REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
Case Number: 2020/40619
(1) REPORTABLE : NO
(2) OF INTEREST TO OTHER JUDGES: NO
11/tJ.j:)o~Lt_-~
(3) REV ISED: YES •
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DATE SIG A E
In the matter between:
JK Applicant in reconvention
and
JK Respondent in reconvention
JUDGMENT
[1] The applicant in reconvention (the husband) and the respondent reconvention
(the wife) were formerly married. One child was born of their marriage, namely
L who is at present 10 years of age.
[2] Primary residence of L was at the time of the grant of the decree of divorce
awarded to the wife. The husband was granted rights of contact to L. These
matters were regulated by a consent paper wh ich the parties had concluded.
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[3] Difficulties arose and consequent thereon the wife instituted an urgent
application against the husband. She in that application sought to modify the
contact which the husband exercised in relation to L. The substance of the case
was that the husband had formed. a relationship with one Cheney (C) . C is the
mother of a child (DB) and the suggestion was that L was being bullied by DB
and because of that the husband's contact to L required modification.
[4] Windell J considered the matter and after hearing the parties she, on the
8 December 2020, issued an order in the following terms:-
"1. Pending the finalisation of the interaction al analysis and further counselling and
parental guidance counselling, prescribed by Social Worker, Marlize
Holtshauzen as well as further steps taken in terms of paragraph 5 of the
Settlement Agreement, annexed to the Order of Court, dated 29 August 2019
in case number 2016/44604:
1. 1 The Respondent is allowed to exercise his contact in terms of
paragraph 3. 1 and 3. 3 of the Settlement Agreement in case number
44604/16, subject to paragraph 2 infra.
1. 2 For the December 2020 holiday the Respondent is allowed to take the
minor child for the period 24 December 2020 to 31 December 2020
(both dates included) to visit his parents in Uniondale, subject to
paragraph 2 infra.
1. 3 Further contact, should it become applicable, in terms of paragraph 3. 4,
3. 5 and 3. 6 of the Settlement Agreement in case number 44604/16,
shall also be subject to paragraph 2 infra.
2. At all relevant times when exercising his contact the Respondent shall not
allow the minor child to have any contact whatsoever with the Respondent's
friend, (C), and/or her minor son, (DB).
3. Both parties are ordered to comply with any reasonable request of the
registered Social Worker, Marlize Holtshauzen are further ordered to cooperate
with her and other practitioners or experts appoints by her in order to give effect
to paragraph 9.2 of Holtshauzen's report dated 20 November 2020.
4. Both parties are authorised to file further papers, should it appear after the
process, guided by Holtshauzen, that it is necessary to apply for
alternative/further relief pertaining to the minor child.
5. Costs for the Application on 8 December 2020 are reserved."
[5] Ms Holtshauzen commenced the work entrusted to her under paragraph 1 of the
order of Windell J. The husband and wife however subsequently agreed that she
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would be replaced by Ms Sonia Howes, a psychologist. She in terms of the
parties' agreement was to discharge the functions which had previously been
entrusted to Ms Holtshauzen.
[6] It appears that the husband's relationship with C had by then come to an end
and that both she and DB no longer formed a part of the husband's life.
[7] Ms Howes on 2 June 2022 submitted a "Holistic Social Emotional Screening
Assessment Report" in respect of L to the parties. She in the report expressed
the view that "(O)ut of the assessment data it would appear that the minor child
wasn't exposed to bullying behaviour by (DB)."
[8] The husband then instituted a counter-application in the earlier proceedings,
seeking an order of shared residency in respect of L.
[9] The counter-application was ill-fated to begin with. An investigation by the Family
Advocate had neither been sought nor obtained. This was recognised by the
parties who agreed that the counter-application could not be determined until
such time as that omission had been cured.
[1 OJ The parties then furnished me with draft orders in regard to the further conduct
of the matter.
[11] The competing drafts held much in common. There, are however, three residual
questions which I need to determine. They relate to the following, namely:-
• whether the order of Windell J is to be retained and incorporated in the
draft which I have been asked to make an order of court;
• what is to happen to the costs of the proceedings before Windell J:
• what is to happen to the costs of the proceedings before me on 5 and 6
December 2024
[12] I shall deal with each of these matters seriatim.
[13] Mr Jacobs on behalf of the husband contends that the order of Windell J ought
to be incorporated in the order which I am to make and that effect is to be given
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to that order in its terms. This was resisted by Ms Salduker who appeared on
behalf of the wife. I am not inclined to accede to the request of Mr Jacobs. The
proceedings before Windell J related to the issues surrounding the husband's
contact to L in light of the allegation that he was being bullied by DB, the son of
his then girlfriend, C. This issue has seemingly been resolved, at least on the
face of it. The Family Advocate in conducting his or her investigation will
prescribe what procedure needs to be followed in order to determine whether it
is in L's best interest that his primary residence be shared by the husband and
the wife. Some of these procedures may overlap with what Windell J ordered in
relation to the investigations which she sanctioned. In my judgment it would be
most unwise to fetter the Family Advocate's discretion and approach by retaining
the orderof Windell J. This order related to a specific problem which had arisen.
The investigation now in contemplation relates to an entirely different problem.
[14] The costs of the proceedings before Windell J were reserved. I have no reason
to suppose that the wife in instituting those proceedings and the husband in
resisting them acted in manner other that which represented the best interests of
L. Despite Ms Holtshauzen's apparent vindication of the husband's position, I
believe it proper that the parties should bear their own costs of these
proceedings.
[15] The husband's counter-application was entirely misconceived. There was no
prospect that it would be heard without a forensic investigation by the Family
Advocate. The wife's attorneys pointed this out to the husband's attorneys. He
nonetheless persisted with the application. In so doing the husband in my
judgment acted unreasonably. In result I am of the view that the wasted costs
arising from the hearings during the week commencing on 2 December 2024 are
to be paid by the husband on scale B of the scale referred to in Uniform Rule of
Court 69(A).
[16] Based on the drafts of the parties and my views on them, I make the following
order:-
1. The matter is referred to the Office of the Family Advocate for an
investigation and recommendation as to whether it is in the best interests of
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the minor child, L to enjoy shared residency with the applicant and
respondent.
2. Pending the recommendations of the Office of the Family Advocate, the
respondent is allowed to exercise unrestricted contact in terms of the existing
settlement agreement under Case Number 44604/2016.
3. The order previously granted by the Honourable Judge L Windell on
8 December 2020, with regard to the prohibition of the contact between
L and C and DB is hereby set aside.
4. The applicant and the respondent are to co-operate with the investigations
of the Family Advocate.
5. The applicant and respondent are granted leave to supplement their papers
once the report of the Family Advocate has been tabled.
6. There will be no order for costs arising from the proceedings under case
number 2020/40619, which proceedings were determined by the
Honourable Judge L Windell on 11 December 2020.
7. The costs of the hearings before me during the course of the week
commencing 2 December 2024 are to be paid by the respondent.
~~BERAJ
JUDGE OF THE HIGH COURT
JOHANNESBURG
For the applicant in reconvention:
Instructed by:
For the respondent in reconvention:
Instructed by:
Adv G Jacobs
Nolte Inc Attorneys
c/o Couzyns Incorporated
4th Floor
One Sturdee
1 Sturdee Avenue
Rosebank
Tel: 011 788 0188
Adv A Salduker
Verster Attorneys
Unathi House
545 Rubenstein Drive
Moreleta Park
Tel: 012 030 0019
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