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 HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case No: 13612/2024
In the matter between:
C H Applicant
and
A C (FORMERLY E) First Respondent
THE OFFICES OF THE FAMILY ADVOCATE Second Respondent
R C Third Respondent
JUDGMENT DELIVERED ON 4 SEPTEMBER 2024
Hearing dates: 2, 3 and 4 September 2024
GORDON-TURNER, AJ:
Introduction
1. This is an application in which the applicant, who acts in person, seeks to rescind
selected provisions in a settlement agreement which was made an Order of Court in
the divorce action between him and his former wife, the first respondent on 18 July
2023. In summary, the provisions he seeks to remove provided that the first
respondent would have sole and exclusive parental responsibilities and rights in
respect of the two minor children born of the marriage, who are presently 10 and 12
years old respectively, and that he consented to the adoption of the children by the
third respondent, who is now married to the first respondent.
2. Although not stated in his Notice of Motion, the applicant explains in his founding
affidavit that he wishes the selected six paragraphs of the consent paper to be
replaced with an Order that he be granted reasonable conta ct with the children
provided that, if they are not yet ready to engage in contact with him alone, that such
contact be supervised by an independent social worker appointed by the Family
Advocate until such time as the children are comfortable to have unsu pervised
contact with him.
3. The first and third respondents (hereafter collectively referred to as (“the
respondents”) oppose the application. They are represented by the same attorney
and counsel. The Family Advocate has not participated in the proceedings. However,
the children ha ve their own legal representation since March 2022, when the first
respondent appointed an attorney, Mrs Elana Hannington to act for them.
4. This matter first served before Wille J on 14 June 2024 and was postponed until
2 September 2024 with a timetable providing for the filing of papers and heads of
argument. On the initiative of Wille J , the third respondent was joined as the third
respondent. The joinder order was correctly ma de in view of the third respondent’s
interest in the relief sought – if granted, he will be unable to adopt the children as
provided in the Divorce Order. The Order of 14 June 2024 further provided:
“It is recorded that Ms E Hannington represents the inte rests of the minor
children. Suppose an argument needs to be presented on behalf of the
minor children at the hearing of the matter. In that event, the Court hereby
appoints Advocate Adri Thiart to assist in presenting such argument on
behalf of the minor children to assist the Court.”
5. Shortly before the scheduled hearing, and on 28 August 2024, M rs Hannington
delivered a detailed affidavit updating the Court on the welfare of the children and
the outcome of her most recent consultation with them on 27 August 2024, to which I
make further reference below.
6. In response to Mrs Hannington’s affidavit, the applicant addressed a letter to me
via my registrar on 29 August 2024 in which he stated:
“At 18h36 yesterday evening I noticed that Elana Hannington had served me
another and late affidavit on this matter.
As a result of the most recent af fidavit there are clearly disputes of fact that
cannot be decided by the affidavits and for this reason, I am requesting that
your Grace refer this matter to trial so that witnesses can be called and am
approaching your Grace and requesting an expedited date for trial.
If there are factual disputes, then I cannot go by the way of my application. I
understand that the respondents are clearly relying on experts who claim I
am unstable. And my version is that I was not in a fit state of mind when I
signed. In which case both versions aligned at the time that I brought my
application. Now there are disputes of fact, and I don’t actually know what
the respondents are contending.
Please refer to trial so witnesses can be called.”
7. At the hearing on 2 September 2024, applicant motivated his request to go to trial
(modified to a referral to oral evidence) on two bases. First, he contended that M rs
Hannington’s affidavit referred to proceedings that had taken place in the
Magistrates Court during M arch 2024 which gave rise to Protection Orders in terms
of the Domestic Violence Act, 116 of 1998 , and to affidavits referred to in those
proceedings which had been delivered by the first respondent (as applicant /
complainant on behalf of the children) an d by him as the respondent. He contended
that the full text of those affidavits should be before the Court. He further contended
that he needed to obtain a transcript of the hearing that had taken place before
Justice Wille on 14 June 2024. Justice Will e had reportedly alluded then to the
“ventilation of the issues ” which the applicant understood, so he said, to mean that
the learned Judge expected oral evidence to be adduced. The applicant further
stated that he had witnesses who could contradict the c ontents of Mrs Hannington’s
affidavit as far as it made reference to an incident that had taken place at Clifton 4th
Beach in Cape Town in late February 2024 which gave rise to the Protection Orders.
The potential witnesses included his wife, AP, his two brothers and a social worker,
Mineke Toerien, who had previously supervised his contact with the children.
8. As is often the case when a party in a matter has no representation, the Court
was constrained to guide the applicant through the proceedings, and, in particular, to
frequently remind him that he was entitled to make submissions, but in doing so he
could not stray from the evidence on the papers and proffer new information from the
Bar, to which counsel for the respondents justifiably objected. The applicant was also
labouring under the misapprehension that the proceedings could or would readily
convert to a trial, and that it would be postponed, or at least stood down for a day to
afford him an opportunity to call witnesses. Treading the fi ne line between advising
and guiding, the Court explained the manner in which a referral to oral evidence or
trial ordinarily takes place, that the respondents had been brought to Court in motion
proceedings, that the Court had regulated the conduct of the proceedings
accordingly by way of the Order granted by Justice Wille on 14 June 2024, that the
primary issue to be decided by the Court was whether it could rescind the provisions
of the settlement agreement as prayed for by the applicant, and that the or al
evidence he apparently intended to adduce was not pertinent to th e issue of
rescission. The applicant’s informal application from the Bar for a referral to oral
evidence could, at that point , have been dismissed, as the respondents’ counsel
urged me to do. The Appellate Division 1 considered the analysis of an alleged
dispute of facts and request for referral to oral evidence in circumstances similar to
the present matter where it was common cause that the relevant agreement had
been signed by the party requesting the referral, that it had been made an Order of
Court and that its terms were binding on her. Milne JA agreed at 261B -C with the
finding of Lazarus J that the disputed issue was irr elevant, and held that the hearing
of oral evidence would not and could not have affected the outcome of the claim for
substantive relief and would have caused unnecessary costs to have been incurred
1 Wallach v Lew Geffen Estates CC 1993 (3) SA 258 (A).
and have involved unnecessary delay. Although I harbour ed similar reservations at
the time about this matter, I took account of the fact that the applicant was
unrepresented and did not have a full appreciation and understanding of the rules
and procedures of the Court.
9. I explained to the applicant that the su bject matter that the applicant wished to
introduce by way of oral evidence relating to the events in February 2024 on Clifton
4th Beach and the ensuing domestic violence proceedings during March 2024 might
become relevant if he was afforded a rescission a s prayed. The reason for the
potential relevance of those events is that the Court would then need to consider
what form of access, if any, it could order between the applicant and the children.
However, that enquiry, and any oral evidence thereon, would be redundant if the
relief sought in prayer 2 of his Notice of Motion was refused.
10. Counsel for the respondents, Ms Buikman, advised that her attorney was able to
provide to the applicant, the children’s legal representatives and the Court copies of
the tr anscripts of the proceedings in the Domestic Violence Court of Wynberg, as
well as the affidavits filed by the parties . She further advised that the respondents
would consider the attachments to the email correspondence which had been
addressed to my regi strar, as to whether those documents should also become part
of the record.
11. In those circumstances, I formed the view that if the subject matter which the
applicant wished to present was contained in the transcripts, affidavits in the
Magistrates Court, an d the aforesaid email attachments, then it may equally be
possible to dispense with oral evidence and simply permit the parties to address
argument on their contents.
12. Accordingly, I directed that the applicant’s application from the Bar for a referral
to oral evidence would be deferred for later determination during the course of the
three days set aside for the hearing, and that the parties should first address
argument in relation to the rescission issue and costs, whereafter this judgment was
to be delivered.
The relief sought by the applicant
13. The applicant prayed for Orders as follows:
“1. That the application be treated as urgent and that the non -
compliance with the rule relating to service and filing be condoned.
2. Further and/or alternative relief.
3. The primary relief sought is an order setting aside paragraphs 2.2,
2.3, 2.4, 2.6, 2.7 and 2.8 of the settlement agreement signed on 13 July
2023 to rescind the court order in making these paragraphs orders of this
Honourable Court.
4. The basis is urgent as I have been repeatedly threatened with
contempt of court and might be forced to leave the country.
5. I have not seen my daughters for three years.”
14. The applicant provided his email address as the address at which he would
accept notice and service of process in the proceedings.
15. In the applicant’s founding affidavit deposed on 11 June 2024, he states therein
that he is unemployed and provided a residential address in Bantry Bay, Cape Town.
In his replying affidavit, deposed on 19 August 2024 for a notary in Amsterdam, The
Netherlands, the applicant stated that he is a “ recently employed financial business
development professional, residing in Tamarin, Mauritius”.
16. The provisions of the consent paper that the applicant seeks to set a side are
paragraphs 2.2 to 2.4 and 2.6 to 2.8 under the heading “ Parental Responsibilities
and Rights” in the consent paper and read as follows:
“2.1 It is recorded that there are two minor children born of the marriage
between the parties, namely H A H (born xx xxx 2012) and B A H (born xx
xxx 2014) (“the minor children”).
2.2 Plaintiff shall have sole and exclusive parental responsibilities and
rights in respect of the minor children and act as the minor children’s sole
guardian as provided for in section s 18(2)(c), 18(3), 18(4) and 18(5) of the
Children’s Act, 38 of 2005, as amended (“Children’s Act”).
2.3 Defendant hereby consents to the termination of his parental rights
and responsibilities in respect of the minor children on date of signature of
this agreement, in accordance with the provisions of section 28 of the
Children’s Act, as amended.
2.4 In order to give effect to the provisions of paragraphs 2.2 and 2.3
above, Defendant hereby agrees and consents to the adoption of the minor
children by Mr RC (with identity number: xxxxxx xxxx xx x ) and who is in a
permanent long-term relationship with the Plaintiff (hereinafter referred to as
‘C’).
2.5 …
2.6 Defendant further undertakes to give his full cooperation and comply
with all necessary legal formalities apropos the adoption of the minor
children referred to above and to attend to signature of all and any
necessary documentation, as the case may be, to give effect to the aforesaid
within 7 days within date of written request to do so.
2.7 Should Defendant fail to comply with his obligations as set out
above, then and in that event, the Office of the Family Advocate,
alternatively the Registrar of the High Court, further alternatively, the Clerk of
the Children’s Court, is hereby irrevocably and unconditionally authorised to
attend to signature of all such documentation on his behalf.
2.8 Defendant confirms that he understands the relevant provisions of
the Children’s Act, which provisions have been explained to him and hereby
waives his right to rely on the provisions of the said Act, more in particular,
the procedures provided for therein, including those contained in section
233(8) thereof.”
17. The applicant’s Notice of Motion read with his founding papers and replying
affidavit make it plain that he expected the remaining provisions of the consent paper
and Court Order to remain intact. These include provisions where the parties waived
and abandoned all claims to personal maintenance against each other, and retained
all movable, immovable, corpor eal and/or incorporeal assets currently in their
respective possession or under their control as their sole and exclusive property, as
a full and final settlement of all proprietary claims arising from their marriage. It is
common cause that the further p rovisions in clause 5.1 to 5.4 of the consent paper
operated exclusively to the advantage of the applicant. They read:
“5.1 Plaintiff hereby waives all claims against Defendant in respect of
arrear maintenance for the minor children.
5.2 Plaintiff and Def endant agree to waive all and any costs orders
procured against each other in the above matter, including but not limited to
all and any interlocutory applications.
5.3 The parties hereby acknowledge that the aforegoing constitutes a full
and final settlem ent of all outstanding differences between them save and
except as herein provided, neither party shall enjoy any claim of whatsoever
nature against the other.
5.4 This agreement shall be of full force and effect as from the date of
signature of the last signing party notwithstanding the date of the final decree
of divorce.”
18. After describing the litigation, his grievances concerning Mr Smuts and Ms
Pettigrew, the terms of his employment and the impending birth of his son of his
relationship with his then fiancé, AP (now his wife), the applicant summarised the
basis for his case in his founding affidavit as follows:
“… the confluence of all of these events seemed to conspire all at once
against me. I became sickly and lacked any energy. This is very unlike me. I
have never been ill or lacking energy. I sank into a deep depression because
I had no money. I was deeply in debt, I was being repeatedly threatened that
I was facing jail for contempt of court if I did not make payment of an amount
that I simply was unable to pay. I was also facing the loss of my job and an
inability to take care of my new family. I was also unrepresented at a critical
time when the settlement was concluded. I was emotionally and mentally
overwhelmed, I felt paralyzed and could not apply my mind to this matter
with any degree of rationality at all.
I acknowledge that I signed the settlement agreement but I know now for a
fact that I was not a fit or rational state of mind when I did so. I probably
would have signed my own death warrant had it been put in front of me at
that moment. Signing the settlement agreement was totally inconsistent with
my conduct or my intentions up until that time. I had fought relentlessly for
my right to contact with my children to the point of literally bankrupting myself
in the process. I did not sign the settlement agreement believing that I
thought this was in the best interests of my children. I certainly did not agree
to sign it because I wanted to permanently distance myself from my children.
It simply made no ration sense to sign. The fact is, I was in an em otional
blackhole with no money, no job, no legal support, the looming prospect of
jail for contempt just as baby L had been born and with the belief that there
was no way out.
Had I not been facing such darkness, such unrelenting litigation, threats of
jail for contempt and relentless provocation day and night from Mr Smuts,
compounded by my fears of being separated from my newborn son L, I
would not have ever signed the settlement agreement. I love B and H
beyond all measure and until that moment there w as not a second that
passed where I did not want to see them, love them and be the father that I
am entitled and desperate to be to them.”
19. Before addressing the parties’ respective arguments, it is necessary to set out
some background and the litigation history.
Background
20. The applicant and the first respondent were married on 22 October 2011, at
which time the first respondent was pregnant with their first child, H. The parties
separated during 2017, at which time they were living in Mauritius.
21. The first respondent returned to South Africa with the children, and commenced
divorce proceedings in December 2018.
22. At the time of the separation, the children were aged five years and three years
respectively. Contact between the applicant and the children was characterised by
lengthy periods of separation which would have been particularly marked for children
of such young age. The guidance of ex perts was obtained. Two social workers
became involved. Dr Elsabe Durr -Fitchen delivered a report concerning contact on
20 June 2019, and Esna Bruwer delivered a more detailed report on 12 August
2019. Ms Bruwer observed that the children needed an oppor tunity to have an
ongoing post -divorce relationship with the applicant. Throughout her observations,
they projected a need to spend time with him and enjoyed time in his care. She
pointed out that a child is not able to distinguish their own real feeling s from the
feelings of the parent if they do not have emotional security in their primary parent
relationships. She remarked that although the applicant has portrayed parenting
traits that will foster healthy relationships with his children, significant e fforts would
have to be made to implement structure and predictability when the children are with
him. She further remarked that the parents had different childhood experiences and
they would have to do significant work to align their parenting and approa ches to
child rearing. She found that in respect of communication with the children, the
applicant may at times be inappropriate and ill -attuned. She reported that the
children have been exposed to adult conflict over a period of time, that no child can
be left unaffected by this, and that it should be acknowledged that particular attention
should be given by both parents to implement positive discipline structures. She
noted that within the first five years of both children’s lives, significant trauma w as
already experienced. She recorded that almost every person that had known the
applicant and the first respondent as a couple confirmed their volatile and toxic
marital relationship, but none had witnessed the children being harmed by anyone of
the parents. However, some collateral sources had witness ed the applicant having
road rage with the children in his car as well as turning from charming to very angry
in a short space of time. There were some reports made to her of recreational use of
marijuana. She assessed that the applicant tends to minimise difficult and important
relational issues and acts impulsively without considering consequences and
advised that when you are caring for two children in a divorce situation, it becomes
imperative to err o n the side of caution and apply your mind as a single parent. She
further observed that it was expected that both children would experience
anticipation anxiety before visits from the applicant as contact was not in a regular
and predictable pattern for them. She noted that research findings strongly suggest
that the single most important predictor of children’ s adjustment post separation or
divorce is the quality of the relationship between the parents. The antagonism,
mistrust and suspicion between the parties represents the single most important risk
factor for the children’s post -divorce adjustment. She re commended the applicant
undergo drug testing on his return to South Africa and that both parents receive
guidance in dealing with the movement of the children between homes. She further
recommended that the children needed to consult with a mutually agree d child
therapist in order to assist them with their own feelings in respect of the divorce and,
in particular, the movement between parents.
23. Later the same year, the first respondent brought an application in terms of Rule
43 of the Uniform Rules of Court for maintenance pendente lite for herself and the
minor children and a contribution to her costs in the divorce action. She also sought
an Order to appoint clinical psychologist, Mrs Leigh Pettigrew, to conduct a care and
contact assessment. The Rule 43 application served before Gamble J. Maintenance
pendente lite and a contribution to costs was ordered and the applicant was ordered
to pay the costs of the Rule 43 application. However, the appointment of Ms
Pettigrew was postponed sine die. Ms A Heese, a practising advocate and member
of the Cape Bar, was appointed as mediator to assist the parties to formulate and
implement the terms of any parenting plan or order in regard to the parties’ parental
rights and responsibilities to the children. The fir st respondent was ordered to set
down the application to appoint Ms Pettigrew on ten days’ written notice to the
present applicant, only after the mediator certified in writing that the issue of the
applicant’s care and contact with the children remained u nresolved. The applicant
had opposed that application, but it is unclear on the current papers which particular
aspects of the relief he was resisting.
24. Conflict between the applicant and respondent concerning contact continued.
Further approaches were ma de to this Court. On 25 March 2020, during the Covid
pandemic, at the instance of the applicant, Sievers AJ granted an Order defining
weekly overnight contact periods between the applicant and the children as well as
telephonic and video contact. That Or der also provided that in the event of the
applicant’s failure to return the children, the respondent would be entitled to enlist the
services of the Sheriff of the High Court, alternatively, the SAPS to assist with their
return. The Order further provided that following the period of the national lockdown,
the applicant would be entitled to have sleepover contact with the children for four
consecutive days after which the contact arrangements would be revisited.
25. Barely a month later, the application was r evisited by Hack AJ, after taking
account of the exception contained in Direction 1(c)(i) of the Directions issued by the
Minister of Social Development dated 7 April 2020 being part of the Regulations
made under Section 27 of the Disaster Management Act, 57 of 2002. This afforded
the applicant extended in -person contact with the children, which would take place
mid-week and on three consecutive weekends. The Order further provided that if the
lockdown were extended, the schedule would apply save that the weekend contact
would take place only on alternate weekends commencing 15 May 2020. Costs were
reserved for the divorce action.
26. Mediation regarding contact failed. The first respondent appointed Mrs Leigh
Pettigrew, an educational psychologist , who is v ery experienced in child care
matters. The first respondent approached the Court again on notice to the
respondent, who appeared in person. An Order was granted by Henney J directing
the applicant and the respondent to cooperate with Ms Pettigrew who had been
appointed by the applicant to conduct an investigation into the best interests of the
children and who was to make recommendations regarding the parties’ parental
responsibilities and rights in respect of the children. The first respondent was to bear
Ms Pettigrew’s costs. Pending finalisation of Ms Pettigrew’s investigation, the Order
by Hack AJ granted on 15 April 2020 would remain in force. The applicant herein
was directed to pay the costs of that opposed application.
27. Ms Pettigrew commenced her investigation, which she was required to do
urgently. In the meantime, the subject matter of the Rule 43 Order was revisited by
the Court. A further opposed application was brought in which the applicant herein
again appeared in person. That resulted in an Order granted by Goliath DJP on 4
June 2020 directing the applicant to make payment of certain outstanding amounts,
and modifying the Rule 43 Order granted by Gamble J by reducing the extent of the
applicant’s obligations. Each party was to pay their own costs in the application.
28. On 18 September 2020, Ms Pettigrew delivered her interim report , followed by an
addendum on 21 September 2020, both of which were furnished to the parties. Ms
Pettigrew comprehensive ly documented the history of the disputes between the
parties and the challenges encountered by the children. She recommended that the
applicant undergo a full forensic assessment with a psychiatrist in order to determine
his capacity to co -parent, make j oint decisions, make sound and rational decisions
when the children were in his care and to identify possible recommendations that
may assist the applicant in the children’s best interests. Initially, the applicant refused
to undergo the forensic psychiat ric assessment. The first respondent reacted by
instituting an urgent application in which she sought an Order that the applicant be
permitted to exercise only supervised contact with the children, as well as telephonic
contact. The applicant was given n otice of this application which served before
Samela J on 3 December 2020. The applicant arrived at Court on the hearing date
but was not present when the Order was granted by Samela J. In the addendum to
her interim report, Ms Pettigrew had expressed her “deep concern that the children
may be at risk in [the applicant’s] care until such time as the matter has been fully
assessed by the forensic psychi atrist …”. The addendum recorded that within hours
of releasing her interim report, she had received 30 WhatsApp messages from the
applicant, and within a space of 48 hours that had amounted to 122 WhatsApp
messages, four voice recordings and eight emails sent by the applicant to her. She
acknowledged that her interim report was very painful for the applica nt to read and
that her recommendations were not what he had expected. She brought attention to
her concerns about his impulsivity, and the possible effect of reactivity on his
children, then only eight and six years respectively. She recorded “ instead of
processing the report over a period of time, reflecting on comments made and taking
out of the report those comments and opinions that are helpful for his development,
and considering over time his best possible approach to the assessment, within half
an hour of receiving the report, [the applicant] was already on the offensive ”. From
this, he appears unable to control his impulses . She further expressed the concern
that this difficulty and the risk that when exercising his forthcoming contact he may
on the spur of the moment discuss the contents of the report in an impulsive
moment. Ms Pettigrew turned out to be perspicacious in this observation. The
applicant indeed confronted H about her contributions to the report. This is contrary
to the children’s interests - to involve them in the fray between their parents - and it is
concerning that he ignored Ms Pettigrew’s concern.
29. The applicant contends that the first respondent contrived to take an Order in his
absence and, so he implied, thereby obtain the perceived advantage of supervised
contact. It is not necessary for purposes of this application to resolve the factual
dispute regarding the circumstances under which an Order was granted in the
applicant’s absence. Counsel for the res pondents advised me from the Bar that the
applicant had immediately applied for a reconsideration of Justice Samela’s Order
and that application which served before Papier J was unsuccessful. The applicant
did not dispute this information. It bears mention that the Order of Samela J records
that there was no appearance by the applicant , postponed the application sine die to
enable Ms Pettigrew to finalise her report and directed that the in -person contact
between the applicant and the children would be su pervised pending the finalisation
of Ms Pettigrew’s report.
30. Subsequent thereto over the period from February 2021 to June 2021 , the
applicant exercised regular contact with the children which was supervised by a
social worker, Mineke Toerien. He has attac hed her reports on such supervised
contact to his founding affidavits, which reflect that the contact proceeded smoothly
and without incident. However, Ms Pettigrew’s final report records information given
to her by the children concerning abusive conduct that took place when Ms Toerien
could not witness it, for example when she was in the bathroom. The applicant
denies any such abuse, and similarly denies complaints of abuse directed,
particularly at H, during the parties’ marriage when they still cohabi ted with each
other. This too was not a dispute that was necessary to resolve in order to determine
the relief sought by the applicant in this application. Notwithstanding, the applicant
was eager to ventilate each and every one of the disputes which aro se from the
various expert reports and affidavits that had been filed in the various proceedings.
Much of the Court time in the hearing of this application was devoted to explaining
that these collateral disputes were not necessary to determine and did not assist his
case, nor did they assist the Court to determine the relief sought.
31. Ultimately, by March 2 021, the applicant submitted himself to assessment by a
forensic psychiatrist, Dr Konrad Czech. The applicant is critical of the circumstances
under which the investigation by Dr Czech took place during the pandemic, at which
time wearing of masks and soc ial distancing was still peremptory. Dr Czech’s report,
finalised on 25 August 2021, makes it clear that, in addition to his consultations with
the applicant, he also conferred with Ms Pettigrew and Ms Raphael. Dr Czech’s
findings were that the applicant has maladaptive personality traits, that he lacked
insight and judgement and that he was unable to recognise his role in the difficulties
that had occurred in his relationship with the children. He recorded that the applicant
rejected the idea of enterin g into psychotherapeutic treatment which would be the
appropriate manner to assist him to modify his behaviour in relation, amongst other
things, to the children. His view was that the primary consideration did not lie with the
applicant’s psychiatric status, but rather with his expressions of rage or anger to the
children and his hostile behaviour towards them (which had been documented in Ms
Pettigrew’s interim report). For this reason, Dr Czech found that the children’s fear of
him and their refusal to have contact with the applicant justified the need for
supervised access irrespective of any diagnostic issues.
32. On 14 September 2021, with the benefit of Dr Czech’s report, Ms Pettigrew filed
her final report as contemplated in the Order of Samela J. She recommended that
given the serious concerns about the applicant’s behaviour towards the children, that
the first respondent should be granted sole parental responsibilities and rights and
that the applicant’s contact with the children should continue to be supervised. The
applicant had not had contact with the children since June 2021. He claimed that he
could not afford the costs of supervision. As it turns out, he had also stopped paying
maintenance for the children in terms of the Rule 43 Order grante d by Gamble J, as
varied by the Order of Goliath DJP.
33. In the period between the delivery of Ms Pettigrew’s interim report and her final
report, the first respondent’s relationship with the third respondent , which had
commenced in 2017, had developed to the extent that she and the children moved
into the third respondent’s home during December 2020.
34. What followed is the development of a family unit comprised of the respondents
and the children. The third respondent, who is apparently a man of some means,
arranged for them to travel to the Seychelles on holiday in the period between 23
September 2021 and 10 October 2021. The applicant, as co -guardian of the
children, was allegedly uncooperative about affording his consent. The first
respondent accordingly a pproached the Court and secured an Order on 21
September 2021 granted by Erasmus J authorising her to travel with the children to
the Seychelles for the holiday period and to sign all such documents as may be
necessary to facilitate the children’s travel, and dispensing with the applicant’s
consent and signature for that purpose. Each party was to pay his/her own costs of
that application.
35. Following upon Ms Pettigrew’s final report, the first respondent again approached
the Court. The applicant was served with the papers but did not appear at the
hearing before Mangcu -Lockwood J on 15 November 2021. An Order was granted
providing that the respondent and applicant would be entitled to act as co -guardians
in respect of the children and authorising the first respondent to travel with the minor
children outside of the borders of South Africa for the purposes of holidays provided
that she provided him with 14 days’ notice of her intention to do so and the details of
the proposed holiday. The first respondent w as authorised to unilaterally sign any
documentation and take any action necessary to obtain, procure and/or renew the
children’s travel documentation. The Order further provided that the children shall
primarily reside with the first respondent, subject to the applicant’s rights of
supervised contact. The first respondent was granted sole and full parental rights in
respect of the children, enabling her to make all decisions regarding the children’s
best interests. The Order further provided that the ap plicant shall exercise
supervised contact with the children as determined by Ms Pettigrew, if and when he
indicates his intention to exercise such contact, and that he was to pay all costs
relative to the services of a social worker to be appointed by Ms P ettigrew in order to
facilitate supervised contact. The applicant was also ordered to pay the costs of that
application on the scale as between attorney and client. This Order ( “the Mangcu-
Lockwood Order”) is significant for purposes of the present appli cation because, in
final terms, it deprived the applicant of his parental rights in relation to the children ,
save for a residue of his co -guardianship rights, which themselves had been diluted
by the Orders permitting the first respondent to travel abroad with the minor children
(on the defined conditions) without the necessity of obtaining the applicant’s consent
thereto.
36. The applicant had, by this time, returned to Mauritius.
37. On 17 December 2021, Mr Stephen Thomson of Thomson Wilks Inc. placed
himself on record as the applicant’s attorney.
38. The applicant appointed his own expert, Ms Toni Raphael, to conduct an
assessment. Her report was filed on 24 October 2022. She recorded that the
children had not had contact with the applicant since 24 June 2021 and that H was
refusing all contact. The applicant cited the cost of supervision as his reason not to
continue with supervised contact. Ms Raphael observed that when contact had been
exercised, there had been pr olonged periods without any, or with spor adic contact
with the applicant, during which time there was an ‘emotional vacuum’ for the
children. In his absence, the children had to re -group, adjust, and get on with their
lives with their mother. She reported that the onus was on the applicant to e stablish
and maintain the children’s trust, whether by continuing the supervision process with
Ms Toerien, maintaining regular contact or engaging in a personal therapeutic
process himself. She stated that the applicant’s resistance to taking responsibili ty for
the breakdown of his relationship with the children, and his apparent failure to
comply with the recommendations aimed to assist him is a major setback to the
remediation of the current situation. In order to move forward, the applicant would
first have to take responsibility and focus on his part in what has happened. She
concluded that the voice of the children cannot be dismissed or ignored, and that her
recommendations were not materially different to those of Ms Pettigrew.
39. As mentioned above, the applicant had defaulted on his maintenance obligations.
On 28 February 2022 the first respondent launched a second application to hold the
applicant in contempt of Court as a result of his failure to pay maintenance. The
applicant opposed the applica tion alleging that he could not afford the maintenance
and that he was not deliberately in default of the Rule 43 Order.
40. By agreement between the parties, the contempt application was postponed for
hearing on 8 March 2023. The parties undertook to engage in mediation with Ms
Heese during February 2023.
41. By agreement between the applicant and counsel for the respondents, the record
in this matter was supplemented during the hearing with seven exhibits numbered A
to G, one of which was a pack of documents whi ch had served before Magistrate
Plaskett in the Wynberg Magistrates Court during the domestic violence proceedings
in March 2024. That pack included a draft consent paper from the first respondent
which was provided to Ms Heese on 1 March 2023 under cover of an email from the
first respondent’s attorneys , drawing attention to the provision in the consent paper
for adoption of the minor children by the first respondent. The draft consent paper, as
counsel for the respondents submitted, is virtually identic al to the consent paper
which was ultimately executed by the parties on 13 July 2023. The only discernible
difference is that the executed consent paper includes an additional sub -clause 2.5
recording that “ plaintiff and the minor children are and have be en cohabiting with C
[the third respondent] for many years ”. The applicant does not require the Court to
“rescind” that provision.
42. On 2 March 2023, Ms Heese addressed an email to the attorneys for the
applicant and the attorneys for the first respondent stating that “ pursuant to the
mediation sessions held, it is my understanding that the parties are considering a
settlement on the terms as set out in the dra ft consent paper annexed hereto …
Please advise me as soon as possible whether a settlement on this basis could be
achieved, alternatively, provide any comments you may have”. The attached consent
paper differed in some respects from that provided by the first respondent on the
previous day, but significantly , it did include the same clauses 2.1 to 2.4 and 2.6 to
2.8 which feature in both the first respondent’s draft consent paper and the duly
executed consent paper of 18 July 2023.
43. On 2 March 2023, the ap plicant’s then attorney, Mr Thomson, addressed an
email to Ms Heese stating:
“Are you serious? I cannot in good conscience recommend this capitulation
to C [the applicant] which is something I believe he will live to regret.
How has this matter got to the point where you are recommending that he
forfeit his parental rights and even beyond that, recommend that he consent
to the adoption by RC [the third respondent] of his two daughters.
I think I need to sit with you to understand how after a single session with
each parent this is the outcome you recommend.”
44. Ms Heese immediately responded by email, stating:
“As mediator it is not my function to make any recommendation to either
party and I certainly did not do so.
I conveyed an offer that was made, and as I was obliged to do, I explained
the repercussions to all involved and advised them to take advice from their
legal representatives before making any final calls, and explained that a draft
consent paper would be sent to all the attorneys to afford them an
opportunity to advise prior to any agreement being reached.
You are most welcome to call me to discuss.”
45. It is evident from this exchange of emails between the applicant’s attorney and
the mediator, which was copied to the applicant’s senior and junior counsel, as well
as the Cape Town attorney acting for the applicant, that the applicant’s legal
advisors were alive to the salient provisions of the consent paper which are now the
subject of this application. It is also evident that the applicant received the benefit of
explanations from the mediator on their terms, and that he had , at the very least, the
opportunity to take advice from his legal representatives. Mr Thomson deposed to an
affidavit on 19 March 2024, apparently for the purposes of the domestic violence
proceedings, in which he explained the circumstances under which he withdrew as
the applicant’ s attorney on 30 June 2023 . He described his experience of the
applicant in the preceding period. Mr Thomson did not say in his affidavit that he
failed or neglected to afford advice to the applicant in the period from 2 March 2023
to 30 June 2023. Plainly, the affording of such advice would have fallen within his
mandate as the applicant’s representative in the divorce and ancillary proceedings ,
and he was applying his mind to the proposals mooted in the course of mediation by
Ms Heese.
46. While a Court is slow to draw inferences in motion proceedings, it tests the
bounds of credulity to expect the Court to accept that a senior attorney of Mr
Thomson’s standing would have failed and neglected to explain the meaning and
import of the clauses in question to t he applicant. That is the position contended by
the applicant.
47. The contempt of Court application was heard on 8 March 2023 pursuant to which
Sher J found the applicant to be in contempt of Court and ordered him to pay the
sum of R616 985.39 together with interest thereon on or before 8 July 2023, failing
which the first respondent was given leave to set the matter down on the same
papers, duly supplemented for the Court to determine what sanction should be
imposed upon the applicant. Sher J ordered that t he applicant pay costs, including
reserved costs, on an attorney and client scale.
48. The applicant did not make payment as ordered , nor any part of the sum ordered
by Sher J.
49. Instead, via Ms Heese, he provided a consent paper that he had signed which Ms
Heese transmitted to the first respondent on 23 June 2023. The first respondent
rejected that offer and so advised Heese on 29 June 2023.
50. The following day, 30 June 2023, the applicant’s attorneys of record withdrew.
51. On 3 July 2023, the first respondent’s att orney wrote to Ms Heese, reiterating her
previous settlement proposal and proffering the reasons why she believed the
settlement to be in the best interests of the minor children. The first respondent had
not then re -enrolled the contempt of Court applica tion for the hearing regarding
sentence.
52. On 5 July 2023, Ms Heese sent an email to the first respondent enclosing an
email from the applicant wherein he stated the following:
“I agree to proceed as Smuts had presented. Can you ask him to put
together the final and share signed copy (this one still has some red drafts
and I assume we do not have to refer to specific investments as the
agreement seems all encompassing)
I am not i n SA and won’t be for the foreseeable future. So can we use
DocuSign for my signature – or should I post wet ink but with non -SA
notaries?”
53. It was thus known at that time that the applicant was not within South Africa,
although his whereabouts were not disclosed.
54. The deadline by which the applicant was required to make payment as provided
in the Order of Sher J arrived on 8 July 2023, without payment being made.
55. On 10 July 2023, the first respondent addressed a letter to Ms Heese enclosing
the consent pape r as she had proposed, and to which the applicant was apparently
amenable as intimated in the above-quoted email to Ms Heese.
56. On 13 July 2023, Ms Heese returned the duly signed consent paper that she had
received from the applicant. This was in fact a cop y of the consent paper as the
original was expected to be sent back to South Africa via courier. It transpires that
the original consent paper has gone missing . However, nothing turns on this as the
Court was prepared to grant the decree of divorce incor porating the consent paper ,
having regard to a copy thereof duly stamped by the Family Advocate. It bears
mention that the applicant signed the consent paper on 13 July 2023, omitting the
place of signature where provided for on the final page thereof. His signature was
witnessed by AP, who is now his wife, and MP who is his brother-in-law.
57. The applicant also complied with a request to provide a signed notice of
withdrawal of defence and counter -claim in the divorce action which he duly did on
13 July 2023.
58. The divorce action was then heard on an undefended basis before Slingers J on
18 July 2023. The consent paper was made an Order of Court. At that date, the
applicant had not seen the children for a period of almost two years.
59. On 28 February 2024, an i ncident occurred at Clifton 4 th Beach that became the
subject of the domestic violence proceedings instituted by the first respondent on
behalf of the children. An interim Order was granted on 28 February 2024 and
served upon the applicant. He anticipate d the return day to 12 March 2024 and
represented himself. He had prepared an affidavit but it had not been deposed
before a Commissioner of Oaths. The presiding Magistrate, Ms Plaskett, accordingly
took his oath in order to admit that affidavit into the record of those proceedings.
60. By agreement, the affidavits filed by both parties in those proceedings as well as
the transcripts of the hearings on the 12 th and 20 th of March respectively were
introduced as exhibits and included in the record in this matter. I have noted that the
contents of the applicant’s opposing affidavit in the Magistrates Court proceedings
found their way into and seem to be the foundation for his founding affidavit in the
present application. Mrs Hannington also filed an affidavit, and its contents were
replicated in her affidavit in this matter deposed on 20 August 2024.
61. After hearing full argument, the Magistrate postponed the application for
judgment and extended the interim Order to 20 March 2024. The transcript reveals
that the applicant stated to the Magistrate that his “ whole intention was to stop the
adoption”. The Magistrate correctly pointed out that he was taking issue with the
High Court Divorce Order and consent paper and the only Court that could give him
relief was the High Court. He responded that he would proceed in the High Court.
When delivering her judgment, the Magistrate stated that she had discerned from
more than one person that the childre n had a negative reaction upon seeing the
applicant on the day in question, that it affected them profoundly afterwards, and that
the applicant knew or ought to have known to keep his distance, despite the fact that
he had not planned to be in the same pla ce as the children and the respondents on
the day in question. The Court granted a final Protection Orders in respect of H in
one Order and in respect of B in the other Order, interdicting him from entering their
schools and attending any of the ir school functions or extra -mural activities. These
orders amended the interim Protection Orders which had incorporated wider
restrictions. Nevertheless, the applicant has taken no steps to set aside the final
Protection Orders on review or appeal.
62. On 11 April 20 24, the respondents’ attorney, Mr Smuts, addressed an email to
the applicant drawing his attention to paragraph 2 of the consent paper made part of
the Divorce Order. He stated that his clients, the respondents, are in the process of
attending to the nece ssary formalities in the adoption of the children by the third
respondent.
63. The appropriate Form 61 (consent by parent to the adoption of a child) in respect
of each of the children was enclosed for the applicant’s signature within seven days,
failing which Mr Smuts held instructions to invoke the provisions of the Order.
64. It is ap parent from the pack of correspondence between the applicant and Mr
Smuts both prior and subsequent to the 11 April 2024 letter that the applicant had
formed the view that he was entitled to refuse his co -operation in the adoption
formalities. He contends that Mr Smuts threatened him with incarceration for
contempt of the Divorce Order, which required such co -operation. I perused that
correspondence and find nothing untoward in Mr Smuts’ letters and emails. He did
little other than record the facts and assert his clients’ rights. He exercised
commendable restraint by ignoring the insults in the applicant’s emails about his
professionalism and the accusation that he was bullying the applicant. I did,
however, discern a defiant tone in the applicant’s emails to Mr Smuts.
65. I was informed from the Bar by counsel for the respondents that th e present
application was served upon first respondent only on 11 June 2024, by which time it
had been set down on the opposed motion roll on 14 June 2024. The applicant d id
not dispute th is account. He offered no explanation as to how his Notice of Motion ,
which intimated a set down date of 14 May 2024, had resulted in a set down a month
later, on such short notice to the first respondent.
The applicant’s case
66. The applic ant had intimated during the domestic violence proceedings that his
case in this matter would be founded on the basis that he was under duress at the
time of executing the consent paper on 13 July 2023.
67. The party seeking to set aside an agreement on the basis of duress must allege
and prove that there was a threat of considerable evil to the person concerned or to
their family, that the threat was of an imminent evil and induced fear, that the threat
was unlawful or contrary to good morals, that his fear was reasonable and that the
contract was concluded as a result of the duress.2
68. No allegations were made on the papers that would support any finding of
duress. Instead, the applicant’s affidavits and his submissions in argument were
directed at a case that he was not of sound mind at the time that he signed the
consent paper. The a pplication was accordingly determined on the basis that his
cause of action was the absence of his mental capacity at the time of executing the
contract. The reasons the applicant advanced were that he was not legally
represented at the time that he signe d as he was unable to afford representation,
and he was outside of the country. The applicant stated during argument that he was
in Germany at the time. He accepted that this was not evident to the first respondent
who had presumed that he was in Mauriti us. However, nothing turns on precisely
where he was located at the time of execution of the agreement.
2 Arend v Astra Furnishers (Pty) Ltd 1974 (1) SA 298 (CC) at 306A-B.
69. The applicant’s affidavits state that he signed the consent paper as he was under
threat of incarceration given this Court had found him to be in conte mpt of Court for
failure to pay maintenance in respect of the children. An Order had been granted on
8 March 2023. He alleged that his financial circumstances were dire at that time due
to the impact of the Covid pandemic, that he had been informed in May 2023 that he
was to be made redundant, and he was thereafter retrenched. His affidavits ,
however, provide no detail whatsoever of his assets, liabilities, income and
expenditure during the six and a half months in 2023 preceding the execution of the
consent paper (or earlier), other than to state that he had incurred debt to his legal
representatives in the order of R600 000.00 and he had been ordered by Sher J to
pay the arrear maintenance and costs due to the first respondent. From the Bar, he
advised that he had received a retrenchment package from his former employer in
Mauritius. However, no details of this had been provided in the papers.
70. With regard to his state of mind at the time of executing the consent paper, he
alleged that he was suffering f rom deep depression and that he was not in a fit or
rational state of mind. He contended that Ms Pettigrew’s reports support ing the
award of sole parental responsibilities and rights to the first respondent, were biased
and dishonest , because , so he alleg ed, she was a paid expert hired by the first
respondent, and as such was a party to an agenda between the respondents ’
attorney, Mr Smuts, and the respondent s directed at depriving him of those
responsibilities and rights.
71. He also made extensive reference to alleged provocation and threats at the time
by Mr Smuts which he contends placed great pressure upon him.
72. He relied also upon the affidavit of Mr Thomson , his former attorney. The
respondents’ counsel submitted that that affidavit had been deposed for purposes of
the domestic violence proceedings and had not again been verified on oath for the
purposes of these proceedings, that it does not constitute evidence before the Court
and fell to be struck from the record. However, this submission was overtaken by the
agreement between the parties that the affidavits in the domestic violence
proceedings could be admitted into the record.
73. Mr Thomson did not hold himself out to be an expert in mental health. Mr
Thomson had become frustrated with the applicant’s instability and his total inability
to pay attention or heed his advice. He had explained that the applicant became
increasingly frustrated as the litigation progressed, and his mood w as one of
desperation. His account accords, in some measure, with the applicant’s account of
his state of mind. However, his opinion about the applicant’s state of mind up to 30
June 2023, when he withdrew as his attorney , is inadmissible. He is not qua lified to
proffer evidence on mental health. In any event, Mr Thomson has not testified about
the applicant’s mental health at the time the consent paper was executed. That is the
relevant time to evaluate his mental health: Innes CJ held in Pheasant v Warne 1922
AD 1 481 at 488 to 489:
“… a court of law called upon to decide a question of contractual liability
depending upon mental capacity must determine whether the person
concerned was or was not at the time capable of managing the particular
affair in question – that is to say whether his mind was such that he could
understand and appreciate the transaction in which he purported to enter …
and the onus of establishing defective mentality must lie upon the side which
relies upon it.”
74. Mr Thomson’s affidavit simply does not assist the applicant’s cause in this matter.
Similar considerations apply to the letter from the applicant’s current therapist, a Mr
Nikolaou. His credentials are not made clear, nor for how long he has treated the
applicant. He has not deposed to an affidavit. His assertion that the applicant was
under significant psychological distress at the time of signing the consent paper
seems to derive only from information provided by the applicant. He did not observe
him at the relevant ti me. The applicant clarified from the Bar that he has not met Mr
Nikolaou, who is based in the United Kingdom, and his counselling sessions take
place virtually.
75. Mr Thomson goes on to state that he had been willing to depose to an affidavit to
assist the a pplicant in the domestic violence proceedings because a “ well-
orchestrated and well -funded legal campaign ” had been waged by the respondents
on the applicant to exert pressure upon him to sign the consent paper by persuading
him to agree to the third respo ndent’s adoption of the children in exchange for
relinquishing the first respondent’s financial claims against the applicant.
76. Respondents’ counsel correctly submitted that if Mr Thomson had harboured
concerns about the applicant’s mental state and his abil ity to give him instructions,
he could have applied for the appointment of a curator ad litem to the applicant, yet
no such application was ever brought. Furthermore, Thomson did not communicate
any such concerns to the first respondent’s attorney or to the mediator, Ms Heese, at
the time that the consent paper was being considered in late June 2023.
77. I have quoted above from his email to Ms Heese of 2 March 2023 in which no
reference is made to the applicant’s mental state.
78. Of more cardinal importance is the fact that Mr Thomson did not and could not
provide any evidence regarding the applicant’s state of mind at the critical date of 13
July 2023 when the consent paper was signed. His affidavit accordingly does not
assist in establishing the applicant’s state of mind on 13 July 2023 when the consent
paper was signed, in particular, to support any finding that the applicant was
incapable of appreciating what he was consenting to when he was so signing.
79. The history whi ch I set out above supports a contrary finding that the applicant
well knew and understood what he was doing, and understood that the terms of the
consent paper operated to his advantage.
80. The applicant has failed to discharge his onus, and accordingly the application
must be dismissed.
Costs
81. In her written submissions dated 27 August 2024, counsel for the respondents
asked for an Order that the application be dismissed with costs. In her oral
submissions, she moved for the costs to be ordered on a punitiv e scale as between
attorney and client. She also requested an Order that the applicant be prohibited
from bringing further proceedings in relation to the children and/or against the
respondents until the costs orders in this application have been satisfied.
82. In motivating the punitive scale, she referred to the manner in which the
application had been conducted, with the respondents having been brought to Court
on extremely short notice in June 2024 and thereafter faced shortly before the
hearing with the p rospect of the referral of the matter to oral evidence and the
protraction of the proceedings. She referred to the fact that in all the ancillary
applications to the divorce proceedings to which I have referred above, no orders as
to costs were made in fa vour of the applicant. Costs orders were either that each
party would bear their own, or that the applicant was directed to pay costs. The
Mangcu-Lockwood Order had all but deprived the applicant of his parental
responsibilities and rights and had ordered costs in favour of the firs t respondent on
the scale as between attorney and client. The first respondent had, as part of the
composite package in the consent paper, waived her right to recover those costs
from the applicant, as set out in the quoted cl auses above from the consent paper.
She traded off her personal financial interests in order to secure the children’s
position and to protect their best interests, yet she had been obliged to obtain
Protection Orders on behalf of the children from the Mag istrates’ Court, where no
costs orders were made, and to incur costs in the present application.
83. It is an established principle that by reason of special considerations arising
either from the circumstances which gave rise to the proceedings or from the
conduct of the losing party, the Court in a particular case may consider it just, by
means of such Order to ensure more effectually than it can do by means of a
judgment for party and party costs that a successful party will not be out of pocket in
respect o f the expense caused by the litigation. 3 An award of attorney and client
costs will not be granted li ghtly. The Court’s discretion to order the payment of
attorney and client costs includes all cases in which special circumstances or
considerations justify the granting of such an order. No exhaustive list exists.4
3 Nel v Waterberg Landbouwers Ko-Operatieve Vereeniging 1946 AD 597 at 607.
4 Rautenbach v Symington 1995 (4) SA 583 (O) at 588A-B.
84. In exercising my discretion, I have taken into account the following factors:
84.1 The application was ill -considered and stillborn from the outset,
given that the applicant failed to simultaneously apply (to the extent it was
possible to do so on any basis) to set aside the Mangcu-Lockwood Order.
Even if successful in the primary relief that he sought herein, pursuant to that
Order, the first respondent would remain the sole holder of parental
responsibilities and rights.
84.2 The applicant sought to retain for himself the advantage s
conferred by the consen t paper, namely the extinction of all his debts owed
to the first respondent, yet there was no tender in his papers to settle those
debts. When it was pointed out during argument that he could not rescind
only part of an agreement, but would have to accep t the rescission of the
agreement in its entirety, and thereby lose the financial advantages afforded
to him, he did not take the opportunity to make a concrete, detailed offer to
restore that which would otherwise have been due to the first respondent ,
but for provisions of the consent paper.
84.3 The applicant evinced his intention to bring these proceedings
as early as 28 February 2024 yet delayed serving papers upon the first
respondent until 11 June 2024, on three days’ notice of the hearing set down
on 14 June 2024. The urgency with which he approached the Court was
entirely self-created.
84.4 Notwithstanding, he was accommodated by the Court with a
date on the opposed motion roll only three months later.
84.5 Having been afforded this indulgence, he sought by way of an
email addressed unilaterally to my registrar on 29 August 2024, to obtain a
postponement of the proceedings on the strength only of his email request
that he could refer the matter to trial / ora l evidence. The applicant has
persisted until time of writing this judgment in his attempts to communicate
with me ex parte despite my admonitions to desist. This is ironic and peculiar
given his accusation that there was no transparency in the communica tions
between Mr Smuts and Ms Pettigrew.
84.6 In order to meet his concern that the affidavit of Mrs
Hannington filed on 28 August 2024 gave rise to alleged disputes of fact,
and to mitigate prejudice to the opposing party occasioned by any action of
the procee dings and/or postponement thereof, I received by agreement
between the parties seven exhibits referred to above which added a further
264 pages to a record already in excess of 1 000 pages in length. This
additional material had to be assimilated at speed during the adjournments
and overnight between the first and second day of the hearing. While the
respondents do not complain of prejudice occasioned to them, it was
undoubtedly inconvenient, as it was to the Court.
84.7 The applicant’s papers did not deal in any respect with the
impact upon the children of the relief that he sought. He explained in
argument, as also on affidavit, that he did not wish to change the existing
“arrangements”, namely that respondents continue to bear all the parental
responsibilities and rights for the children, but he simply wanted to be able to
have a relationship with them and facilitate the children having a relationship
with his infant son L and the applicant’s extended family. However, he
provided no detail of any of the wor k that he had done to develop his own
insight and judgement, and his parenting skills, as had been recommended
by virtually every mental health professional being engaged in the matter
including his own appointed expert, Ms Raphael . He alternately said th at he
would do so, and that he had done so. He simply did not engage with the
evidence of Mrs Hannington that the children have repeatedly, consistently
and as recently as 27 August 2024 articulated to her their fear of the
applicant, that they were resol ute in their resistance to any contact with him
and that they were very happy about their pending adoption by the third
respondent. When I suggested to him that he could, in the face of this
undisputed evidence, convey a message to his children that he lo ved them,
cared for them and take s account of their wishes, by signing the adoption
papers. He responded that he read the situation entirely differently, and he
required the children to tell him their wishes directly. This response exhibited
a startling lack of empathy from the applicant . It resonates with the findings
of the mental health profe ssionals engaged in the course of the divorce
proceedings.
84.8 The applicant focused in the proceedings on his own desires
and needs rather than the best interests of the children , which should have
been of paramount concern to him.
84.9 The applicant maintained hi s position as a purported victim,
and did not appear to genuinely take responsibility for his own actions and
inaction.
84.10 The applicant cast unwarranted aspersions on the
professionalism, integrity and independence of Ms Pettigrew, Mr Smuts, Ms
Heese (“ she g ave mixed messages ”) and the children’s legal
representatives, whom he accused of being aligned with respondents.
85. In short, I consider that the institution and conduct of these proceedings was
vexatious. In the circumstances, I am satisfied that an award of attorney and client
costs in favour of the respondents is justified.
86. On behalf of the children, Mr Pincus submitted that the first respondent’s decision
to appoint legal representation was a wise one, given the reports that had been
made by the children to Ms Pettigrew regarding abuse at the hands of the first
respondent. I must emphasise that in considering this submission, I make no finding
the veracity of the children’s allegations, as it was not necessary to do so for
purposes of these proceedings. I agree with Mr Pincus’ submission.
87. From about the time when his contact with the children became supervised, the
applicant advanced a narrative in his correspondence, repeated in his affidavit, that
the respondents, aided and abetted by Mr Smuts, were co nspiring to deprive him of
all contact, and that the children were being schooled or coached to make reports to
Ms Pettigrew, to this end. It was a salutary measure to avoid questions of such
influence by appointing an independent person to represent the children. To my
mind, this also afforded the applicant a measure of protection from any improper
influence by the respondents (of which I could find no convincing evidence on the
papers).
88. Mr Pincus sought an order that the applicant be directe d to pay the children’s
legal costs, including the costs of two counsel. This was sought on a party and party
scale. In regard to employment of two counsel, he submitted that it was justified due
to the difficulty of the matter, the serious allegations t hat had been made, and the
complicated and unusual history of the matter. He pointed out that Ms Thiart was
obliged to attend the hearing by virtue of the Order made by Justice Wille. Mrs
Hannington explained in her affidavit of 28 August 2024 that she h ad taken the
decision to brief Mr Pincus to lead Ms Thiart. I cannot fault her judgment in doing so.
The litigation has a lengthy history, the record was voluminous, and it is a matter of
substantial importance to the children so as to merit their represe ntation by a senior
and very seasoned practitioner in family law such as Mr Pincus.
89. I am satisfied that the applicant should bear the children’s costs on a scale as
between party and party. My Order differentiates between the applicable scale in
relation to senior and junior counsel’s fees.
I order as follows:
1. The application is dismissed.
2. The applicant shall pay the costs of the first and third respondents on the
scale as between attorney and client, such costs to include the reserved
costs of the hearing on 14 June 2024 and the case management conference
before Justice Wille on 16 June 2024.
3. The applicant shall pay the children’s costs in this application, including
the costs of the case management conference, and including the costs of
two counsel, provided that the fees of senior counsel shall be recoverable on
Scale C and that of junior counsel on Scale A.
______________________
F J GORDON-TURNER
MS ACTING JUSTICE OF THE HIGH COURT
Appearances
For the Applicant Mr H[…] (In Person)
Counsel for First to Third Respondent Adv Louise Buikman SC
Instructing Attorney Mr Juan Smuts
Abrahams & Gross Attorneys
Counsel for the Children Adv B Pincus & Adv A Thiart
Instructing Attorney Mrs Elana Hannington
Norman Wink Stephens Attorneys