REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case No:3358/2 4
In the matter between:
DR Applicant
and
N M First Respondent
R L Second Respondent
Heard: 09 December 2024
Delivered : Electronically on 23 January 2025
JUDGMENT
LEKHULENI J
Introduction
[1] The endless dispute between the applicant and the respondents has led to
three urgent applications that served before this Court on 09 December 2024. In the
first application, the applicant seeks an order that Dr Konrad Czeck, a forensic
psychiatrist, be appointed by the court to conduct a psychiatric and drug abuse
assessment and evaluation in respect of the first respondent and to compile a report
setting out his findings and recommendations regarding the first respondent's alleged
abuse of benzodiazepine drug.
[2] The applicant also seeks an order that in compiling the said report, amongst
others, Dr Czeck be authorised to have such powers as directed by this court to
obtain all relevant information from the first respondent's treating psychiatrists and
psychologists, both current and historical, including a record of all medication
prescribed to the first respondent for the period January 2023 to date.
[3] In addition, the applicant seeks an order that Dr Czeck be authorised to
conduct interviews with the applicant and the respondents and to administer random
drug testing on the first respondent without notice to the respondent, and to consult
with both chil dcare experts appointed by the court - Ms Leigh Pettigrew and Terence
Dowdall, to compile his report. The applicant seeks this order to assist the court in
determining whether the first respondent is better suited to be the primary carer of
two minor child ren, WML and LW, which will be determined in Part B of this
application.
[4] In the second application, the applicant seeks an order that the terms of the
joint minute prepared and signed by two childcare experts, Leigh Pettigrew and
Terence Dowdall, date d 01 August 2024, be implemented forthwith to replace the
terms of the court order granted by this Court on 13 June 2024. Additionally, the
applicant seeks an order that the said joint minute regulate the contact arrangements
pertaining to the two minor ch ildren, WML and LM, forthwith pending the final
determination of Part B of the application.
[5] The third application involved a counterapplication instituted by the first and
second respondents ("the respondents") in which they seek an order directing that
the applicant's application to have the recommendations contained in the joint minute
of Leigh Pettigrew and Terence Dowdall, in respect of the minor child WML be
postponed to such a date as this Court may deter mine, with the applicant paying the
costs of the postponement on an attorney and client scale.
[6] Furthermore, pending the postponed date, the respondents seek an order that
the applicant's contact arrangement with WML in terms of the order granted on 1 3
June 2024, be substituted by an order to the effect that from the commencement of
the 2025 school year, the applicant shall see WML on each alternate Wednesday
from after school until 18h30 when first respondent or second respondent shall fetch
WML from the applicant's home. That t he applicant shall see WML one weekend a
month from after school on Friday until Sunday at 18h30 and on one weekend a
month from 10h00 on Saturday until Sunday at 18h30.
[7] In addition, the respondents are requesting an order directing the applicant to
cooperate with Terence Dowdall, the expert appointed by the first respondent. This
cooperation aims to assess and understand the underlying causes of WML's
behaviour, as indicated by her sch oolteacher. According to the respondents, this will
enable the expert to make recommendations regarding how best to address such
conduct, including but not limited to the nature of the extent of the applicant's contact
arrangement that will serve WM's best interest. The respondents also seek an order
that should the applicant decide to appoint an expert, the expert and Mr Terence
Dowdall shall convene and prepare a joint minute within 10 days following the
finalisation of the reports.
The Application for the Appointment of Dr Cze ck
[8] For the purposes of this judgment, I will consider each of these applications
individually and in sequence. I will first consider the applicant's application for the
appointment of Dr Czeck, and thereafter, I will consider the implementation of the
joint minute application. However, in considering the two applications, I deem it
necessary to briefly set out the factual background giving rise to these applications.
The facts hereof have been dealt with extensively in the judgment of this Court dated
05 March 2024. To ensure thoroughness, I shall provide a summary of these facts,
incorporating the necessary change s pertinent to this judgment.
[9] The applicant and the first respondent are same -sex couples. They were
married on 29 April 2023 in terms of the Civil Union Act 17 of 2006. However, they
are currently separated. No children were born during their marria ge. The applicant
has two biological children who were born through a surrogate motherhood
agreement as envisaged in section 292 of the Children's Act 38 of 2005 before his
civil union with the first respondent. The said children are MT, a boy born in 2012
who is 12 years old and MC, a boy born in 2016 who is now 8 years old. The two
minor children are currently in the care of the applicant.
[10] Prior to the marriage between the applicant and the first respondent, the first
respondent was previously married to the second respondent in terms of the Civil
Union Act. The first respondent and the second respondent were both same -sex
couples, and their marriage was formally dissolved by a court order on 13 November
2020. During the marriage between the first and second respondent, a minor child,
specifically a girl named WML, was born on 09 October 2018 through a surrogate
motherhood agreement. The firs t respondent is the biological father of WML.
[11] In accordance with the parenting plan concluded between the parties, the first
respondent is designated as the primary care r for WML, while the second
respondent exercises visitation rights with the mino r child as stipulated in the plan.
[12] Following the divorce between the first and second respondent, the applicant
married the first respondent. Before their marriage, the first respondent had a second
child, LM, who was born on 12 April 2022 through a surrogacy agreement. LM was
born after the first and the second respondent divorced and before the first
respondent could marry the applicant. When LM was born, the first respondent and
the applicant were in a romantic relationship for approximat ely six months before
concluding their marriage agreement. The applicant was not involved in the legal
process for LM's surrogacy agreement. Thus, the applicant does not appear on LM's
birth certificate. Notwithstanding, the applicant has been actively involved in LM's life
since birth and has cared for and provided for him financially as he provided for his
two biological children.
[13] The applicant and the first respondent were married to each other on 25 April
2023, and their marriage is still in subs istence. The parties are currently separated,
and divorce proceedings are pending. No children were born in their marriage. As
stated earlier, the applicant has two biological children who were born through a
surrogate agreement before his relationship wit h the first respondent. The family of
the applicant and the first respondent comprised the applicant, the first respondent
and their four minor children, who lived together as a family unit until the applicant
and the first respondent separated.
[14] During the marriage, the applicant developed a strong relationship with the
first respondent's children, WML and LW. Additionally, WML and LW formed a close
bond with the applicant's children, MT and MC. The applicant and the first
respondent lived togethe r as a family unit, along with their respective children, from
August 2020 until 09 February 2024. During this period, they created a shared home
environment, fostering bonds among both sets of children. However, on 09 August
2024, the first respondent lef t the family home, taking his two minor children, LM and
WLM, with him.
[15] After the applicant and the first respondent separated, a dispute arose
regarding the applicant's contact with WML and LM (the first respondent's children),
with whom he had dev eloped a close bond. As a result, the applicant urgently
approached this Court seeking an order for interim care and contact with WML and
LM. Additionally, the applicant requested the appointment of Leigh Pettigrew, an
educational psychologist, to conduct a care and contact assessment and to provide
the court with recommendations for future contact arrangements that would be in the
best interest of WML and LM. At the hearing of th at application, the applicant
abandoned the relief for interim care of WML and LM and persisted only in seeking
interim contact and the appointment of Leigh Pettigrew to conduct an assessment.
[16] After listening to arguments and considering the matter, the court ordered that
pending the final de termination regarding the relief sought in Part B, the applicant
was granted permission to have contact with LM every Tuesday, starting after school
and continuing until 08h00 on Wednesday. Additionally, the applicant was allowed
contact with LM every alternate weeken d, beginning after school on Friday and
ending at 08 h00 on Monday. For WLM, the court ordered that the terms of contact
would be determined through mutual agreement between the first and second
respondents.
[17] Leigh Pettigrew, an educational psychologi st, was appointed as an expert for
the applicant, and Terry Dowdall, a clinical psychologist, was appointed as the first
respondent's expert. Both experts were directed to urgently conduct an assessment
and compile reports setting out their findings and re commendations regarding future
contact arrangements between the parties and the minor children that would be in
the children's best interest.
[18] In light of the serious allegations presented in the applicant's founding affidavit
concerning the parentin g capacity of the first respondent, the court, mero motu
directed the office of the family advocate to conduct a comprehensive care and
contact assessment regarding the minor children. This assessment is intended to
ascertain the best interests of the children involved.
[19] The respondents objected to the court's order instructing the office of family
advocate to conduct a care assessment conce rning the minor children.
Consequently, the respondents sought leave to appeal this order, asserting that the
court erred in directing a care assessment by the family advocate, as the applicant
had not requested such an assessment, and the court had not de termined that a
care assessment was warranted. The applicant opposed this application.
[20] Following a thorough examination of the matter, the application for leave to
appeal was d ismissed . The court determined that ordering the family advocate to
conduc t an investigation was in the best interests of the minor children. On 08 July
2024 , the respondents sought permission from the Supreme Court of Appeal to
challenge the court's order directing the family advocate to investigate the matter .
The Supreme Court of Appeal found no prospects of success on appeal and
dismissed the application.
[21] In the interim, the educational Psychologist Leigh Pettigrew filed her report. In
accordance with this Court's order, Ms Pettigrew recommended that the fa mily
advocate conduct a comprehensive care assessment to serve the children's best
interests. Leigh Pettigrew expressed concern about the first respondent's possible
abuse of benzodiazepine and recommended that a suitably qualified psychiatrist or
clinical psychologist be appointed to investigate the first respondent's abuse of
benzodiazepine and to report to this Court on whether the result obtained will or will
not have an effect on the two young children. Leigh Pettigrew recommended that the
two minor ch ildren, WML and LM, maintain contact with the applicant. Leigh
Pettigrew also recommended regular sleepover contact between the applicant and
WML, which should be implemented immediately.
[22] Due to some disagreements in the implementation of Leigh Pettigrew's
recommendation on contact, on 04 June 2024, the applicant brought an urgent
application seeking the immediate implementation of Ms Pettigrew's
recommendation in respect of the applicant's contact with LM and WML pending the
outcome of Part B of the main application. Both respondents opposed the
application. However, a n agreement regarding the applicant's contact with LM and
WML was reached and recorded in an order granted by Wille J on 13 June 2024.
[23] The order made provisions for the applicant's contact with WML during the
school term, including sleepover contact on certain school nights and weekend
contact. It also made provisions for holiday contact. Simply, the applicant's contact
with LM remained the same, but his contact with WML was increased to include,
among others, weekday sleepover contacts and two weekends a month. The contact
was set to begin during the upcoming school holiday s and would continue until a
final decision was reached regarding the relief requested in Part B of the application
or until any other interim application brought by the parties was finali sed.
[24] Subsequently, Terence Dowdall , the clinical psychologist, completed his
report in late July 2024. In his report, he recommended that the two minor children,
WML and LM, maintain contact with the applicant. Terence Dowdall particularly
recommended that the applicant should get a two -night weekend with WLM from
Saturday afternoon to Monday morning school drop (considering the Jewish Sabbath
on a Friday night), and this must overlap with a weekend that he has LM and every
Wednesday after school to Thursday morning drop off. In his report, Terence
Dowdall noted that he does not suspect that the first respondent has a
benzodiazepine addiction. However, he recommended that an independent
psychiatrist and drug evaluation by a psychiatrist with a good understanding of
pharmacological issues, such as Dr Konrad Czeck, be ap pointed to conduct such an
assessment.
[25] Later , Terence Dowdall and Pettigrew met in July 2024 and agreed to the
terms of a joint minute in which recommendations were made regarding the
applicant's contact with WML and LW. The two experts prepared and signed a joint
minute and made available to the parties in early August 2024. I will revisit this joint
minute later in this judgment when I deal with the application for implementing this
joint expert minute.
[26] Following Mr Dowdall's recommendation, the first respondent's attorneys
arranged for the first res pondent to consult Dr Czeck. Thereafter, the first respondent
consulted with Dr Czeck the clinical psychologist.
[27] The applicant took umbrage that the first respondent's attorneys arranged that
the first respondent consults with Dr Czeck without notifying him or his legal team for
such consultation and without Terence Dowdall and Leigh Pettigrew having any
insight or i nput regarding the scope of Dr Czeck's assessment. To this end, the
applicant's legal team requested a copy of Dr Czeck's mandate or the relevant
instructions from Dr Czeck regarding the scope of the assessment.
[28] In response, the first respondent's l egal team asserted that Dr Czeck was not
the applicant or a joint expert, as the applicant did not engage him. The first
respondent's attorneys further stated that they engaged Dr Czeck on their initiative
as their client's expert, considering the recommen dations made by Mr Terence
Dowdall in his report. In addition, the first respondent's attorneys stated that Dr
Czeck has not completed his investigation but has prepared an interim report, and
that same could be furnished to the applicant provided the appl icant provide d an
irrevocable written undertaking that he would not distribute or publish the report or
any of its contents in any manner whatsoever.
[29] Dr Czeck's interim report was subsequently provided to the applicant. Dr
Czeck's report indicates that the primary finding is that the first respondent is
dependent on Benzodiazepines. Dr Czeck also noted that the first respondent
conceded that he suffers from an unhealthy dependence on Ativan. In the report, Dr
Czeck noted very concerning is sues relating to the use of certain medications for
which the first respondent did not have the necessary prescription. This is the aspect
that Dr Czeck indicated that it needed further investigation.
[30] Dr Czeck recommended that the first respondent e ither participate in an
outpatient treatment program, which usually takes approximately 8 weeks or
alternatively a three -week in -patient programme followed by outpatient treatment and
supervision, which could be accomplished at the Crescent Clinic or Ruste nburg
Clinic.
[31] Pursuant to Dr Czeck's interim report, despite his initial impression that an
outpatient program would suffice, the first respondent followed Dr Czeck's
professional advice and committed himself to an in -patient program that was
intende d to last for 28 days at Rustenburg Clinic, a facility proposed by Dr Czeck to
the first respondent. The first respondent indeed attended the Rustenburg Clinic and
returned home on Monday, 14 October 2024.
[32] In this application, the applicant insisted that the appointment of Dr Czeck
should not be a sole mandate, considering that both childcare experts recommended
that the first respondent undergo such an assessment. To this end, on 18 September
2024, the appl icant's attorneys addressed a letter to the first respondent's legal team
requesting confirmation from them that from thence, henceforth, Dr Czeck's mandate
would be considered a joint mandate. This proposal was rejected. In their
correspondence dated 25 S eptember 2024, the first respondent's attorneys insisted
that Dr Czeck was neither the applicant's expert nor a joint expert as the applicant
did not engage him.
[33] The first respondent's attorneys insisted that the first respondent engaged Dr
Czeck on his own initiative after considering the recommendations made by Mr
Dowdall in his report, and he is not a joint expert. The applicant challenged this
stance and contended that the first respondent and his legal representatives were
hiding information fro m the applicant on the psychiatric and drug abuse assessment
of the first respondent .
[34] Pursuant to the stance adopted by the respondent, t he applicant asserted that
he eventually instituted this application seeking an order that Dr Czeck be appointed
by this Court to conduct a psychiatric and drug abuse assessment in respect of the
first respondent. In his application, the applicant also sought an order that Dr Czeck,
as a court -appointed expert, compile a report setting out his findings and
recommendations, with such powers as this Court may direct, to ensure that the
scope of Dr Czeck's assessment is not limited to what the first respondent does or
does not wish the child care expect s, the family advocate and this Court to know.
[35] After the applicant launched the application, the first respondent filed a notice
to abide. The first respondent's legal representative, Mr Goodkin, filed an
explanatory affidavit in which he refuted the allegations that he assisted the first
respondent in hidin g information or keeping the applicant in the dark about the
condition of the first respondent. In his explanatory affidavit, Mr Goodkin asserted
that although Dr Czech was engaged as the first respondent's expert, in a letter
dated 18 October 2024 to the applicant's attorneys, he confirmed that to avoid further
costly litigation and conflict, the first respondent had decided to consent to Dr
Czeck's appointment by the Court in terms of prayer 2 and 5 of the applicant's notice
of Motion.
[36] Mr Goodkin f urther stated that to provide clarity, the first respondent
suggested further additions to the applicant's notice of motion, which were
incorporated into a proposed draft order. These proposals were consistent with what
the applicant sought in the notice o f motion and contained in previous
correspondences of applicant's attorneys. Primarily, the amendments to the
applicant's notice of motion were that pending the completion of Dr Czeck's report,
the legal representatives of the applicant and the respondents may only
communicate in writing with Dr Czeck, and any such written communications had to
be copied to all the other legal representatives.
Discussion
[37] Children are the soul of society . If we fail them , then we have failed as a
society.1 This matter is not about the applicants, or the respondent s. It is about th e
two minor children , WML and LM in the care of the first respondent. As envisaged in
section 28(2) of the Constitution , the centrality of these children's best int erests must
be the overarching principle guiding this court's decision. This principle should take
precedence over the constant and endless conflicts between the applicant and the
respondents. This Court s its as the upper guardian for minor children, with a primary
obligation to prioriti se their protection and welfare.
[38] As the upper guardian of WML and LW , this court is empowered and under a
duty to consider and evaluate all relevant facts placed before it with a view to
deciding the issue which is of paramount importance : the best interest s of the child .2
This court is not bound by procedural strictures or by the limitations of the evidence
presented or by contentions advanced or not advanced by the respective parties.3 In
Terblanche v Terblanche ,4 the court stated that when a court sits as upper guardian
in a custody matter :
“It has extremely wide powers in establishing what is in the best interests of
minor or dependent children. It is not bound by procedural strictures or by the
limitations of the evidence presented or contentions advanced by the
respective parties . It may in fact have recourse to any source of information of
whatever nature which may be able to assist it in reso lving c ustody and
related disputes .”
[39] In the present matter, it is common cause that the two experts , Leigh
Pettigrew and Terence Dowdall considered the allegations pertaining to the first
respondent's alleged abuse of prescription medication and recommended that the
first respondent undergo an independent psychiatric and drug assessment regarding
1 SS v Presiding Officer of Children ’s Court: District of Krugersdorp and Others Case 2012 (6) SA 45
(GSJ) at para 1.
2 J v J 2008 (6) SA 30 (C) at para 20.
3 Kotze v Kotze 2003 (3) SA 628 (T) at 630F - I.
4 1992 (1) S A 501 (W) at 504C.
his alleged benzodiazepine addictio n. Terence Dowdall, the first respondent's expert,
recommended an independent psychiatric drug evaluation by a psychiatrist with a
good understanding of pharmacological issues, such as Dr Czeck. Following the
recommendations of Mr Dowdall, t he first respon dent's attorneys appointed Dr Czeck
to conduct the assessment . Indeed, the interim report of Dr Czeck confirmed that the
first respondent was addicted to benzodiazepine.
[40] The applicant impugns the unilateral appointment of Dr Czeck by the first
respondent and his legal representative s. According to the applicant, after the
reports of the tw o experts confirming that the first respondent was abusing drugs, the
next step ought to have been for the experts to meet and discuss th e appointment of
Dr Czeck.
[41] In my opinion , although it would have been ideal for th e parties to jointly
delineate and circumscribe the scope of assessment , the first respondent cannot be
faulted for unilaterally appointing Dr Czeck to conduct an assessment. It must be
borne in mind that the first respondent’s expert made recommendations that the first
respondent be evaluated by psychiatrist with a good understanding in
pharmacological issues such as Dr Czeck. As a result, of the report and
recommendations by the first respondent ’s expert , Dr Czeck was appointed as the
first respondent’s expert on 26 July 2024 to conduct a full psychiatric evaluation for
medicolegal purposes on the first respondent.
[42] I agree with the views expressed by Mr Van Embden SC that the first
respondent was fully entitled to follow the express recommendations of his expert
Terry Dowdall and to appoint Dr Czeck as his expert to conduct the appropriate
evaluation. In my view, there is nothing irregular about such an appointment. While
the applicant's expert also recommended that such an as sessment be conducted,
that did not compel the first respondent to seek the applicant's approval as to the
appointment of his own expert or for the expert to be jointly appointed.
[43] Notwithstanding, the fact that the applicant also has a keen interest in the
evaluation of the first respondent cannot be ignored or discounted. Importantly, it has
also already been confirmed that the first respondent has an addiction problem to
benzodiazepine. Dr Czeck has also confirmed this in his preliminary report. In my
view, it will not be in the interest of both parties, particularly the minor children, that
the applicant appoints his own expert to conduct a similar evaluation on the first
respondent, as this may delay the finalisation of the matter.
[44] Dr Czeck has already commenced with his evaluation. He has prepared two
preliminary reports . He was appointed in July 2024 a nd delivered his interim report
on 29 August 2024. After th e discharge of the first respondent from Rustenburg
Clinic, Dr Czeck delivered another preliminary report dated 4 November 2024 in
which he comments on the first respondent’s current mental state, his pro cess at
Rustenburg Clinic and the gains made, and suggested a structured plan for th e
future.
[45] In the said report, Dr Czeck notes further that the first respondent's abuse of
benzodiazepine dependence is in early remission. Dr Czeck further records that
since discharge, the first respondent has been managed at aftercare at Rustenburg
Clinic by Dr To rline. Furthermore, Dr Czeck states that it is additionally necessary to
establish a reasonable regime that could be followed to assist the first respondent in
his sobriety and to ensure safety at home.
[46] Based on the progress that has been made thus far, an appointment of
another expert to do the same evaluation would delay the finalisation of the matter.
Such an approach in my view would offend section 6(4)(b) of the Children's Act 38 of
2005 which provides that in any matter concerning a child a delay in any action or
decision to be taken must be avoided as far as possible.
[47] In my opinion, it is in the best interest of the children for Dr Czeck who has
already begun and made significant progress in his assessment of the first
respondent to be appointed by this court to complete the evaluation. Dr Czeck
should report his findings to the court, the family advocate, and the childcare expert.
This will enable the childcare experts and the family advocate to make informed
recommenda tions regarding the care and contact arrangements for the minor
children, based on the assessment's outcomes that may influence their evaluations.
[48] Accordingly, the appointment of Dr Czeck by the court would ensure
openness and transparency. I am min dful that an expert does not advocate for the
party by whom they are appointed. An expert is expected to be objective,
dispassionate and unbiased. However, the appointment of Dr Czeck by the court
would safeguard his independence as he will no longer be co nsidered the expert of
any of the parties but rather as a court -appointed expert.
[49] At the hearing of this matter, the court was informed that the applicant was
willing to share the costs of Dr Czeck with the first respondent attendant to the
assessme nt of the first respondent. In my view, the independence of Dr Czeck will
be safeguarded by directing that the first respondent and the applicant be equally
responsible for bearing the costs associated with this appointment.
[50] From the report of Terence Dowdall, it is noticeable that Dr Czeck is an
experienced psychiatrist with a good understanding of pharmacological issues and
an appropriate person to be appointed in this matter. He has already been instructed
to conduct a full psychiatric evaluation investigation for medical purposes on the first
respondent. I have complete confidence in this expert's ability to conduct an
independent report that prioriti ses the best interests of minor children, free from any
influence by the i nvolved parties. The fact that he immediately confirmed in his
interim report that the first respondent is addicted to benzodiazepine clearly attests
to his independence and unbiased mind.
[51] Importantly, at the heart of Dr Czeck's investigation is the ability of the first
respondent to care for the minor children. An investigation of care and contact is
inquisitorial in nature. The court may have recourse to any source of information, of
whatever nature, which may assist it in resolving the custody and related disputes.
As an expert appointed by the court, either party may call Dr Czeck as a witness and
pose questions to him. When called as a witness, Dr Czeck may be questioned by
the court and subjected to cross -examination by the opposing party.
[52] As discussed above, the court is not constrained by procedural formalism
when it comes to the best interests of minor children. The suggestion that the
applicant should engage his own expert, in my view, is untenable and cannot be
supported. It must be stressed that despite the first respondent's insistence that the
applicant appoint his own expert, the first respondent did not provide the applicant
with an undertaking that he would cooperate and provide the said expert with
unfettered access to relevan t information. In the absence of such an undertaking, it
can be reasonably inferred that the first respondent will not cooperate with the
applicant's appointed psychiatrist.
[53] Finally, on this issue, I have noted concernedly that both parties have ado pted
a confrontational approach in dealing with this matter, which is highly regretted. That
also played itself at the hearing of this matter. I deem it proper to sound a note of
caution that the interests of minor children should not be sacrificed or comp romised
by the rigid and inflexible stance adopted by the parties and their legal teams. After
hearing the arguments from both parties, I am of the strong view that the
appointment of Dr Czeck by the court could have been granted by agreement
between the parties without the intense argument of two counsel s for hours in court.
[54] It is perhaps apposite to remind ourselves of the guiding principles set forth in
section 6(4)(a) of t he Children's Act that in any matter concerning a child, an
approach which is conducive to conciliation and problem -solving should be followed
and a confrontational approach should be avoided.
[55] Consequently, I believe it will be in the minor children's best interest that the
court appoints Dr Czeck to finalise the investigation that he has already commenced
and provide this court and the relevant parties with the necessary report and
recommendati ons.
[56] This leads me to the second application , the application for the
implementation of the joint minute . The applicant's application for implementing the
joint minute of the childcare experts is intertwined with the respondents'
counterapplication. For convenience, I will first summarise the applicant's application
for the implementation of the joint minute and thereafter consider the two
applications jointly.
The Applicant ’s Second Application: Should the joint Minute prepared by the
court appointed childcare experts be implemented forthwith?
[57] In this application, the applicant sought an order that the terms of the joint
minute provided in accordance with the terms of a court order dated 13 June 2024
and signed by the court -appointed childcare experts, Leigh Pettigrew and Terence
Dowdall, dated 01 August 2024, be implemented forthwith. In addition, the applicant
sought an order that this joint minute replace the terms of a court order granted by
this court on 13 June 2024 and forthwith regulate the contact arrangement pertaining
to the minor chil dren, WML and LM pending the final determination of Part B of this
application.
[58] On 13 June 2024, an order by agreement was granted in terms of which the
applicant was allowed to have contact with LM in terms of the court order granted by
this court on 05 March 2024 . The first and the second respondent were ordered to
facilitate contact between the applicant and WML, which contact was to be on each
alternate Wednesday from after school until the following morning when she is taken
to school, to coincide with Wednesday mid -week overnight when LM is with the
applicant
[59] In terms of the June 2024 order, WML spent a total of 6 nights per month with
the applicant, 3 nights of which were school weeknights. The June 2024 order
specifically provided that once the report of the court -appointed childcare experts
was completed, Mr Dowdall and Ms Pettigrew shall meet and produce a joint minute
if so instructed by the parties' attorneys, and which meeting had to take place within
10 days of such delivery and instruction .
[60] In accordance with the terms of the June 2024 order, Ms P ettigrew and Mr
Dowdall met on 25 July 2024 and provided a joint minute signed by both experts on
01 August 2024. The two experts agreed on the contact arrangement for the
applicant regarding LM and WML. The joint minute recommendations proposed that
WML s pend a total of 7 nights per month with the applicant, 5 of which were school
nights. Concerning LM, the experts agreed in their joint minute that LM's holidays
with the applicant would be shared on a 50:50 basis.
[61] The experts agreed in the joint min ute that WML would be collected by the
applicant every Wednesday after school and dropped off at school every Thursday
Morning. The experts also agreed in their joint minute that the applicant will spend
one full weekend a month with WML from after school on a Friday until Monday
morning when the applicant drops WML off at school. The two childcare experts also
agreed that WML should commence this schedule immediately and that WML should
spend a third of each school holiday with the applicant.
[62] The applicant sought the immediate implementation of the joint minute.
According to the applicant, it was his understanding that if the experts could
conclude a joint minute stipulating agreed contact arrangements, such arrangements
would be implemented fo rthwith without the need for the parties to approach this
court. Pursuant thereto, the applicant brought this application because he claims that
the second respondent has been resistant to implementing the joint minute .
[63] According to the applicant, this resistance primarily stems from the second
respondent's disagreement with the recommendation for the applicant to have
sleepover contact with WML every Wednesday. The applicant believes that the
second respondent is unhappy about this arrangement becau se he himself does not
have sleepover contact with WML during the week.
[64] According to the applicant, the purpose of this application is to seek the
immediate implementation of the terms of the joint minute, which has been
determined to be in the chil dren's best interest by both childcare experts. The
applicant states that the second respondent has alleged in recent times that WML's
teacher has raised concern regarding WML's behaviour at school, which the second
respondent alleges is connected to WML's sleepover contact with the applicant and
the applicant's sons every second Wednesday as provided for in the June 2024
order. The applicant further asserts that the fact that the second respondent would
not allow the applicant to engage with WML ’s school to inquire about the details of
the concerns and be part of the solution is making matters worse.
[65] The applicant believe s that the alleged behavio ural issues of WML , if they
indeed exist and to the extent claimed by the second respondent, are more likely a
result of the disruptions to WML's life caused by the first respondent's admission to
an inpatient rehabilitation facility and an ongoing conflict and disruptions caused by
the second respondent ’s persistent attempt to limit contact between applicant and
WML.
[66] The applicant believes that the onus is on the second respondent to show
why the joint minute should not be implemented and not only him to show why it
should be implemented. According to the applicant, the second responde nt took the
law into his own hands by refusing to implement the joint minute. The applicant
states that the second respondent cannot merely "wish away" the terms of the joint
minute or the June 2024 order in terms of which the joint minute was produced. Th e
applicant prayed the court to grant an order in terms of the notice of motion.
[67] As stated above, I will evaluate this application jointly with the respondents’
counterapplication discussed hereunder as th e two applications are in intertwined.
The Respondents' counterapplication
[68] In response to the applicant ’s application for the immediate implementation of
the childcare experts ’ joint minute, the respondent s instituted a counterapplication in
which they seek an order directing that the applicant ’s application to have the
recommendations contained in the July 2024 joint minute of Le igh Pettigrew, and
Terence Dowdall , in respect of the minor child WML be postponed to such a date as
this Court may determine , with the applicant paying the costs of the postponement
on an att orney and client scale.
[69] Additionally, pending that postponed date, the respondents seek an order that
the applicant's contact arrangement with WML in terms of the order granted on 13
June 2024 be substituted by an order to the effect that from the commencement of
the 2025 school year, the applicant shall see WML on each alternate Wednesday
from after school until 18h30 when first respondent or second re spondent shall fetch
WML from the applicant's home. The applicant shall see WML on one weekend a
month from after school on Friday until Sunday at 18h30 and on one weekend a
month from 10h00 on Saturday until Sunday at 18h30.
[70] Furthermore, the respondents request an order that the applicant be directed
to cooperate with Terence Dowdall, the expert appointed by the first respondent for
the purpose of the expert assessing and considering the underlying cause of WML's
bad behaviou r at school as indicated by her educator and to enable him to make
recommendations in respect of how best to address such conduct including but not
limited to the nature of an extent of the applicant's contact arrangement that will
serve WM's best interest . If the applicant elects to appoint an expert, then such
expert and Mr Dowdall shall meet and produce a joint minute within 10 days of the
reports being finalised.
[71] The respondents assert that during October 2024, the first respondent
attended in -patient treatment at Rustenburg Clinic on the advice of Dr Czeck. During
the four weeks of his treatment, WML was in the care of the second respondent. The
applicant continued to have contact with WML in terms of the June 2024 order.
However, WML's concernin g conduct at school and after school night sleepovers at
the applicant's home continued during this time. Upon the first respondent's
discharge, the provisions of the June 2024 order, in all respects, were again
implemented. Notwithstanding, the respondent s assert that WML's troubling
behaviour at school after spending a school night sleepover at applicant's home
persisted.
[72] The respondents indicated that WML's behaviour at school, after an overnight
stay at the applicant's residence, requires evaluation by an expert. This assessment
is intended to identify the underlying causes of this behaviour and to ascertain
whether alterations to the contact arrangements specified in the June 2024 o rder, as
well as the recommendations outlined in the joint minute by Leigh Pettigrew and
Terence Dowdall completed in July 2024, are warranted. To this end , the
respondents are of the view that the applicant’s sleep over contact on school nights
should be suspended for such purpose or pending the investigation.
[73] In addition, the respondent assert ed that despite purporting to be concerned
with WML, the applicant insists that the recommendations contained in the joint
minute be implemented and is not willing to suspend sleep over contact on school
nights during the period of the assessment. The respon dents stated that the
applicant also appears to disregard the fact that WML will commence grade 1 in
2025, and this is a foundational year in which she should experience as little
disruption as possible.
[74] The respondents referred the court to an email of 28 August 2024 attached to
their founding answering affidavit, in which WML's teacher stated that WML seemed
unsettled this term and not her usual self. The teacher also stated that WML was
experiencing separation anxiety in the morning when her father dropped her off at
school. The teacher noted that there have been mornings when the WML has been
in tears and asked to go home to the first respondent. The teacher also asserted that
WML did not have contact with the applicant from 5 to 08 August 2024, wh ich had
been a noticeably good week for her.
[75] In the said email, the teacher further asserted that on 21 and 22 August 2022,
WML's behaviour had been out of control, and she had been screaming and
shouting at friends, which was out of character and w as saying things such as, I am
done with you.
[76] On 29 August 2024, WML's teacher further conveyed in an email that WML
had been particularly unsettled and could not focus on tasks. The teacher stated that
in her free play, WML was very aggressive with killing and dying games and that in
the game, her si ster kept being killed and had to die. It was conveyed that this
obviously upsets her friends. The teacher noted that WML engages in such play after
a sleepover contact in the applicant's home. According to the teacher, in her
professional opinion, midweek sleepovers with a non -parent are not beneficial to
WML , and this was causing anxiety and disruptions to her school life.
[77] On 15 September 2024, the teacher also expressed concern that on
Thursday, when coming from the applicant's house, WML was more distracted than
usual, singing killing songs and rhymes and games, as well as hitting another child
out of frustration, which is not her usual character. This was after a sleepover at the
applicant's place. On 08 September 2024, after WML had slept over a t the
applicant's home, WML's teacher conveyed an email to the respondents in which
she stated that WML was fighting and arguing with girls in the class from the minute
she walked in, shouting at them with a lot of anger. According to the teacher, WML's
play was rough and physical in the playgrounds. Not only was her behaviour
disruptive to herself and her day, but it also affected others in the class.
[78] Pursuant to WML's behaviour at school, the respondents could not agree to
the implementation of the recommendations contained in the joint minute of the two
experts as the applicant wished to implement. Given the concerns the educator
raised regarding WML's conduct, the respondent proposed that an expert consider
the impact of midweek sleepover contact w ith the applicant. The respondents
referred to various correspondences exchanged between the parties with a view to
reach ing an amicable settlement on the issue to no avail. The respondents sought
an order that the implementation of the joint expert minute be postponed pending an
investigation by an expert.
Applicable Legal Principles and Discussion
[79] As mentioned previously, the two applications, namely the counterapplication
and the application for the immediate implementation of the joint min ute of the
childcare experts, centre around the best interests of the child. Section 28(2) of the
Constitution provides that a child's best interests are of paramount importance in
every matter concerning the child. The child's interests take precedence over the
interests of the parents. Section 9 of the Children's Act echoes section 28(2) of the
Constitution and provides that in all matters concerning the care, protection and well -
being of a child, the standard that the child's best interest i s of paramount importance
must be applied.
[80] As correctly pointed out by Ms McCurdie SC, the issue to be determined in
this application is very narrow. The court is only enjoined to determine whether the
immediate implementation of the joint minute rec ommendations is in WML's best
interest or whether it is in her best interest that such implementation be postponed
pending the assessment by the childcare experts in respect of the concerns raised
by WML's teacher which assessment may impact on the contact arrangement
currently contained in the joint minute recommendations. This question, in my view,
can be determined on the papers before this Court .
[81] In considering this question, I must stress that the teacher of WML has raised
serious concerns about the sleepover of WML at the applicant's place on weekdays.
According to the teacher, the child becomes aggressive and unsettled at school on
days succeeding the sleepover at the applicant's premises. In her affidavit, WML's
educator states that as an exper ienced educator, she can express a view regarding
the negative impact of school night sleepovers on many children of WML's age and
has needed to take this up with parents of learners before in the interests of their
children.
[82] Notably, t he teacher notes that one expects a child to be a little unsettled
when moving between homes in divorced or blended families. However, when there
is a marked and on -going impact on a child, this is a concern for an educator. The
educator’s view in this reg ard is not a comment on the applicant or his household.
According to the teacher , it is a comment about WML having a stable and consistent
routine and sleeping in one home on school nights.
[83] Ostensibly, it has not yet been established what caused the alleged
misbehaviour. The two child experts expressed divergent views on this aspect. Ms
Pettigrew contends that the cause of WML acting out is likely multifaceted and
cannot be attributed to a single cause. On the other hand, Mr Dowdall persists that
sleepover contact should be suspended so that it can be determined whether this is
the source o r a contributing factor to WML's behaviour.
[84] In my opinion, the allegations presented by the teacher warrant serious
consideration and should not be overlooked or undervalued. It is imperative that an
investigation is conducted to ascertain the underlying causes of such behaviour. I
appreciate the fact that the two experts have prepared and signed a joint minute . I
am also mindful that litigants should not be encouraged to repudiate agreements for
tactical reasons.5 However, I am of th e view that the joint minute signed by the
expert s cannot be allowed to trump or supersede the best interest s of the child .
[85] Simply put, a joint minute formulated by a panel of experts cannot take
precedence over the best interests of the child. This consideration becomes
particularly pertinent when new evidence emerges after the finalisation of the joint
minute, which sugge sts that the implementation of the joint minute may compromise
the child's welfare. More so, consistent with section 9 of the Children’s Act, the
standard prioritising the best interests of the child must be applied in all matters
related to their care, pr otection, and well -being .
[86] In any event, the recommendations of a joint minute are no more than the
experts ’ common opinion on a matter within their joint expertise and is merely part of
the total body of evidence. The court must still determine whether to accept the joint
opinion.6 The existence of that agreement between the experts will not ordinarily
preclude evidence that qualifies or contradict their opinion, unles s the case has been
conducted based on the agreement and the admission of that evidence will prejudice
the other party in a manner that cannot be cured .7
[87] The behaviour of WML at school after the sleepover at the applicant's home
has not been disputed, reasonably so because the cause remains undetermined. It
was not envisaged when the joint minute was completed and signed. WML's teacher
has explained in deta il WML's conduct after sleeping at the applicant's premises.
The applicant impeaches the teacher's reports and alleges elements of bias against
him. In my considered opinion, in the absence of concrete evidence that contradicts
the claims made by WML's tea cher, I am inclined to accept that the information
provided by WML's teacher is more than adequate to support a conclusion that she
has expressed her concerns in good faith and with WML's best interests as a priority.
[88] As correctly submitted by Mr Van Embden, the teacher has not sought to
apportion blame to any party. Furthermore, the concerns she raised have been
5 BEE v RAF 2018 (4) SA 366 (SCA) at para 67.
6 HAL O.b.O MML v MEC For Health, Free State 2022 (3) SA 571 (SCA) at para 229.
7 HAL O.b.O MML v MEC For Health, Free State (supra) at para 229.
correctly determined by Mr Dowdall to require investigation. In my view, these
allegations are serious and must be investigated. Even if it means that the experts or
either party attend school after such a sleepover to confirm or refute the teachers'
observations.
[89] I have noted the applicant's contention raised in the replying affidavit,
however, I am of t he view that in the absence of any evidence to the contrary, it
would be irresponsible for this court to direct the implementation of the terms of the
joint minute, as regards WLM's school night sleepover at the applicant's home,
without first examining th e issues that her teacher has raised regarding her conduct,
which she records appears to manifest at school following the sleepover at the
applicant's home.
[90] I must stress that t he allegations raised by the teacher about WML's
behaviour after sleepin g over at the applicant's place are very concerning. In my
judgment , given the evidence presented, it would be a serious failure of duty for this
court to order the immediate implementation of the joint minute, considering the
serious allegations raised by the teacher who spent significant time with the child at
school. The request to postpone the implementation of the joint minute, as
articulated in the counterapplication, should be granted until a thorough expert
investigation is conducted to ascertain th e underlying cause of the alleged
behaviour . This prudent approach , in my view, will ensure that all relevant factors are
thoroughly evaluated and that the interests of WML are more effectively
safeguarded.
[91] Mr Pincus SC argued on behalf of the applicant in his written submissions that
the suspension of the applicant's weeknight sleepover contact with WML may
prejudice the applicant in the assessment by the family advocate, which is due to
commence in March 20 24 and that his contact with WML may still be suspended at
that point in time and present a skewed picture to the family advocate as to the
amount of contact the applicant enjoyed with WML. Respectfully, I do not agree with
this proposition. The focus of t he investigation must be on WML as opposed to the
parties themselves.
[92] Furthermore, the applicant would still exercise contact with WML pending the
investigation during weeks days. To the extent that the applicant is prejudiced with
the postponement of implementing the joint minute, such prejudice is far outweighed
by the potential prejudice to WML if the alleged behaviour is not investigated before
implementing the weekly overnight contact on school nights in terms of the joint
minute.
[93] Additionally, I do not expect that the investigation of WML's conduct would
take a long time. At the hearing of this matter, the court was informed that Mr
Dowdall had already commenced the investigation. In the interest of transparency
and openness, I am of the view that it will be in the interest of both parties,
particularly in the best interest of the minor child, that both Ms Pettigrew and Mr
Dowdall should be appointed to conduct the proposed additional assessment and
should agree on the scope and breadth of such assessment. Accordingly, after
completing their assessments, both experts would be better placed to articulate their
positions on whether WML's mid -week overnight contact with the applicant
contributes to the alleged behavioural issue.
[94] The applicant must still maintain day contact with WML during school terms,
pending the outcome of the investigation . I appreciate that the applicant has formed
a strong bond as a loving father to WML. However, in a case like this, I am of the
view that the court must err on the side of caution and direct that pending the
implementation of the joint minute, an investigation be conducted to ensure that the
best interest of WML is upheld. Significantly, the court must consider all relevant
circumstances and ensure that the child's best interest is paramount. In P and
Another v P a nd Another8, the court stated that the court does not look at sets of
circumstances in isolation. The court stated:
“I am bound, in considering what is in the best interests of G, to take
everything into account which has happened in the past, even after the close
of pleadings and in fact right up to today. Furthermore, I am bound to take into
8 2002 (6) SA 105 (N) at 110C -D.
account the possibility of what might happen in the future if I make any
specific order. ”
[95] While in AD and DD v DW and Others (Centre for Child Law as Amicus
Curiae; Department for Social Development as Intervening Party ,9 the Constitutional
Court endorsed th e view that the interest of minor children should not be held at
ransom for th e sake of legal niceties .
[96] Consequently, I am of the view that the implementation of the joint minute
should be postponed pending the investigation of the alleged behaviour of WML's
conduct after sleeping over at the applicant's place.
Order
[97] Given all these considerations, the following order is granted:
Order regarding the Appointment of Dr Czeck
[98] Dr Konrad Czech, a forensic psychiatrist (“Dr Czech”), is appointed by the
Court to finalise his psychiatric and drug abuse assessment and evaluation in
respect of the First Respondent, and in terms of which he has produce d two interim
reports, dated 29 August 2024 and 4 November 2024 . Dr Czeck is directed to
provide his further report after the six-month urine testing period, referred to in
paragraph 101 below.
[99] The Applicant’s expert, Leigh Pettigrew (“Pettigrew”) and the First
Respondent’s expert, Terence Dowdall (“Dowdall”), may engage with Dr Czech in
respect of his full psychiatric assessment of the First Respondent and the First
Respondent’s abuse of benzodiazepi ne and any other drug addiction provided that
any such written communications (including all text and WhatsApp messages) with
Dr Czech by either expert are immediately copied to the other expert.
9 2008 (3) SA 183 (CC) at para 3.
[100] For the purpose of his assessment , Dr Czech is author ised to have the
following powers and, in particular, may take the following steps to conclude his
assessment and compile his further report;
100.1 ensure that his further report addresses any of the outstanding issues
which might be raised by Pettigrew or Dowda ll.
100.2 Conduct interviews with the Applicant, the First Respondent and the
Second Respondent on reasonable notice and for reasonable periods.
100.3 Consult with both Pettigrew and Dowdall.
100.4 Consider the assessment reports of both Pettigrew and Dowdall .
100.5 Conduct int erviews with any other relevant collateral sources on
reasonable notice and for reasonable periods.
100.6 Subject to paragraph 101 below, administer random drug testing to the
First respondent, without notice to the First Respondent.
100.7 To consider all other aspec ts relating to th e First Respondent’s drug
abuse and full psychiatric assessment, as identified and or raised by
Dowdall and or Pettigrew and addressed to Dr Czeck in writing by
Dowdall and or Pettigrew, withing 10 days of this order being granted.
[101] Pending the finalisation of Dr Czech’s further report, the First Respondent
shall undergo drug testing including benzodiazepine urine tests at an accredited
pathology facility, twice weekly for three months and random testing thereafter for
another three months, under the supervision of Dr Czech. The results shall be
furnished to Dr Torline and Dr Czech immediately upon receipt of same by the First
Respondent, and which results shall, if positive, be immediately shared with the
parties’ lega l representatives and experts.
[102] Pending the completion of Dr Czech’s further report, the legal representatives
of the Applicant, the First Respondent and the Second Respondent may only
communicate in writing with Dr Czech and any such written communi cations
(including text and WhatsApp messages) shall be copied to all other legal
representatives.
[103] Dr Czech’s appointment by the Court shall not preclude any of the parties
from calling him as an expert in the pending legal proceedings or preclude a ny of the
parties’ legal teams from consulting with Dr Czech once he has furnished his final
report. However, the trial Court will make whatever rulings it deems necessary in
relation to the receiving of Dr Czech’s expert evidence.
[104] Subject t o paragr aph 105 below , Dr Czech’s further report and its contents
shall not be distributed, disseminated or published in any manner whatsoever
(including on any social media platform) except for the purposes of the pending court
proceedings.
[105] Dr Czech’s furt her report shall be provided to this Honourable Court,
Pettigrew, Dowdall , the Family Advocate and the respective attorneys of the parties .
[106] The Applicant shall pay to the First Respondent 50% of the costs incurred by
the First Respondent to date, oc casioned by the appointment of Dr Czech and the
furnishing of his two interim reports. From date of this order all costs in respect of Dr
Czech shall be payable by the Applicant and the First Respondent in equal shares.
[107] All questions of costs in res pect of the appoint ment of Dr Czeck shall stand
over for determination in the main proceedings.
Order regarding the implementation of the Joint Minute
[108] The a pplicant’s application to have the recommendations contained in the
July 2024 Joint Minute of Leigh Pettigrew (‘Pettigrew’), the educational psychologist
and Terence Dowdall (‘Dowdall’), the clinical psychologist in respect of the minor
child W ML is postpo ned to 13 March 2025 at 10h00 ;
[109] Pending the postponed date, the A pplicant’s contact in paragraphs 1.4. to
1.4.4 of the order of this court, granted on 13 June 2024 (‘the June Order’) shall be
substituted by the following:
[110] From the commencement of the 2025 school year:
110.1 On each alternate Wednesday from after school until 1 8h30 when first
respondent or second respondent shall fetch WML from applicant’s home;
110.2 On one weekend a month from after school on the Friday until the
Sunday at 1 8h30;
110.3 On one weekend a month from 0 9h00 on the Saturday until the Sunday
at 18h30.
110.4 Directing that the balance of the provisions of the June Order, relating
to WLM , including provisions relating to applicant’s holiday contact with WLM ,
shall remain in full force and effect.
[111] The Applicant and th e respondents shall cooperate with Dowdall and
Pettigrew , or the relevant child care expert that th e Applicant may wa nt to appoint , for
the purpose of the expert s assessing and considering the underlying cause of W ML’s
conduct (as indicated by her school teacher) and to enable them to make
recommendations in respect of how best to address such conduct including, but not
limited to the nature of and extent of Applicant’s contact arrangements that will serve
WML ’s best interests.
[112] The Applicant and the Respondents shall cooperate in the assessment and
facilitate the observation of WML in their respective homes. This o bservation will
include WML’s interactions with the Applicant, the Respondents, the care rs, and/or
the Applicant's children for the purposes of the assessment by the two experts.
[113] The two expert s shall provide their report s alternatively, interim repo rts on or
before 28 February 2025 .
[114] The two experts shall meet and produce a joint minute within 10 days of the
reports being finalised, in which Minute they will record the issues on which they
agree and the issues on which they do not agree and shall record such
recommendations in respect of Applicant’s contact on which they agree . For judicial
oversight purposes, the duly signed joint minute shall be submitted to the court for
consideration on the postponed date .
[115] The parties’ legal representatives shall meet at the earliest possible
opportunity thereafter for the purposes of attem pting to resolve the matter based on
the recommendations contained in the joint minute, alternatively to agree on the filing
of any further papers in the matter for the purposes of hearing on 13 March 2025.
[116] The costs of the application for the imple mentation of the joint minute and the
counterapplication shall stand over for later determination .
__________________________
LEKHULENI JD
JUDGE OF THE HIGH COURT
APPEARANCES
For the Applicant: Mr Pincus SC
Instructed by: Bertus Preller (Maurice Phillips Wisenberg Attorneys)
For the first Respondent: M r Van E mbden SC
Instructed by : Rael Goodkin (Werksmans Attorneys)
For the Second Respondent: Ms McCurdie SC
Instructed by: Elana Hannington (Norman Wink Stephens Attorneys)