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[2024] ZAKZPHC 112
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N.J.B.D. v C.D (8780/2021P) [2024] ZAKZPHC 112 (27 November 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
FLYNOTES:
FAMILY – Children –
Contact –
Expert reports –
Allegations of sexual misconduct by father – Court ordering
forensic psychological evaluation
– Report concluding that
father not danger to child – Mother contending findings
incompetent because co-authors
not psychologists – Two
co-authors were social workers and very qualified and accomplished
– Competent to provide
the evaluation – Order
providing for contact by father and appointment of social worker
case co-ordinator, as well
as curator ad litem for child.
IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO: 8780/2021P
In
the matter between:
N[…]
J[…] B[…] D[…]
APPLICANT
and
C[…]
D[...]
RESPONDENT
Coram:
Nicholson AJ
Heard:
25 October 2024
Delivered:
November 2024
ORDER
1.
Ms Janette Hermann is appointed as a social worker case co-ordinator
with the following functions:
(a) To facilitate
and ensure that during the handing over of G[...] D[...], both to and
from the respondent, which will be
described below, either Elmarie
Booysen and/or Li Anne Oberholzer must be present to ensure the
wellbeing of G[...].
(b) To receive
weekly update reports from Elmarie Booysen and/or Li Anne Oberholzer
regarding G[...]’s wellbeing.
(c) At her
discretion, ensure appropriate emotional support for G[...], if
necessary.
(d) Decide, if
after four weeks, it is in the best interests of G[...] for
visitation to continue in terms of the divorce
settlement agreement.
(e) Share all
reports with Mr Bollo, who I refer to below.
(f) In the event of
any further litigation, to provide the court with a report, whether
the relief sought is in the best interest
of G[...].
2.
Claudio Bollo is hereby appointed as G[...]’s curator ad litem,
with the following functions:
(a) To assess all
the legal documents and liaise with Ms Hermann to determine what is
in the best interests of G[...].
(b) With the
assistance of Ms Hermann, to conduct interviews with G[...], the
applicant and the respondent, and other persons
he deems relevant.
(c) In the event of
any further litigation, to provide the court with a report, whether
the relief sought is in the best interest
of G[...].
(d) To institute
litigation, should he deem it in the best interest of G[...].
3.
For the next four weeks after the granting of this order, the
applicant may enjoy contact with G[...] D[...] as follows:
(a) Unsupervised
visitation on alternate weekends on Saturday and Sunday from 8h00 to
16h00, and alternate Wednesdays and
Fridays from 14h00 to 17h00.
(b) Daily telephone
and/or video calls between 17h00 and 18h00, and the respondent is
directed to ensure that G[...] is reasonably
able to receive these
calls.
4.
On the expiry of the four weeks, unless Mr Bollo and Ms Hermann holds
a contrary view, visitation will continue as agreed
in the divorce
settlement agreement.
5.
Within five days of this order, the applicant and respondent, are
directed to initiate the appointment of a psychologist,
either by
agreement or by recommendation of the Health Professions Council of
South Africa, for group therapy with: the applicant,
respondent and
G[...], together with their romantic partners/spouses should they
volunteer, with the view of the applicant and
respondent accepting
their new roles in G[...]’s life.
6.
The costs of the social workers, Mr Bollo and the psychologist shall
be paid by the parties jointly and severally.
7.
The applicant, Professor Tanya Robinson and/or Ginette Hermann are
directed to forthwith, provide to the respondent all
materials, that
did not find its way into the report, but used by the authors during
the evaluation, and/or to record the evaluation.
8.
The applicant is directed to pay 50 per cent of the costs of this
application on a scale as to between attorney and client,
and such
costs to include the costs of senior counsel, where appropriate.
JUDGMENT
Nicholson
AJ
[1]
The
Constitution of the Republic of South Africa echoes the importance of
the concept of the best interests of the child
.
s28(2) of the Constitution reads as follows:
‘
A
child's best interests are of paramount importance in every matter
concerning the child.’
[2]
S
28(2) has been interpreted as creating
an
‘expansive guarantee’ and constitutes, not only a guiding
principle, but also a right.
[1]
The principle of the best interests of the child has also been
incorporated in s 9 of the Children’s Act 38 of 2005 (‘the
Children’s Act’).
[3]
The
right to contact, or to be spared contact, vests primarily in a
child. The statutory definition of parental responsibilities
and
rights includes ‘the responsibility and the right … to
maintain contact with the child.’
[2]
[4]
It is
generally accepted, as was stated in
Terblanche
v Terblanche
,
[3]
that a
court:
‘…
has
extremely wide powers in establishing what is in the best interests
of minor or dependent children. It is not bound by procedural
structures 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, or whatever nature, which may
be able to assist it in resolving custody and related disputes.’
[5]
In
F.J
v E.J
[4]
it was
held, at paragraph 20, that:
‘…
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 interests of the child.’
[6]
Initially, I intended to deliver a judgment with reasons to follow;
however, after hearing the argument presented by counsel,
and having
taken some time to reflect and considered this matter, my view
changed. I now believe that it would be in the best interest
of
G[...] that my order should provide a path for a more permanent
solution. Therefore, I now provide reasons herewith.
[7]
This matter is extensive, encompassing various applications,
counterapplications, and a trial, resulting in a record exceeding
2
000 pages, including numerous expert reports. Upon reviewing all the
documents, it is evident that both parents, the applicant
and the
respondent, deeply care for G[...] and are motivated by her best
interests. The applicant seeks to establish a relationship
with his
daughter, while the respondent aims to protect her.
[8]
Before me is an urgent application and a counter application. In the
urgent application, the applicant seeks various orders
to ensure
cooperation between the applicant and the respondent regarding
visitation, access, and the primary residence of his minor
daughter,
G[...] D[...]. This request is based on a court-ordered forensic
psychological evaluation, which determined that the
applicant does
not pose a danger to G[...]. Given the history of this matter, the
applicant also requests psychological intervention
for the respondent
to facilitate acceptance of the applicant’s role in G[...]’s
life. G[...], currently six years old,
is the child of both the
applicant and the respondent, who have since divorced.
[9]
On the morning of this hearing, the respondent filed an answering
affidavit and a counter application. Consequently, I
was not provided
with a replying affidavit. Accordingly, much that was said in
opposition to the answering affidavit was not under
oath but rather
statements from the Bar. The answering affidavit opposes the relief
sought by the applicant and seeks various ancillary
relief, which
includes the repayment of her portion for the court-ordered
evaluation report, together with a direction that it
is to be
provided with materials used by the authors of the report used during
the evaluation, and/or to record the evaluation.
[10]
The respondent opposed the application both on urgency and the
merits. The opposition on the merits is very crisp and
may be
summarised as follows: Pitman AJ requested a comprehensive forensic
psychological evaluation; however, neither Professor
Tanya Robinson
nor Ginette Hermann, the co-authors of the report, are psychologists.
Therefore, the report does not meet the expectations
of the parties,
including Pitman AJ, and the findings are deemed incompetent due to
the authors' lack of proper qualifications.
[11]
Mr
Phillips,
who appeared for the respondent, further stated
that the language used in the report suggests a psychological
evaluation and diagnosis,
and such diagnosis is incompetent because
the authors are social workers and not psychologists. It is
instructive that the fact
that the two authors of the report are not
psychologists is common cause and apparent from the report itself.
[12]
Mr
Stokes,
who appears for the applicant, stated that Pitman
AJ as well as the respondent had full access of the authors’
CVs before
their appointment and did not raise any queries as to the
qualifications. Therefore, they cannot now claim ignorance of the
authors’
status as social workers rather than psychologists.
The applicant avers that the authors are competent and qualified to
provide
the court with an opinion.
[13]
While it is true that all the parties including the judge had access
to the CVs of the authors of the report, one must
bear in mind that
the background to this is that this application was brought on an
urgent basis, and therefore their scrutinising
of the CVs of the
authors, may not have enjoyed the detail required.
[14]
On or about 2 September 2024, after a lengthy trial, where the
respondent attempted to vary the terms of their divorce
order in as
far as access and visitation of G[...] is concerned, Shoba AJ handed
down judgment, wherein she dismissed the respondent’s
application and found, inter alia, the respondent had manipulated an
expert, who had produced an expert report for the trial, to
make
findings favourable to her version. The applicant was, accordingly,
afforded unsupervised visitation with G[...].
[15]
Prior to the judgment and while waiting for judgment to be handed
down, in light of various allegations of sexual misconduct
involving
G[...] and the applicant, the applicant was afforded supervised
visitation with G[...] only. I understand that it took
approximately
one year to hand down judgment and during this time, the applicant
was only afforded very limited supervised visitation
with G[...].
[16] Given the fact
that the applicant was only afforded limited supervised access over
such a lengthy period, his anxiousness
to have the visitation with
G[...] resolved is understandable.
[17]
To better understand my conclusions and order below, a brief
background of how this urgent came to be prosecuted is necessary:
(a)
On or about 16 September 2021, after entering a settlement agreement,
the applicant and the respondent
divorced unopposed. The terms of the
settlement agreement provided, inter alia, for appropriate
unsupervised visitation by the
applicant.
(b)
On or about 7 October 2021, the respondent brought an application for
a variation of the divorce
settlement agreement. It was during this
application that it was for the first time brought to the attention
of the court, that
the respondent suspected that the applicant may
have perpetrated a sexual misconduct with G[...]. The evidence before
Shoba AJ
is that the respondent, notwithstanding as early as 26
November 2019 suspected the applicant of sexual misconduct, signed
the settlement
agreement in June 2021.
(c)
On or about 10 April 2023, the respondent brought an application
that, pending the variation application,
all visitation between
applicant and G[...] be suspended, which was granted.
(d)
On or about 6 October 2023, when Shoba AJ reserved judgement, she
directed that the applicant
has contact with G[...], every
alternative Saturday for three hours.
(e)
On or about 2 September 2024, Shoba AJ handed down judgement, wherein
she inter alia, dismissed
the 2021 applications and reinstated the
settlement agreement. Accordingly, the applicant was entitled to
exercise unsupervised
access with G[...], including overnight visits.
(f)
On 6 September 2024, the applicant brought a contempt of court
application against respondent
for her non-compliance with the
settlement agreement. The rule nisi was granted; accordingly, the
applicant was granted unsupervised
access to G[...].
(g)
On 6 September 2024, the respondent filed an application for leave to
appeal against the judgment
by Shoba AJ and a counter application
wherein they sought an interim order pending the appeal; that the
applicant and G[...] be
afforded supervised access every alternative
weekend. The counter application was unsuccessful.
(h)
The unsupervised access to G[...] was short lived; because on the
return day of the rule nisi,
25 September 2024, due to a report made
to the supervising social worker, the applicant was only afforded
supervised access to
G[...].
(i)
On or about 25 September 2024, Pitman AJ handed down an order, to
inter alia appoint experts
to compile a psychological report, as
follows:
‘
1.
Both Prof Tanya Robinson and Ginette Hermann (hereinafter the
appointee) are immediately
jointly appointed by the Court, (all costs
of whom are to be paid by the parties jointly and severally) with the
following urgent
mandate:
a. To
conduct immediately and expeditiously a comprehensive forensic
psychological evaluation of G[...] D[...].
b. …’
(j)
On or about 23 October 2024, Professor Robinson and Ginette Hermann
filed a report (‘the
Report’), regarding the evaluation
of G[...], the applicant and the respondent. The report concludes
inter alia that the
applicant is not a danger to G[...], and
therefore, the applicant should be afforded unsupervised visitation.
(k)
On 24 October 2024, the respondent, per email advised the applicant
that: it does not accept the
findings of the report and seeks access
to the documents used during the assessment leading up to the report,
and intends bringing
an urgent application for the documents, if they
are not provided by the applicant.
(l)
On or about 28 October 2024,
[5]
the applicant filed an urgent application, which was set down for 30
October 2024, wherein the applicant seeks to be afforded unsupervised
visitation.
[18]
In opposition to the matter being heard on an urgent basis, the
respondent contends that the applicant has recently filed
two urgent
applications with very short notice. Consequently, the respondent has
had insufficient time to adequately respond to
the applicant’s
allegations and/or thoroughly review the expert report, leading to
decisions being made hastily, which may
not serve the best interests
of the child. Mr Phillips also suggested that the matter was
scheduled on short notice to provide
the applicant with an unfair
advantage, though I am uncertain of the accuracy of this claim. As
previously mentioned, given that
the applicant has only had limited
supervised access to G[...] for over a year, his eagerness for prompt
compliance with the settlement
agreement is understandable.
[19]
I do, however, agree with the other submissions on urgency. Setting
these matters down on such short notice, is an abuse
of the latitude
afforded to practitioners in deserving cases, in terms of Rule 6(12)
of the Uniform Rules, that regulate timeframes
to prosecute matters
ahead of pending cases on the court role. Urgency is not for the
taking and is available only in deserving
cases.
[20]
In
East
Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty) Ltd
and Others
,
[6]
at paragraphs 6, it was held:
‘
[6] …the
procedure set out in rule 6(12) is not there for taking. An applicant
has to set forth explicitly the circumstances
which he avers render
the matter urgent. More importantly, the Applicant must state the
reasons why he claims that he cannot be
afforded substantial redress
at a hearing in due course. The question of whether a matter is
sufficiently urgent to be enrolled
and heard as an urgent application
is underpinned by the issue of absence of substantial redress in an
application in due course.
The rules allow the court to come to the
assistance of a litigant because if the latter were to wait for the
normal course laid
down by the rules it will not obtain substantial
redress.’
[21]
In
Maqubela
v South African Graduates Development Association and Others
[7]
at paragraph 32, the court observed:
‘
Whether a matter
is urgent involves two considerations. The first is whether the
reasons that make the matter urgent have been set
out and secondly
whether the applicant seeking relief will not obtain substantial
relief at a later stage. In all instances where
urgency is alleged,
the applicant must satisfy the court that indeed the application is
urgent. Thus, it is required of the applicant
adequately to set out
in his or her founding affidavit the reasons for urgency, and to give
cogent reasons why urgent relief is
necessary. As Moshoana AJ aptly
put it in
Vermaak
v Taung Local Municipality
:
“
The consideration
of the first requirement being ‘why is the relief necessary
today and not tomorrow’, requires a court
to be placed in a
position where the court must appreciate that if it does not issue a
relief as a matter of urgency, something
is likely to happen. By way
of an example if the court were not to issue an injunction, some
unlawful act is likely to happen at
a particular stage and at a
particular date.”’
[22]
In
D.D
v I.L
and
Another,
[8]
at paragraph 26, the court asserts:
‘
I am not convinced
that there are compelling reasons to have brought this matter on
urgency. The urgency was self-created and does
not meet the
requirements set out in rule 6(12) of the Uniform Rules of Court,
where a litigant is required to set forth its reasons
why they cannot
be afforded substantial redress at a hearing in due course. A few
more months would not prejudice the minor who
is barely 3 years of
age and still on nappies. An additional few months or two, to allow
for the processes to follow to enable
both parties to consider what
will be in the best interests of the child, should follow.’
[23]
In this court, cases dealing with children are usually seen as
inherently urgent, because this court is the upper guardian
of all
minor children, and unlike in other cases, where the test for urgency
is, ‘an absence of substantial redress should
the matter be
heard in the normal course’, in matters involving minor
children the test is, ‘the best interest of the
child’.
However, in this matter there is no allegation that the child was in
any danger or harm; accordingly, the urgency
does not seek to serve
the best interest of the child but seeks to serve the interest of the
applicant.
[24]
To clarify, it is not my opinion that this matter lacks urgency.
However, I do not believe it warrants the extremely
short notice
given for the last two urgent applications filed by the applicant.
[25]
In considering Rule 8 of
the Labour Court rules, the Constitutional Court in
Jiba
v Minister of Justice and Constitutional Development and Others
[9]
at paragraph 18 stated that:
‘
Rule 8 of the
rules of this court requires a party seeking urgent relief to set out
the reasons for urgency, and why urgent relief
is necessary. It is
trite law that there are degrees of urgency, and the degree to which
the ordinarily applicable rules should
be relaxed is dependent on the
degree of urgency.’
[26]
As I have already mentioned, the applicant understandably is keen to
have unsupervised access with G[...]. However, and
while I accept
that it is in the best interests of G[...] to have a normal
relationship with the applicant as soon as possible,
the anxiousness
of the applicant to resume normal visitation with G[...], is not, in
my view, a relevant consideration, when considering
urgency.
[27]
Since, notwithstanding the very short service, the matter is already
before me, I am of the view that it would not be
in the best
interests of G[...] to simply have it struck from the role but to
rather provide a more permanent solution.
[28]
There are several issues in this matter that pertain to both
applicant and respondent, that concern me, which do not
seem to have
been entertained in any of the reports:
(a)
Firstly, the respondent, notwithstanding suspecting the applicant of
sexual misconduct in November
2019, allowed the applicant
unsupervised visitation with G[...] until October 2021, and even
signed a settlement agreement in June
2021, allowing the applicant
unsupervised access to G[...].
(b)
Secondly, the respondent appears to have a distrust for any experts,
even those that she appoints,
and gives the impression the only
answer that she will accept, is that the applicant is abusive. The
applicant has been exonerated
by most of the experts, the police,
independent social workers who work with abused children, by a court
appointed expert and by
the court; yet the respondent does not accept
the outcome.
(c)
Thirdly, when the applicant was presented with potential evidence of
a sexual misconduct
[10]
against G[...], he acted very nonchalant. While there may have been a
very innocent explanation, his attitude seemed to be that
it was not
him, without considering that it may be someone else, perpetrating
these despicable acts while G[...] is in his care;
and for the sake
of G[...], taken some time to give it some consideration, and to put
the respondent at ease.
(d)
Fourthly, the applicant without considering the impact that immediate
overnight access will have
on G[...], appears to seek overnight
visitation with G[...] without a settling period. I do not believe
this to be in the best
interest of G[...].
[29]
The issue before me is narrow and can be summarised as follows. There
has been quite serious and concerning allegations
that have been made
by G[...] as recently as September of 2024, and there are recent
recordings that suggest some nefarious conduct,
which took place
after the Shoba AJ judgment. To thoroughly investigate these
allegations, Pitman AJ ordered that G[...], the applicant,
and the
respondent undergo assessments by Professor Tanya Robinson and
Ginette Hermann, resulting in a comprehensive forensic psychological
evaluation. The evaluation has been completed, and the report has
been presented, exonerating the applicant.
[30]
The respondent rejects the findings in the report, not on its
content, but on account of the authors not been experts;
because the
court called for a ‘psychological’ evaluation, which
suggests that the evaluation should be done by a psychologist,
while
the authors are social workers.
[31]
Whether the report is a that envisaged by Pitman AJ, in my view, is
irrelevant to the question of what is in the best
interests of the
minor child. A better conceptualisation is whether this report is
helpful in determining the best interests of
G[...]. Accordingly, I
decline to consider that question as it is irrelevant.
[32]
In an article appearing
entitled ‘
The
law and social work, with particular reference to the role of the
private social work practitioner
’
[11]
,
the learned authors opined:
‘
The social work
degree is awarded after four years of study at one of the recognized
universities, with social work, psychology
and sociology as major
subjects. Ancillary subjects vary with the universities and include
social law, communications theory, criminology,
anthropology and
philosophy. The main emphasis is on social work which is very broad
in its scope.
The unique aspect of
social work training is its focus on the functioning of clients
within various social systems, such as the
family, the workplace,
school and broader social systems. It is the understanding of
personal social functioning of clients within
their environmental
contexts which gives a dynamic quality to assessments done by social
workers regarding human problems and the
potential of people for
change and growth. Particular attention is paid to the primary social
system, the family, with all its
cultural and sub-cultural
variations, as well as the societal structures, economic, political
and social, which exert influence
or evoke stress in the family or
its individual members.’
[12]
Further,
it was further stated that:
‘
A social worker's
intervention, investigation and report can assist the magistrate as
regards the best interests of the children
and division of assets.
While reconciliation and conciliation work can be interdisciplinary
involving other professionals such
as psychiatrists and
psychologists, the social worker as a social scientist is equipped in
terms of experience and training to
watch the interests of the family
and to present psycho-social reports to a court of law. Social
workers need the assistance of
their legal counterparts to acquire a
greater understanding of how they are expected to conduct themselves
in a court of law.’
[13]
[33]
The credentials and the fact that the authors of the report are
qualified Social Workers are common cause. A perusal
of their CV’s
and profile demonstrate that both authors have extensive experience
in dealing with complex family matters
and ‘vulnerable family
dynamics’.
[34]
Professor Robinson, apart from her undergraduate studies, where she
majored in sociology, psychology and social work;
has four PhD’s,
in the areas of: clinic and forensic social work, psychosocial legal
science and forensic science, and criminal
justice. She has also
authored extensive academic work in this area of research and
possesses strong expertise in this field.
[35]
Ms Janette Hermann has various undergraduate qualifications and is in
the process of completing a master’s in social
science in
Criminal Justice Social Work focusing on Forensic Social Work. She
has received international training in Forensic Interviewing
of
Children from the United Nations in Safeguarding Children, The Voice
of The Child, Parent-Child, Attachment, Socio-Emotional
Assessment,
Parental Responsibilities and Rights, Gender-Based Violence and
Femicide, and Sexual Exploitation and Abuse.
[36]
It is apparent that, not only are the authors very qualified and
accomplished in their fields, but they have also spent
a large
portion of their careers advocating for vulnerable groups with very
complex issues, including sexual abuse. In the circumstances,
I do
find that they are competent to provide an evaluation in this matter.
[37]
Fundamentally, a social worker is concerned with the welfare of
individuals, often overlapping with the field of psychology.
The
report concludes that the applicant does not pose a risk to G[...]
and that her wellbeing is maintained while in the applicant's
care.
However, the report also indicates that G[...]'s wellbeing is
jeopardised by the ongoing evaluations and scrutiny, which
should
cease. Although I do not concur with the recommendations in the
report, I agree with these conclusions.
[38]
As I have already mentioned, I have read through the entire court
file, and I do not get the impression that the applicant
is a danger
to G[...] or has perpetrated the acts he is alleged to have
committed. Accordingly, I agree with the comments of Shoba
AJ, when
she states:
‘
From
the evidence tendered; the applicant wants the court to believe that
despite the fact that the respondent was aware that the
child was
monitored or inspected, he escalated the abuse of the child to poking
her vagina and bottom. It can be deduced from that
evidence presented
by Ms Cottrell, that the applicant wants the court to accept that the
main reason the respondents would continue
abusing the child, whilst
knowing that he was being observed, was that he is a narcissist who
does not accept responsibility for
his actions.’
[39]
My conclusion is reinforced by the fact that, not only was this
matter assessed by experts appointed by the parties,
but also by the
South African Police Services, Child Protection Unit, an NGO,
dedicated to the welfare of children who have been
exposed to sexual
abuse, and by a court appointed expert; all of which exonerate the
applicant.
[40]
Further, I have had some experience dealing with abused children. I
have been a Magistrate in the family court, I have
presided over rape
matters involving children and, as a policeman, I have investigated
rape cases involving children. In all rape
matters, without
exception, my experience has been that the perpetrator would always
threaten the child or bribe the child not
to disclose the nefarious
conduct. I have read through all the accounts to the experts, and I
have perused the transcript; I have
not found any account of the
applicant either allegedly threatening G[...] or bribing her. This,
leads me to believe that the abuse
did not take place.
[41]
Notwithstanding these findings, given the protracted timeframe it
took to get to this point, mindful of the recommendations
made in the
report, who recommends a ‘ripping the Band-Aid’ approach
to resume overnight visits; I do not believe it
is in G[...]’s
best interests that she immediately resumes contact with the
applicant in terms of the settlement agreement,
without a phased in
approach, and without attempting to alleviate the anxiety of the
respondent. To that end, I have structured
an order below, which
should promptly facilitate the applicant’s access to G[...] in
terms of the settlement agreement.
[42]
G[...], during her short life, has experienced lots of change. From
being an only child, living with both parents. She
is now living with
her mother and visits with the applicant. Both the applicant and
respondent have moved on from each other, with
the respondent
remarrying and having a child, currently 16 months, with her new
husband, and the applicant having a new romantic
partner. In
addition, G[...] has experienced the tragic loss of her maternal
grandfather, with whom, she was very close.
[43]
It is convenient to mention at this point, that I have considered the
applicant’s request for the sharing of the
primary residence.
While I am certain that once the applicant and respondent are in a
better space, this may be considered in the
future. However,
considering that G[...] now has a younger sibling with whom she would
need to bond, and all the prodding by social
workers and
psychologists that she has gone through over the years, I am not
convinced that a case has been made out at this point
for the sharing
of primary residence. My view is that G[...] should be given the
opportunity to settle down and not endue yet another
change.
[44]
The report suggests that G[...] has adjusted very well to all these
changes, yet there are still the recordings and videos
where G[...]
accuses the applicant of sexual misconduct. The report suggests the
respondent may, intentionally or unintentionally,
be putting these
ideas in G[...]’s head. Another possibility may well be
G[...]’s way of coping with all these changes.
Her parents have
concerned themselves with visitation and seems to have paid little
attention to the needs of G[...]; the respondent
wants visitation to
stop, while the applicant wants visitation with G[...] to be
normalised. Absent from all this, is G[...]’s
voice.
[45]
In
D.D.K
v R.M.B.D.K & Van Aswegen NO,
[14]
the court found at paragraphs 36 and 37 as follows:
‘
[36]
A
curator
ad litem
is appointed to safeguard the best interests of the child, usually
when the child does not have parents or a guardian; or the parent
or
guardian cannot be found; or if the interests of the minor conflict
with those of the parent or guardian; or if the parent or
guardian
unreasonably refuses or is unavailable to assist the child.
Ultimately, the duty of a curator ad litem is to assist
the Court and
the child during legal proceedings, and to look after the child's
interests. In doing so, it is likely that,
in executing the
court ordered mandate, that the
curator
ad litem
will irk one or both parents.
[37]
Unlike the Family Advocate, the role of the curator ad litem is not a
neutral one. The curator is there to
represent the interests and
advance the case of the child concerned. A
curator ad litem
is to speak for the child concerned, and not just on the child’s
behalf, to enable their voice to be heard. A
curator ad
litem
cannot and is not mandated to follow a child’s
instructions. This is the major difference between a curator and a
legal representative,
and perhaps the greatest source of
disappointment for especially older children and their parents.’
[46]
As I have already mentioned, this matter is voluminous, but up to
this point, the litigation has been taking place without
G[...]’s
voice and or views. The appointment of a curator will in my view go a
long way to assist and guide the court with
a view that considers
G[...]. I have perused the CV of Claudio Bollo and find him suitably
qualified to act as curator ad litem
in this matter.
[47]
I further agree with appointments of Elmairie Booysen to provide
G[...] with emotional support and Ms Janette Hermann
as a
coordinator.
[48]
My view is that G[...]’s well-being is dependent on the
well-being of both the applicant and the respondent, and
more
especially the respondent since she is the primary care giver. The
respondent must accept the role of the applicant in G[...]’s
life and be comfortable that G[...] is safe when visiting with the
applicant. To achieve the aforementioned, and to allow G[...]
to get
use to the new schedule, my view is that overnight visitation should
remain suspended for the next four weeks. Thereafter,
visitation in
terms of the settlement agreement will continue, unless wither Ms
Hermann or Mr Bollo are of the view that the overnight
visits remain
suspended for a longer period.
[49]
Regarding the counter application, the applicant has not made out a
case for the money judgement, and accordingly, must
be refused.
However, regarding the alternative relief, from what I have read in
the file, these issues appeared to have been agreed
too, and I see no
prejudice should the information be provided; accordingly, the
counter application must succeed in that regard.
[50]
Regarding costs, neither party received all the relief that they
claimed, in the circumstances, normally an order will
be made that
each party pays its own costs. However, since this matter should not
have been brought with a mere two days’
notice, I am of the
view that a punitive costs order is required against the applicant
for at least some of the costs.
Order
[51]
In the circumstances, I make the following order:
1. Ms Janette
Hermann is appointed as a social worker case co-ordinator with the
following functions:
(a) To facilitate
and ensure that during the handing over of G[...] D[...], both to and
from the respondent, which will be
described below, either Elmarie
Booysen and/or Li Anne Oberholzer must be present to ensure the
wellbeing of G[...].
(b) To receive
weekly update reports from Elmarie Booysen and/or Li Anne Oberholzer
regarding G[...]’s wellbeing.
(c) At her
discretion, ensure appropriate emotional support for G[...], if
necessary.
(d) Decide, if
after four weeks, it is in the best interests of G[...] for
visitation to continue in terms of the divorce
settlement agreement.
(e) Share all
reports with Mr Bollo, who I refer to below.
(f) In the event of
any further litigation, to provide the court with a report, whether
the relief sought is in the best interest
of G[...].
2. Claudio Bollo is
hereby appointed as G[...]’s curator ad litem, with the
following functions:
(a) To assess all
the legal documents and liaise with Ms Hermann to determine what is
in the best interests of G[...].
(b) With the
assistance of Ms Hermann, to conduct interviews with G[...], the
applicant and the respondent, and other persons
he deems relevant.
(c) In the event of
any further litigation, to provide the court with a report, whether
the relief sought is in the best interest
of G[...].
(d) To institute
litigation, should he deem it in the best interest of G[...].
3. For the next
four weeks after the granting of this order, the applicant may enjoy
contact with G[...] D[...] as follows:
(a) Unsupervised
visitation on alternate weekends on Saturday and Sunday from 8h00 to
16h00, and alternate Wednesdays and
Fridays from 14h00 to 17h00.
(b) Daily telephone
and/or video calls between 17h00 and 18h00, and the respondent is
directed to ensure that G[...] is reasonably
able to receive these
calls.
9. On the expiry of
the four weeks, unless Mr Bollo and Ms Hermann holds a contrary view,
visitation will continue as agreed
in the divorce settlement
agreement.
10. Within five
days of this order, the applicant and respondent, are directed to
initiate the appointment of a psychologist,
either by agreement or by
recommendation of the Health Professions Council of South Africa, for
group therapy with: the applicant,
respondent and G[...], together
with their romantic partners/spouses should they volunteer, with the
view of the applicant and
respondent accepting their new roles in
G[...]’s life.
11. The costs of
the social workers, Mr Bollo and the psychologist shall be paid by
the parties jointly and severally.
12. The applicant,
Professor Tanya Robinson and/or Ginette Hermann are directed to
forthwith, provide to the respondent all
materials, that did not find
its way into the report, but used by the authors during the
evaluation, and/or to record the evaluation.
13. The applicant
is directed to pay 50 per cent of the costs of this application on a
scale as to between attorney and client,
and such costs to include
the costs of senior counsel, where appropriate.
NICHOLSON
AJ
Date
heard:
30
October 2024
Handed
down:
27November
2024
APPEARANCES
Counsel
for the applicant
Instructed
by:
Advocate
Andre Stokes SC
Venns
Attorneys
30
Montrose Park Boulevard
Victoria
Country Club Estate
Peter
Brown Drive
Montrose
Pietermaritzburg
3201
Ref:
C Blackmore/PM/55246527
Counsel
for the respondent:
Instructed
by:
Advocate
Dave Phillips SC
Shepstone
& Wylie
24
Richefond Circle
Ridgeside
Office Park
Umhlanga
Rocks
4319
Ref:
EDW/sg/DAVE411180.1
[1]
S
v M
2007]
ZACC 18
;
2008 (3) SA 232
(CC);
2007 (12) BCLR 1312
(CC);
2007 (2)
SACR 539
(CC) para 22.
[2]
S 18(2)
(b)
Children’s
Act 38 of 2005.
[3]
Terblanche
v Terblanche
1992
(1) SA 501
(W) at 504.
[4]
F.J
v E.J
[2008]
ZAWCHC 27; 2008 (6) SA 30 (C).
[5]
The notice of motion is dated 26 October 2024, and the Founding
Affidavit was commissioned on the 25 October 2024.
[6]
East
Rock
Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty) Ltd and
Others
[2011]
ZAGPJHC 196.
[7]
Maqubela
v South African Graduates Development Association and Others
[2014]
ZALCJHB 38;
[2014] 6 BLLR 582
(LC); (2014) 35 ILJ 2479 (LC).
[8]
D.D v
I.L and Another
[2024]
ZAWCHC 215.
[9]
Jiba
v Minister of Justice and Constitutional Development and Others
[2009] ZALC 57
; (2010)
31 ILJ 112 (LC); [2009] 10 BLLR 989 (LC).
[10]
The lipstick incident.
[11]
M A O'Neil and D M Connell ‘
The
law and social work, with particular reference to the role of the
private social work practitioner’
(1986)
De Rebus 564-565.
[12]
Ibid
at 564.
[13]
Ibid
at 565.
[14]
D.D.K v
R.M.B.D.K & Van Aswegen NO
[2023]
ZAGPJHC 382.