
as follows in
conjunction with Ms St Claire:
For a period
of six months L to see her mother once a week for an afternoon of
two hours in the direct presence of a supervisor.
These visits
should initially be in the office of the supervising professional.
I want to recommend that Mr David Barlin be
considered as the
supervisor. It is recommended that the supervisor file a regular
monthly report.
Depending on
L’s emotional status I want to recommend that for the next
six months she receives unmonitored telephone
calls from her mother
and go on short visits with her mother to visits with friends and
family who are apprised of the situation.
L should be seen by her
therapist today following a visit with her mother. Mrs K should
receive parent counselling. If there
is any regression in L access
should revert to the two hour direct supervised access.
After a year half-day visits
once a week for three months. Then full-day visits for three months
closely monitored by the therapist
can be considered. After
eighteen months access should be reviewed.
Should you need any further
information please do not hesitate to contact the undersigned.
Sincerely
Anne-Marie
Rencken-Wentzel”
The
report is very superficial. It is apparent that Dr Rencken-Wentzel
did not consult with or even see either of the parties or
L before
the report was written. The report appears to have been written in
response to a letter from the applicant’s attorney
dated 7
March 2006 but this letter does not form part of the papers. Bearing
in mind that Dr Rencken-Wentzel made the recommendations
in this
report without seeing the parties the assumption must be made that
she relied on her assessment of the parties which led
to her previous
report dated 7 March 2006 a copy of which is attached to the urgent
application. I have sought in vain in the report
of March 2006 for
any grounds on which Dr Rencken-Wentzel’s recommendations in
her report of July 2006 can be justified.
It must be borne in mind
that Dr Rencken-Wentzel’s report of March 2006 was aimed at
determining whether L had been sexually
molested. This report was
prepared at a stage when the respondent was the custodian parent and
no application had yet been made
for the variation of the custody
order. I am satisfied that there is nothing in the March 2006 report
of Dr Rencken-Wentzel that
justifies her recommendation that the
respondent should only have supervised access to L. On the contrary
she makes the following
statements in her March 2006 report:
“
L
enjoys a close relationship with her mother but an ambivalent
relationship with her father.”
(at
page 150 of the urgent application)
a
nd:
“
L seems
to have a predominantly positive relationship with her mother.
However she seems to feel ambivalent towards her father and
perceives
him to feel negative towards her.”
(at
page 151 of the urgent application)
24
No
motivation at all has been supplied by Dr Rencken-Wentzel for the
recommendations she makes in her report of July 2006. As stated
it is
a report that apparently was prepared at the request of the
applicant’s attorney. It cannot in my view be justified
on any
grounds and I have little hesitation in rejecting the recommendations
made. To the extent that the applicant contends that
he has relied on
these recommendations to deprive the respondent of access to/contact
with L I find:
The
recommendations have caused incalculable harm.
They
are so bad that no reasonable person would have relied on them and
the applicant was not in the circumstances
entitled
to rely on them to deprive the respondent of access to/contact with
L.
25
Despite
the applicant’s contention that he relied on Dr
Rencken-Wentzel’s recommendations in governing the access to
L
he appears in my view to have gone much further than even her
recommendations. In this regard Dr Rencken-Wentzel’s second

recommendation was that the respondent be permitted to have
unmonitored telephone calls with L. The applicant of his own volition

and for no understandable rational or logical reason decided that the
respondent was entitled to phone L only once a week at 16h20
on a
Friday. Apparently when the respondent did not comply with this
arrangement she was not allowed to speak to L. When the respondent

withdrew her consent to L emigrating the contact was reduced to a
telephone call once every second week before it was terminated

completely.
26
I
find it deplorable that the applicant should allow his hostility to
the respondent to effect adversely the reasonable exercise
by the
respondent of her rights of access to L. I have no doubt that such
acrimony has had a detrimental effect on L’s peace
of mind and
feeling of security and also her feelings of hostility towards the
respondent that are referred to in the report of
Dr Bernhardt.
27
Ms
Julyan SC submitted that because of the implacable hostility shown by
the applicant to the respondent that the only way in which
a normal
relationship can be restored between the respondent and L is for the
court to vary the custody order and award custody
of L to the
respondent. She relied for this submission on
Germani
v Herf and Another
1975 (4) SA 887
(AD) at 905A-B and
V
v V
[2004] 2 FLR 851
(FD).
28
Because of what I regard as the applicant’s unreasonable
conduct I was sorely tempted to vary the custody order. After much

anxious consideration however I have decided not to do so for the
following reasons:
The
passage relied on by Ms Julyan in the
Germani
case is as follows:
“
A note
of warning should I think be added here. If appellant’s access
continues to be frustrated or prevented by first respondent
or the
child the court may well have to consider seriously in th
e
light of all the circumstances, apart from any question of enforcing
the committal order against first respondent whether the
only
solution is to award the custody of the child to appellant at any
rate for such time as he deems fit. (Cf.
Edge
v. Murray,
1962 (3) SA 603
(W) at p. 607.) That would afford an effective
opportunity for father and son to become reconciled.” (per
Trollip JA)
The
reference to the matter of
Edge
v Murray
is a judgment by the same judge in which a similar warning was
issued.
Counsel
representing the parties were not able to refer me to a single South
African matter in which there has been a variation
of the custody
order because of the custodian parent’s hostility to the
non-custodian parent resulting in the non-custodian
parent being
deprived of proper and reasonable access nor was I able to find any
such matter myself. Ms Julyan SC submitted however
that I should
follow the order of Bracewell J in the Family Division in
V
v V
supra
in which such an order was made. The facts in
V
v V
,
however, differ substantially from the facts in this matter. The
hostility of the custodian parent in that case was even more
severe
than in this case and led to repeated litigation between the parties.
Bracewell J found in
V’s
case that the mother had agreed to contact between the father and the
children without any intention of making it work and that
she
actively influenced the children against the father and tried to
break off such relationship as there was. That is not the
case in
this matter even though the applicant has in my view acted
unreasonably and irresponsibly.
28.2 A
more weighty consideration was whether it would be in the interests
of L to vary the custody order at this stage before there
has been a
restoration of the relationship between her and her mother. I cannot
disregard the report of Dr Bernhardt that L harbours
feelings of
anger and hostility towards the respondent. I believe that it is only
through a restoration of the relationship with
her mother that these
feelings of hostility and anger will be tempered, but, because they
exist, I cannot at this stage find that
a variation of the custody
order is in her best interest.
29
Because of the relationship between the parties I am of the view
that it is necessary to define more specifically the respondent’s

rights of access. Ms Julyan SC submitted that I should ignore the
report of Dr Bernhardt and grant the respondent immediate direct

access. Dr Bernhardt, however, appears to have prepared a
well-balanced report and her recommendations clearly reflect her view

of what is in the best interests of L. I cannot simply reject all her
recommendations. Some of the recommendations, however, do
not accord
with the mandate given to her by the order of Joffe J referred to
above. I must also bear in mind that many of her recommendations

require the active co-operation of the applicant. Because there has
been a singular lack of co-operation from the applicant in
the past I
have made provision for this in the order as was done in the matter
of
Germani
v Herf and Another
supra
at 907F.
30 I
have also borne in mind the following dictum from
Germani
v Herf and Another
at 899 D-G:
“
I think
that undue importance was attached to the first respondent’s
evidence and the child’s own profession of his
intractability.
No doubt the attitude of the child ought to be taken into account in
appropriate circumstances, especially where
he is nearly adult. But
here the child, despite appearing older than he actually is, is still
young, immature in mind, impressionable
and, notwithstanding his
stubbornness, unable to decide for himself what is in his best
interests. Indeed, Dr. Wolf’s impression
after examining the
child was that, in regard to his averred dislike of appellant’s
visiting him, he has ‘accepted
(the) views expressed in his
maternal home’
.
Moreover, to attach such decisive importance to the child’s own
professed intractable attitude as the learned Judge has
done means
that the child is thereby being allowed to frustrate access orders
recently agreed upon by his parents and solemnly
granted by the Court
as being in his best interests. That surely cannot be right.
Generally, the correct judicial approach should
be that the refusal
or reluctance of a young child to submit to access is not by itself a
reason for disobeying an order of Court
conferring such access.”
In
having regard to the above dictum, I have borne in mind that
L
is not yet ten years old. In addition, I have no doubt that her
attitude to the respondent has been influenced by the applicant’s

attitude to the respondent. If I should order the applicant to
co-operate in insuring that the respondent is able to exercise her

rights of access, as I intend to do, I have no doubt that this will
in itself contribute in a change in L’s attitude to the

respondent. What is required of the applicant to “co-operate
fully” is that should L refuse to speak to the respondent
or to
go to the respondent or in any manner not allow the respondent to
exercise her rights of access as defined in the order I
give, that
the applicant will then use his parental authority and usual parental
disciplinary techniques in order to compel L to
submit to the
respondent’s access. See
Germani
v Herf and Another
supra
at 900H – 901A and Oppel v Oppel 1973 (3) 675 (T).
31
I cannot find that the parties in pursuing these proceedings did not
act in what each
bona
fide
perceived to be L’s best interests. This being so I am of the
view that each party should bear his or her own costs. Although
the
respondent has obtained substantial success in the matter I have
decided not to award her costs for the above reason and for
the
additional reason that she appears to be funded in this matter by a
benefactor who is not identified on the papers. As a mark
of my
displeasure with the applicant’s conduct in depriving the
respondent of access to L I am going to order that he bear
the costs
of the treatment that I believe is necessary to restore the
relationship between L and the respondent.
32 It
remains only to say something about the replying affidavits that have
been filed by both parties in this matter. The replying
affidavit
filed by the applicant together with its annexures is eighty seven
pages. The replying affidavit filed by the respondent
together with
its annexures is a hundred and twenty seven pages. Both the replying
affidavits are replete with unnecessary repetition
and in my view
both amount to an abuse of the process of the court. In this regard
practitioners should be guided by the
recently expressed views of the Supreme Court of Appeal ( per Schutz
JA ):
“
In
the great majority of cases the replying affidavit should be by far
the shortest.But in practice it is very often by far the
longest –
and the most valueless...................Being forced to wade through
their almost endless repetition when the
pleading of the case is all
but over brings about irritation, not persuasion.It is time that the
courts declare war on unnecessarily
prolix replying affidavits and
upon those who inflate them.”
See
The Minister of Enviromental Affairs and Tourism and other
s
v
Phambili
Fisheries
(Pty)Ltd and another 2003(6) SA 407 (SCA) at para.
80
page 439
3
3
I make the following order:
The
application is dismissed.
The
order granted by the High Court of South Africa (Transvaal
Provincial Division) dated 5 June 2006 is amended by deleting
paragraph 3 thereof and substituting therefor the following:
“
3.
3.1 A case
manager is to be appointed to monitor the reconstruction of the
relationship between the minor child and her mother,
the second
respondent and to ensure that both parents promote the other as a
good parent. Should the parties not within 10 days
of the date of
this order agree on the person to be appointed as the case manager
the Family Advocate will appoint an appropriate
person. The costs of
the case manager are to be paid by the applicant.
3.2 The minor
child and the second respondent are to attend reconstructive therapy
sessions for two hours every second week in
Johannesburg for a
minimum period of three months. Should the parties not within ten
days from the date of this order agree on
the therapist to be
appointed the Family Advocate will appoint a therapist. The costs of
the therapist are to be paid by the applicant.
3.3 The minor
child is to attend individual psychotherapy every second week for a
minimum period of three months in order that
her psychological status
is monitored. The costs of the psychotherapy are to be paid by the
applicant. The psychotherapist is to
be appointed by the applicant.
3.4 The
applicant and the respondent are to attend parental guidance sessions
for a minimum period of three months. The number
of sessions to be
attended is however to be determined by the therapist appointed.
Should the parties not within 10 days of the
date of this order agree
on the therapist to be appointed the Family Advocate will appoint a
therapist. The costs of the therapist
are to be paid by the
applicant.
3.5 As from
September 2009 the respondent will be entitled to have the minor
child with her for one weekend per month from after
school on a
Friday until Sunday evening.
3.6 As from
September 2009 the respondent shall be entitled to have the minor
child with her for every short school holiday (being
a holiday of
less than two weeks).
3.7 As from
September
2009 the respondent shall be entitled to have the minor child with
her for one-half of every long school holiday (being a holiday
in
excess of two weeks).
3.8 The respondent shall be
entitled to telephone the minor child as follows:
-
daily at an appropriate time;
-
on the minor child’s birthday;
-
on the respondent’s birthday;
-
on Mother’s Day;
-
on any significant religious Jewish holiday.
It is
recommended that the parties acquire Skype and a webcam so that
during the telephonic contact it is possible for the respondent
and
the minor child to see each other while they converse with each
other.
3.9 The
applicant is ordered to cooperate fully with the respondent to enable
her to exercise her rights of access set out above.”
Each party is to pay its own
costs.
________________________________
ROOS
AJ
ACTING JUDGE OF THE HIGH COURT
COUNSEL
FOR THE APPLICANT ADV G H
ARDY
INSTRUCTED
BY ALLAN LEVIN & ASSOCIATES
COUNSEL
FOR THE RESPONDENT ADV J JULYAN SC
ADV
S ROSE
INSTRUCTED
BY SUSAN ABRO ATTORNEY
DATE
OF HEARING 24 APRIL 2009
DATE
OF JUDGMENT 6 MAY 2009