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F. BEZUIDENHOUT AJ:
INTRODUCTION
[1] This application in terms of rule 43(6) came before me as a special
allocation . It concerns an applicant father’s contact with his minor daughter,
who is presently 7 years old.
[2] On the 10th of September 2020 Crutchfield J granted the following rule 43
order pendente lite : -
“1. That the applicant and the respondent remain coholders of all
parental responsibilities and rights in respect of the minor
child, P.
2. That primary residence of the minor child shall remain with the
respondent subject to the applicant’s rights of contact with the
minor child as follows:
2.1 Telephonic contact or contact by other audio means,
between the hours of 18:00 and 18:30 which contact
shall be facilitated and monitored by the respondent;
2.2 The telephonic contact shall take place on every
alternate weekday, which will commence on
11 September 2020;
2.3 Contact every weekend on either a Saturday or a
Sunday, alternating between the hours of 10:00 and
12:30 commencing on the 19th of September 2020;
2.4 Contact on one weekday each alternate week, between
the hours of 16:00 to 18:00, such day to be arr anged
between the parties and the social worker. This weekly
contact will commence from 11 October 2020.”
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[3] The order further provided for :
3.1 the appointment of a social worker who would supervise the
applicant ’s contact and interdicted the applicant from inter alia
discussing anything regarding an alleged incident that occurred on
the 7th of March 2020 involving the minor child .
3.2 the automatic terminat ion of the contact if the applicant was arrested
or charged by the South African Police Services arising from the
alleged incident of 7 March 2020.
3.3 either of the parties who may approach the court to vary the terms
of the order by supplementing the affidavits filed of record , which the
applica nt has now done by way of this application ( “the
application” ) before me.
[4] The applicant seeks , inter alia :
4.1 unsupervised midweek, weekend and holiday contact, which include
sleepovers ;
4.2 an order entitling him to attend all school functions, school events,
parent/teachers meetings, church activities and extracurricular
activities in which the minor child participates ;
4.3 an order directing the respondent to cooperate with the inquiry of the
Family Advocate and to ensure that the minor child attends such
inquiry ;
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4.4 the appointment of Dr Robyn Fasser ( “Dr Fasser ”) to conduct an
investigation into the best interests of the minor child and to provide
the parties and the court with her written report setting out her
opinions, findings and recommendations regarding the exercise by
the parties of their parental responsibilities and rights, including
those of care and contact in respect of the minor child .
[5] As an alternative, the applicant seeks an order that the supervised contact,
should it continue, be either at a child -friendly venue or at the applicant’s
place of residence.
[6] The respondent seeks a dismissal of the application with costs on a punitive
scale. The respondent asserts that should the court find it necessary for an
expert to be appointed, then it should be Pro f Gertie Pretorius mandated to
assess the minor child to ascertain what really happened to the minor child
in relation to the events of the 7th of March 2020.
[7] When the applicant enrolled the application on the ordinary Rule 43 roll on
12 June 2023, t he res pondent brought an application to postpone the
rule 43(6) application . In addition, she applied for condonation for the late
filing of her sworn opposing affidavit. Both the postponement and
condonation application was opposed and answering papers were fil ed.
However, t he parties agreed to postpone the application to another date
and to the late filing of the respondent’s opposing papers . Costs occasioned
by both applications were reserved for later determination.
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ISSUED TO BE DETERMINED
[8] This court has thus been called upon to determine the following issues: -
[8.1] Whether a material change in circumstances exists that justifies a
variation of the Rule 43 order.
[8.2] Whether the order granted by Crutchfield J should be varied in the
manner claimed by the applicant;
[8.3] Whether Dr Fasser should be appointed to investigate the best
interests of the minor child;
[8.4] Whether the respondent should be directed to operate with the
Family Advocate and to make the minor child available for attendance
at the office of the Family Advocate;
[8.5] Whether Prof Pretorius should be appointed to assess the minor child
with a view to ascertaining what really happened to the minor child
in relation to the events of the 7th of March 2020;
[8.6] Who should bear the costs of th e application in terms of rule 43(6) ,
and of the postponement and condonation application s.
THE FACTS
[9] The parties were married to each other on the 1st of October 2015 out of
community of property with the application of the accrual system.
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[10] One minor child, a girl was born of the marriag e on the 13th of
December 2016.
[11] The applicant instituted a divorce action against the respondent during
July 2020. It is opposed and still pending. A trial date has as yet not been
allocated.
[12] On the 7th of March 2020 th e applicant and the minor child visited the
applicant’s brother, family members and others.
[13] On the 8th of March 2020 the respondent informed the applicant that the
minor child had made a report of abuse of a sexual nature as a result of
which she was tak en to a general practitioner and by her treating
paediatrician .
[14] The applicant continued to exercise contact with the minor child from
9 March 2020 to approximately 18 March 2020 by collecting her from
school and spending time with her. From 18 March 2020 u ntil the order was
granted by Crutchfield J, the applicant exercised no physical contact with
the minor child.
[15] The police investigation was completed and the docket was sent to the office
of the Director of Public Prosecution (“ DPP”). The DPP declined to prosecute
on the basis that there was no reasonable prospect of a successful
prosecution.
[16] The respondent did not accept the decision of the DPP and instituted review
proceedings.
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[17] On 1 June 2023 the National Prosecuting Authority ( “NPA”) advised that it
had called for the docket and the reasons for the DPP declining prosecution.
The NPA received the DPP’s report as well as copies of the case docket on
30 August 2023.
[18] On the 5th of October 2023, after the hearing of this application the NPA
advised that it decided, after careful consideration of the evidence, not to
proceed with charges against the applicant.
THE APPLICANT ’S CASE
[19] It was the applicant who applied to court for supe rvised contact “out of
caution and to prevent any allegations of improper conduct on [his] behalf” .
[20] The respondent alleged that the applicant was a suspect because the minor
child “indicated that the applicant was fully aware of what occurred on the
7th of March 2020 at D’s home” .
[21] The applicant was not present when the minor child was examined by the
general practitioner , but he met with the doctor together with the
respondent after the examination. The doctor told them that there was no
physical eviden ce of sexual abuse, but that as a matter of caution the minor
child would be prescribed antiretroviral medication.
[22] On the evening of 8 March 2020 the parents agreed to take the minor child
to her treating paediatrician for a second opinion as they were bo th
concerned about the effect of antiretroviral medication on the minor child.
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[23] Pursuant to the events of 7 March 2020, the applicant continued to collect
the minor child from school on Monday, 9 March 2020 and until
17 March 2020. This position changed wh en on 18 March 2020 the
respondent failed to answer telephone calls from the applicant and
thereafter refused to allow any contact to the minor child.
[24] Prior to 18 March 2020, the applicant cared for the minor child each
afternoon during that period. After 8 March 2020 and until the applicant’s
physical contact was terminated about a week later, the minor child showed
no signs of trauma, made no disclosures to the applicant that she had been
hurt by any third party and made no reference to any incident tha t had
occurred on 7 March 2020.
[25] On 8 March 2020 the respondent opened a criminal complaint at the local
police station. The applicant was informed that the complaint related to the
minor child’s alleged sexual abuse on 7 March 2020 whilst in his care and
visiting the home of the applicant’s brother.
[26] The applicant gave a witness statement to the South African Police Service
(“SAPS” ) and witness statements of the applicant’s brother, sister -in-law,
the domestic helper and their three children were taken . The names and
contact details of the applicant’s brother’s two friends were also provided
to the SAPS. Both of the friends were interviewed as witnesses and witness
statements were taken during about June 2022. The applicant agreed to
and underwent a po lygraph test on 1 June 2022.
[27] The applicant asserts that the minor child has never alleged that the
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applicant sexually abused her or physically harmed her. The respondent has
refused to provide any details of the police investigation to the applicant or
to discuss any aspect of the minor child’s care with him.
[28] The applicant requested the Family Advocate to convene an inquiry. On
23 June 2022 the respondent advised through her attorneys that she was
not willing to submit to any investigation by the Family A dvocate and that
the minor child could not be exposed to any investigation by any person or
official who was not a SAPS expert before the criminal investigations and
proceedings have been finalised.
[29] On 1 July 2022 the Family Advocate advised that they had no jurisdiction
to proceed with the inquiry an d closed its file . On 11 July 2022 the
applicant’s attorney requested written reasons for this finding. The
respondent’s attorney stated her position in writing.
[30] On 2 August 2022 the investigating officer advi sed that the applicant was
no longer seen as a person of interest . The respondent objected to the
position taken by the investigating officer.
[31] On 19 August 2022 the Family Advocate addressed a letter to both parties’
representatives and advised that an inq uiry had been rescheduled for
12 October 2022. Notwithstanding the respondent’s objection, the Family
Advocate advised that it had the requisite jurisdiction and that an
appointment would be rescheduled . The rescheduled date provided to the
parties was 20 February 2023. The applicant attended the inquiry. Neither
the respondent, nor the minor child were in attendance.
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[32] During September 2022, after a further seven months had elapsed with no
conclusion being reached and with no evidence that the minor child was
assaulted or sexually abused, the investigating officer advised that he would
seek direction from the senior public prosecutor. Afte this was done, the
investigating officer advised that another social worker would be appointed
to interview the minor child.
[33] During October 2022 the respondent opened a criminal case of contempt
against the applicant and the supervising social worker. The basis of her
complaint as appeared from her affidavit was that the appointed social
worker for su pervised contact had left the applicant outside their practice
alone with the minor child, which the respondent had seen when she arrived
to collect the minor child on 3 October 2020. The investigating officer took
a full statement from the applicant and t he social workers. Nothing came of
the complaint.
[34] On 4 October 2022 the respondent alleged that the social workers and the
applicant had breached the order in that they removed the minor child from
the premises of the social workers and took the child to t he applicant’s
home.
[35] On 6 October 2022 the social worker responded to the allegations and
confirmed that at no point in time did they leave their premises with
the child.
[36] The applicant concludes that his rights and responsibilities towards the
minor child are ignored by the respondent .
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[37] During October 2022 the parties’ legal representatives discussed the
appointment of a forensic psychologist to conduct an assessment regarding
the best interests of the minor child insofar a s parental responsibilities and
rights are concerned, but , although an assessment was agreed to in
principle, the respondent expressed reservations as she was concerned that
an assessment or investigation might interfere with or compromise the
SAPS investigation.
[38] On 8 November 2022 Prof Kruger , the attorney for the applicant, wrote to
Dr Fasser, copying the respondent’s attorney, in which Dr Fasser was
requested to indicate whether in her professional expert opinion a forensic
assessment would in any manner compromise the investigat ion by the
SAPS.
[39] Dr Fasser replied that there would be no compromise of the police
investigation if she were to conduct a forensic investigation or vice versa .
She stated: -
“In my opinion I do not think that an investigation into care and
contact running parallel to a police investigation compromises the
police investigation or vice versa .
I have done this before and the type of assessment I would
conduct would not replicate what I assume would be the kind
of assessment that the police or a social worker w ould
administer in a sexual abuse investigation .” (emphasis added)
[40] Despite Dr Fasser’s advices, the respondent on 9 November 2022
instructed her attorney to advise that she did not agree that Dr Fasser
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should conduct a forensic assessment , because the respondent persisted
that Dr Fasser’s assessment would compromise the police investigation.
[41] The applicant complains that the current supervised contact regime is
artificial, restrictive and frustrating to the minor child and deprives her of
her right to e njoy contact in more natural circumstances and in a more
natural environment. The applicant told the court that the minor child is
upset when told that the contact is to end and has to be prepared in advance
for contact to end. On several occasions the min or child has had a temper
tantrum when told that contact must end and on one occasion she even
threw her shoes over the Durawall to the next -door neighbour’s house in
protest. The minor child has constantly asked to visit the applicant at his
home and to s leep over, which cause s the applicant to come up with
excuses why it is not possible.
[42] The minor child has also repeatedly asked the applicant to come watch her
swim at her school and to participate in a play and athletics. She also has
repeatedly asked why the applicant no longer collected her from school as
he used to and take her home as he used to.
[43] The applicant complains that d uring video calls the minor child is monitored
and there is always someone in the room who distracts her. The device is
placed on a stand in front of a pink curtain in the corner of a room. The
minor child is distracted by the presence of a third party in the room . The
child looks for approval from this third party every time she responds to the
applicant. The applicant stated tha t the minor child is sometimes enticed to
end the call prematurely by being told that she is going to be left behind
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when the others go to the shops or elsewhere.
[44] The respondent refuse s to engage with the applicant concerning the minor
child’s schooling. This was confirmed in a letter dated 7 December 2022
written by the respondent’s attorney: -
“… Your client appears to believe that because a letter was written
(inappropriately as it ha ppens) in which he is alleged not to be a
person of interest in respect of the abuse of his child that he is freed
of responsibility in the matter and that he is entitled without more to
the rights and responsibilities of the child’s parents in accordance
with our law. This is wrong.”
[45] The Family Advocate completed a report dated 6 April 2023 in respect of
the meeting with the applicant in which he concluded in paragraph 36
thereof that: -
“In the current matter, the undersigned is unable to make a
recommendation as only the plaintiff could be interviewed as a result
of the defendant’s non -participation in the process.”
THE RESPONDENT’S CASE
[46] The respondent aver red that there has been no material change in
circumstances as required by Rule 43(6).
[47] The respondent stated that although the police investigation has been
completed, she does not accept the outcome , hence the review. The
respondent argues that the fact that the police investigation has apparently
been completed does not change the circumstance s at all as there has been
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no definitive determination of what the involvement of the applicant was, if
any, on 7 March 2020.
[48] The respondent assert ed that once the DPP has issued a certificate of nolle
prosequi , she intends to take the matter further as s he has been advised
that it is possible for the perpetrators of the acts against the minor child on
7 March 2020 to be pursued through a private prosecution in the courts in
circumstances where the State has declined to do so.
[49] The respondent state d that s he was advised that an investigation by a
psychologist or the Family Advocate prior to a criminal trial will compromise
the determination of the true facts and be confusing for and detrimental to
the minor child. It is for this reason that she denies that any grounds exist
for the appointment of a psychologist to investigate the best interests of
the minor child.
[50] Furthermore, the respondent expressed the belief that any investigation
that occurs in relation to the minor child and the applicant would constitute
an interference in a criminal trial relating to the minor child’s allegations of
sexual abuse.
[51] In the final instance the respondent propose d that Prof Gertie Pretorius be
appointed to carry out an assessment of the minor child with a view to
ascertaining what really happened to her in relation to the events of
7 March 2020 and the involvement, if any, of the applicant therein and for
her to make recommenda tions to the court about the presentation of the
minor child’s evidence in a manner appropriate to limit the trauma to the
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minor child of having to recount the events of 7 March 2020.
[52] The respondent disputes the applicant’s description of the events
surrounding the medical examinations of the minor child. The respondent
denies having laid a criminal complaint against the applicant and states that
it must have been the medical practitioner who first examined her who is
statutorily required to do so.
[53] The re spondent denies all allegation s that the minor child’s contact with the
applicant is frustrated in any way.
[54] The respondent brought an application in terms of rule 43(5) for leave to
file a further affidavit. In her application the respondent t old this court that
the forensic social worker in the employ of the South African Police Service
conducted an assessment of the minor child during the course of the
investigation into the events that occurred on 7 March 2020.
[55] During the course of a telephonic conversation between the SAPS social
worker and the respondent on 12 June 2023, the respondent recorded the
conversation. She attache d a translated transcription . Neither the
translation nor the transcription was attended to by a sworn translator or
reputable and independent transcriber.
[56] The respondent stated that from the content of the conversation it is
apparent that the minor child disclosed incriminating evidence to the SAPS
social worker regarding the sexual assault and that the applicant was
complicit in facilitating the assault, if not an active participant. Apparently
the SAPS social worker told the respondent that there had been a statement
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in the police docket, drafted by the SAPS social worker in the minor chil d’s
own words to the effect that the applicant told her to go to the bedroom
with the perpetrator.
[57] It was alleged that the statement had been removed from the docket which
is the main reason why the decision was taken not to prosecute the
applicant. This is according to the respondent.
OBJECTION TO AFFIDAVIT IN TERMS OF RULE 43(5)
[58] The applicant oppose d the respondent’s application for leave to adduce a
further affidavit. He oppose d the application on the following grounds: -
59.1 The allegations relating to the SAPS social worker are hearsay, have
no probative value and no weight can be attached to such
allegations. It is not in the interest of justice that the court admits
such hearsay evidence;
59.2 The alleged transcript of a partial conversation alleged to be
between the SAPS social worker and the respondent is not a
comprehensive and full transcript of the conversation, there is no
proof that it is accurately transcribed by an independent third party,
there is no proof from an independent third party that the
translation is accurate and no weight can be attached to the
transcription;
59.3 The hearsay evidence alleged to emanate from the SAPS social
worker was known to the respondent prior to the delivery of her
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replying affidavit;
59.4 The allegations made by the resp ondent as to the reason why the
DPP declined to prosecute are speculate and in fact contradictory to
the allegations made by the respondent in her replying affidavit.
[59] The applicant alleges that the respondent is not bona fide in that she seeks
to introduc e without any context as to time or place an additional allegation
which is at variance with the allegations set out in the rule 43 application
and in the replying affidavit.
[60] As far as the alleged missing statement from the docket is concerned, the
applic ant denie d that the minor child could have written the words as
alleged by the speaker in the transcription because she cannot write in the
manner alleged if she was only 6½ years of age. The applicant denie d that
he told the minor child to go to the bedroom with the perpetrator.
EVENTS SUBSEQUENT TO THE HEARING OF THIS APPLICATION
[61] It is common cause that during the hearing of this application there was
still no outcome regarding the review process. The part ies were requested
to keep the court apprised of any developments in this regard.
[62] For the sake of transparency, all subsequent correspondence exchanged
with my then registrar regarding the NPA review is set out in this judgment.
[63] On 13 October 2023 Prof Kr uger, copying Mr Holtmann (the respondent’s
attorney) , addressed correspondence to my registrar and attached a copy
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of a letter received from the NPA. The letter from the NPA is dated
5 October 2023 and emanates from the offices of Adv De Kock. The letter
reads as follows: -
“Your representations on the aforementioned subject refers.
Kindly be informed that the National Director of Public Prosecutions
(NDPP) has delegated the authority to decide on matters such as this
to the head of the National Prosecution Service (NPS) of the National
Prosecuting Authority, thus this response from my office.
This office has received reports from both the Director of Public
Prosecutions, Gauteng North Local Division (DPP), and the Special
Director of Public Prose cutions of the Sexual Offences and
Community Affairs Unit (SOCA). A copy of the police docket was
made available to this Office, and the aforementioned considered
holistically, taking cognisance of the content of the issues raised in
the representations su bmitted.
I have decided, after a careful evaluation of the evidence, not to
proceed with the charges against your client.”
[64] Pursuant to the email from Prof Kruger and the letter from Adv De Kock
(from the NPA) , a Mr Sydney Tyobeka saw it appropriate to add ress
correspondence to my registrar which reads as follows: -
“Good day
Kindly note that the letter that was forwarded to you on the
13 October 2023 as having been authored by Adv R J de Kock is
possibly forged. I have received a similar letter (attached a s
annexure “LTR”), which I am in the process of having investigated. I
also attach another letter from my previous communication with
Adv De Kock, which has the authentic signature (annexure “C”).”
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[65] Upon receipt of the aforesaid email I requested my registrar to address the
following email to the parties: -
“Pursuant to the letter from the NPA dated 5 October 2023, the
below -mentioned email was received from a non -party. The email
correspondence is forwarded to the parties for the sake of
transparency . Kindly note that the judge will not engage with or
entertain any correspondence that have been addressed a by
non-party or the parties’ legal representatives.”
[66] On 26 October 2023 the respondent personally addressed an email to my
registrar, which reads a s follows: -
“Good day
I wish to confirm that I fully understand and respect the esteem
judge’s concerns regarding the appropriate handling of
correspondence related to the NPA matters. In compliance with your
guidance, I will personally ensure that any fu rther information
required from my father, Mr Sydney T yobeka , concerning these
matters, will be directed to me initially. I will then review and forward
all relevant information to your office.
I apologise sincerely for any inconvenience or misunderstanding the
previous method of correspondence might have caused. I shall also
forward all previous correspondence to you under separate email.”
[67] The applicant’s attorneys were not copied in on this correspond ence.
[68] The further correspondence that w ere forwarded by the applicant were as
follows: -
[68.1] The email from the Ethics and Fraud Hotline dated 25 October 2023,
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acknowledging receipt of the disclosure and that it has been reported
to the NPA. A reference number was provided;
[68.2] An email dated 25 Octob er 2023 from Mr Sydney Tyobeka, again
addressed to my registrar, where he provided proof of the steps that
have been taken regarding the letters that were flagged.
[69] On 27 October 2023 Prof Kruger addressed a letter to Adv De Kock. The
respondent’s attorney was copied in. In essence, the letter brought to
Adv De Kock’s attention the allegation of forgery.
[70] On 6 November 2023 the respondent addressed further correspondence to
my registrar stating as follows: -
“Good day
See below, email correspondence from NPA representations.
1. This is the response from representations after they were
alerted of the ethics and fraud investigation by attorney
P Kruger. I believe it should not be taken at face value.
2. The ethics and fraud division has not confirmed the contents
conveyed by this letter, dated 2 November 2023, neither has
the process that has been initiated by the ethics and fraud
division been completed.”
[71] Attached to the email was a letter addressed by Adv De Kock to
Mr Sydney Tyobeka on 2 November 2023 wherein he stated the following: -
“I hereby acknowledge receipt of the abovementioned
communication, the content of which is noted.
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Your complaint in respect of alleged forgeries of the letters emanating
from this office has been investigated.
In response to your allegations, please be advised as follows:
1. Annexures “CFNPA1”, “CFNPA2”, “CFNPA3” which were
addressed to you was, not signed personally by me, but by
a member of my staff who was authorised to sign on my
behalf ;
2. Annexures “LTR” and “LTA” addressed to you and
Prof Kruger, was signed personally by me. These two
letters convey by decision in respect of the review of the
DPP’s decision to decline to prosecute.
As conveyed to you in my letter dated 5 October 2023, I have
confirmed the decision of the Director of Public Prosecutions,
Gauteng Division, to decline to prosecute.
The matter is regarded as finalised and this office proceeds to
close its file.” (emphasis added)
APPLICATION OF RELEVANT LEGAL PRINCIPLES TO THE FACTS
The best interests standard
[72] The princi ple that in all matters concerning a child the best interests of such
child are paramount is entrenched by the Constitution and repeated in
section 7 of the Children’s Act, 38 of 2005 (“ the Children’s Act ”).
[73] The factors set out in section 7 of the Children’s Act do not exist in a vacuum
as each case is different and the court is enjoined to take into account the
context and facts of each particular matter in order to determine the best
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interests of the child.1
[74] The discretion of the court when considering its decision as to the best
interests of a child is unique, not circumscribed in the narrow or strict sense
of the word and requires no onus in the conventional sense.2
[75] As was stated in Cunningham3: -
“What is required is that the court acquir es on an overall impression
and brings a fair mind to the facts set out by the parties. The
relevant facts, opinions and circumstances must be assessed
in a balanced fashion and the court must render a finding of
mixed facts and opinion, in the final analy sis structured value
judgment about what is considers will be in the best interests
of the minor child .”4(emphasis added)
The further affidavit
[76] Therefore litigation concerning the best interests of a minor child amounts
to a judicial investigation in which strict adherence to technical procedural
requirements and technical procedural objections may undermine efforts to
determine the best interests of the child.5
[77] As a court sitting as upper guardian , it is trite that I have very wide powers
in establishing what is in the best interests of a minor child which includes
1 Cunningham v Pretorius [2008] ZAGPH 258 (21 August 2008).
2 Bezuidenhout v Bezuidenhout 2005 (2) SA 187 (SCA) at paragraph [17].
3 See footnote 1 supra for the citation.
4 Paragraph [9].
5 Jackson v Jackson 2002 (2) SA 303 (SCA) at paragraph [5].
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recourse to any source of information, of whatever nature, which may be
able to assist this court in resolving care, contact and related disputes.6
[78] Accordingly, in the best interests of the minor child concerned, the
respondent’s application for leave to file a further affidavit is granted and
the further affidavit is permitted into evidence . The weight that is to be
attached to the evidence is of co urse a different matter altogether.
[79] The transcription provided by the respondent was not attended to by a
sworn transcriber or translator . The call was at some stage interrupted.
This the respondent conceded. There is no evidence before me that the
participants to the call were in fact who the respondent says they were.
One would at the very least have expected to see a confirmatory affidavit
by the other participant to the call. This was not done.
[80] The admissibility of all hearsay rests on the twin pil lars of trustworthiness
and necessity.7 As was stated by Zeffert et al:8
“The higher the probative value of the evidence, and the more difficult and
costly it would be to procure the actor or declarant as a witness, the greater
the need to receive the evidence. ”
[81] Upon considering the various authorities of what the courts consider an
acceptable explanation to be, it becomes clear that such evidence is only
6 Terblanche v Terblanche 1992 (1) SA 501 (W) at 504C.
7 Wigmore on Evidence at para 1420 ; Hewan v Kourie NO and Another 1993 (3) SA 233 (T)
at p. 237 -238.
8 Zeffert & Paizes; The South African Law of Evidence (Second Edition) at p. 408.
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allowed in ext raordinary circumstances such as death9, physical o r menta l
incapacit y10, or a fear of violent reprisals11.
[82] In the matter of Padongelukkefonds v Van den Berg en ‘n Ander12 the
applicant’s founding affidavit contained hearsay evidence furnished by
someone with whom the applicant’s legal representative had consulted, but
no reasons were given as to why no statement from that person had been
included in the papers. The evidence was not permitted .
[83] Even if the best reasons are fur nished a court must still be satisfied that the
requirements of section 3(1)(c) of the Law of Evidence Amendment Act, 45
of 1988 , have been met.
[84] In this matter there is no explanation why the SAPS social worker did not
depose to an affidavit confirming the existence of the statement and that it
had been removed from the docket. No foundation was laid in the further
affidavit why this evide nce should be allowed and even if it had, very little
weight can be attached to it as the court cannot ignore the fact t hat the
NPA had carefully considered everything that it had received from the DPP
and that if there was proof of the removal of any evidence, the NPA would
have had this issue investigated.
9 S v Mbanjwa and Another 2000 (SACR) 100 (D) at 113e.
10 The Civil Proceedings Evidence Act 25 of 1965; section 34(1)(b).
11 S v Hlongwane 1989 (3) SA 318 (D) at 325I -J.
12 1999 (2) SA 876 (O).
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MATERIAL CHANGE IN CIRCUMSTANCES
[85] What constitutes a material change in circumstances is not defined by the
rules nor by the various reported and unreported authorities that I have
considered. And for good reason . It allows a court faced with such an
application to apply the rule expansively and being mindful of the
Constitutional dispensation of our country as a court is entitled to do and
as was stated by the Constitutional Court in S v S13:
“In addition, there is no reason why rule 43 should not be expansively
interpreted as some courts have already done .”
[86] It is not surprising that the Constitutional Court expressed the obiter view
that Rule 43 may be wanting in certain respects and that there may well be
grounds for a review of rule 43(6) in the future to include not
only changed circumstances but also “exception al circumstances ”.14
[87] In Dodo v Dodo15 the court held that there was no reason why
special circumstances should not justify a deviation from the norm where
the complexities are unusual. I align myself with this decision as it certainly
cannot be argued with any conviction that the facts and issues before me
are not extraordinary.
13 S v S and Another 2019 (6) SA 1 (CC) at par. [56].
14 Par. [53].
15 1990 (2) SA 77 (W) at 79B – D.
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[88] It is has been more than three years since the police investigations
commenced and despite a review process i nitiated by the respondent, the
DPP has decided not to prosecute and has closed its file. Moreover, there is
not one iota of evidence identifying the applicant as the perpetrator or
linking him to the commission of a crime against the minor child. This, in
my view, constitutes a material change in circumstances as contemplated
by the provisions of Rule 43(6).
[89] More than 27 months have passed after the respondent first laid a
complaint, no suspect had been identified.
[90] The minor child allegedly had been subjected to three interventions by
social workers over a period of three years, including empowerment
sessions without any outcome.
[91] It is enough now. This child needs both her parents in her life despite their
differen ces.
CONTACT
[92] Having carefully considered the evidence, I find that there exists no factual
basis upon which a court can continue to impose severely limited contact
between the applicant and the minor child. However, the court is cognisant
of the fact that the minor child has not enjoyed any sleepover contact or
spent any longer than two hours every week (with two more hours every
alternating week) for the past three years. Bearing this in mind, it would be
in the best interests of the minor child that any u nsupervised contact that
may be reintroduced, should be phased in over a reasonable period of time
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to ensure that the minor child adjusts without any difficulties. The order
that I intend to make, will provide for a transition period.
[93] In addition to the phased -in contact, it would serve the minor child’s
interests to commence therapy with a reputable child psychologist, not only
to assist her with the contact adjustment but to provide her with useful
tools to cope with the divorce of her parents and the e ffects that has on
how she perceives her world. Hence, the order will provide for the
appointment of a therapist for the minor child.
THE APPOINTMENT OF AN EXPERT
[94] The expression “expert witness” is ordinarily used to refer to a witness
whose opinions and the reasons on which they are based are admissible in
evidence as his/her knowledge and experience on some or other subject
matter enables such a witness to draw inferences and form views and
circumstances where a court is unable to do so reliably, unless it receives
assistance or guidance from someone with expertise on the relevant subject
matter or in that particular field.16
[95] Various facets of what an expert is have been reiterated in judicial
pronouncements over the years. The prime function of an expert witness is
“… to guide the court to a correct decision on questions falling within his
specialised field. His own decisions should not, however, displace that of
16 George Coleman QC Cross -Examination: A Practical Handbook , Juta & Co Ltd, 1st edition
at 197.
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the tribunal which has to determ ine the issues to be tried…” .17
[96] In Stock18 Diemont JA at 129G said as follows: -
“An expert in the field of psychology or psychiatry who is asked to
testify in a case of this nature, a case in which difficult emotional,
intellectual and psychological problems arise within the family, must
be made to understand that he is there to assist the court. If he is to
be helpful he must be neutral.”
[97] Dr Fasser ’s role as an expert psychologist is to give her opinions, findings
and recommendations regarding the ex ercise by the parties of parental
responsibilities and rights. She is not the trier of fact.
[98] Notwithstanding all the respondent’s protestations that the minor child
should not be subjected to an assessment by either the Family Advocate or
an expert, the r espondent proposes that Prof Pretorius be appointed to
assess the minor child in order to ascertain what really happened to her in
relation to the events of 7 March 2020 and to make recommendations to
the court about the presentation of the minor child’s e vidence. The
assessment that the respondent has in mind, is exactly the kind she alleges
would interfere with police investigations or private prosecutions. I
therefore find the respondent’s objection to Dr Fasser’s appointment and
investigation without ju stification.
[99] The facts remains that the NPA has declined to prosecute and there are no
17 S v Gouws 1967 (4) SA 527 (E) at 528D -F.
18 Stock v Stock 1981 (3) SA 120 (A) at 129E -F.
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criminal proceedings pending as envisaged in section 76(1) of the Criminal
Procedure Act, 51 of 1977 that may have perhaps precluded unsupervised
contact or an investigation by Dr Fasser.
[100] The same goes for an investigation by the office of the Family Advocate . I
reiterate that the purpose of and role performed by the office of the Family
Advocate in disputes involving minor children cannot be overstated.19 In
2003, this Court in Soller20 aptly described the position of the Family
Advocate as follows: -
“..the Family Advocate, as required by legislation, reports to the court
on the facts which are found to exist and makes recommendations
based on professional experi ence. In so doing the Family Advocate
acts as an advisor to the court and perhaps as a mediator between
the family who has been investigated and the court.”21
[101] In Terblanche22 the court described Family Advocates as:
“..particularly well equipped to perform such functions and duties,
having at his or her disposal a whole battery of auxiliary services
from all walks of life, including family counsellors appointed in terms
of the Act and who are usually qualified social workers, clinical
psychologists, psychiat rists, educational authorities, ministers of
religion and any number of other persons who may be cognisant of
the physical and spiritual needs or problems of the children and their
parents or guardians, and who may be able to render assistance to
the Famil y Advocate in weighing up and evaluating all relevant facts
19 ST v BN and Another 2022 JDR 0272 (GJ) par [108].
20 Soller N. O. v G and Another 2003 (5) SA 430 (W).
21 At p 437.
22 Terblanche v Terblanche 1992 (1) SA 501 (W).
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and circumstances pertaining to the welfare and interests of the
children concerned.”23
[102] The facts remains that the parties cannot agree on residency and contact.
An objective investigation and reco mmendation is therefore imperative in
order to assist the court ultimately in finding what arrangements would
serve this child’s best interests. I am accordingly inclined to grant the
applicant the relief that he seeks for the appointment of Dr Fasser and a
referral to the Family Advocate.
COSTS
[103] The granting of costs orders in Rule 43 applications are rare, but not entirely
unheard of. However, courts are usually, and correctly so in my view,
mindful not to mulct parties in costs, especially when both parties were
bona fide in their approach to court. It is also important not to punish a
party in Rule 43 proceedings, which are by their very nature interim in
nature, as in doing so a Court may unintentionally create a false impression
in the mi nds of the parties that the winner and loser in the divorce action
has been determined and may discourage those parties who desperately
need interim relief, to approach the court .
[104] In my view, neither party acted unreasonably. I therefore do not intend to
grant a costs order against any party in the Rule 43(6) application.
[105] As far as the costs occasioned by the condonation and postponement
23 At 503E - I.
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application are concerned, I find that applicant was entitled to enrol the
application , but should have allowed the resp ondent to file her papers,
whereas the respondent was entitled to be heard, but ought to have
complied with the time periods for filing so as not to delay the hearing. In
a way they have only themselves to blame for the incurrence of
unnecessary costs . Awarding a costs order against a party will only add to
the acrimony and will not serve the minor child’s best interests. It is hence
my order that each party will pay their own costs in respect of these
applications.
[106] ORDER
I accordingly grant a n order in the following terms: -
1. Paragraphs 2, 3, 4 and 5 of the order granted by Crutchfield, AJ on 10
September 2020 are substituted in their entirety with this order.
2. Pendente lite the applicant shall be entitled to reasonable rights of contact
to the minor chil d, as follows: -
2.1 For the remainer of January 2024 until 29 February 2024, the applicant
shall exercise supervised contact with the minor child by the already
appointed social work er at either a child -friendly venue or at the
applicant’s place of residen ce, such contact to be exercised as follows:
2.1.1 Every weekend on either a Saturday or a Sunday, alternating
between the hours of 10:00 and 12:30 commencing on the 20
January 2024 ;
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2.1.2 Contact on one weekday each alternate week, between the
hours of 16:00 to 18:00, such day to be arranged between the
parties and the social worker. This weekly contact will
commence from the date of this order .
2.2 The social worker shall in her sole discretio n determine the manner of
collection and return of the minor child.
2.3 The costs occasioned by the supervision shall be shared equally by the
parties.
2.4 From the 1st March 2024 onwards, the applicant shall exercise
unsupervised contact with the minor child as follows:
2.4.1 In the first week of every two -week cycle during school term
time from Friday after school when the applicant shall collect
the minor child from school until Sunday, 17h00 when the
applicant shall return the minor child to the respondent’s home;
2.4.2 In the second week of every two week cycle during term time
on a Wednesday from after school when the applicant shall
collect the minor child from school until Th ursday morning when
the applicant shall return the minor to school;
2.4.3 Daily unsupervised telephonic contact and contact by other
audio -visual means between the hours of 18h00 and 18h30 on
the days that the applicant does not have physical contact with
the mi nor child ;
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2.4.4 On every school day the applicant shall collect the minor child
from her home and take her to school. Should the applicant, for
any reason be unable to do so, he shall give the respondent
reasonable and timeous notice of his inability to do so.
2.4.5 Holiday contact of two separate periods of 5 (five) consecutive
days and 5 (five) consecutive nights during the winter school
holidays in June/July 2024 and annually thereafter and two
periods of 7 (seven) consecutive days and 7 (seven)
consecutive nights during the December/January school
holidays in 202 4/2025 and annually thereafter. The first period
in December 202 4 shall commence on the first Saturday after
school closes and the second period shall commence on 23
December 202 4 at 09h00 and shall termin ate on 30 December
2024 at 09h00;
3. In addition to the contact provided for above, the applicant shall be entitled
to attend all school functions, school events, parent/teachers meetings,
church activities and extracurricular activities in which Penyai parti cipates
in irrespective of whether same fall during his usual contact period;
4. The applicant shall be entitled to receive from the school attended by the
minor child all reports relating to her and all information pertaining to her
extramural activities, school functions and the like and the respondent shall
notify the school accordingly;
5. In the event that either party intends to remove the minor child from her
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usual place of residence for a holiday, such parent shall on request provide
the other parent with full particulars of the place at which the minor child
will be staying, her date of departure, date of return and shall provide
contact details to enable the remai ning parent to have telephonic or contact
by other virtual means to the minor child during this period;
6. The Family Advocate is requested to convene an enquiry and to provide a
report to the parties and the Court as a matter of urgency. The respondent
is directed to cooperate with the enquiry of the Family Advocate; to attend
such enquiry convened by the Family Advocate and to ensure that the minor
child attends such enquiry;
7. Dr Robyn Fasser (“ Dr Fasser ”) is appointed to conduct an investigation into
the best interests of the minor child and to provide the parties and the Court
with her written report setting out her opinions, findings and
recommendations regarding the exercise by the parties of their parental
responsibilities and rights including those o f care and contact of the minor
child;
8. The applicant and the respondent shall pay in equal shares the costs of
Dr Fasser directly to Dr Fasser on demand including any deposit required
by Dr Fasser;
9. Both parties shall cooperate with the process of Dr Fasser to the full extent
required by her including inter alia attending all such interviews, evaluations
and assessments required by Dr Fasser, completing all questionnaires
and/or other forms and providing Dr Fasser with all information and/or
- 35 -
documentation re quired by her and by making the minor child available for
all such interviews, evaluations and assessments required by Dr Fasser in
the timeframes required by her to enable her to conduct and complete her
investigation;
10. Both parties shall sign Dr Fasser’s mandate upon receipt thereof from
Dr Fasser;
11. On completion of her investigation Dr Fasser shall provide her written report
setting out her findings, opinions and recommendations regarding the best
interests of the minor child to the parties and to the Cour t;
12. A therapist shall be jointly appointed by the parties for the minor child to
guide the minor child during th e transition phase of her contact with the
respondent , if necessary, and to equip the minor child with necessary tools
to assist her in coping with the effects of her parents’ divorce. Such
appointment shall be done immediately.
13. The costs of the therapist shall be paid by the parties in equal shares.
14. Should the parties be unable to agree on a therapist, either or the legal
representatives jointly, may approach the Chairperson of the Gauteng
Family Law Forum to nominate a suitable therapist.
15. The costs of this application shall be costs in the divorce action.
16. Each party shall pay his/her own costs occasioned by the condonation and
postponement appl ication.