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[2010] ZAWCHC 3
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Schneider NO and Others v Aspeling and Another (8675/09) [2010] ZAWCHC 3; 2010 (5) SA 203 (WCC) ; [2010] 3 All SA 332 (WCC) (8 January 2010)
SAFLII
Note:
The
complaint against Advocate Theron
has
been considered by the Johannesburg Bar Council (Reference No
.
P19/2010). It has been
resolved that the complaint did not sustain a case of
unprofessional conduct
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
CASE
NO
:
8675/09
DATE
: 8
JANUARY 2010
In
the matter between:
CRAIG
THEO SCHNEIDER N.O.
1
st Applicant
ISOBEL
SHAPIRO N.O.
2
nd
Applicant
ISOBEL
SHAPIRO
3
rd
Applicant
and
ALLISON
ASPELING
1
st Respondent
MASTER
OF THE HIGH COURT 2
nd
Respondent
JUDGMENT
DAVIS.
J
Before
I deliver this judgment I want to state for the record that I
received this morning (although
I
accept
the document was generated at the 4th of January and a covering
letter of the 6th of January) a notice from first respondent
in terms
of Rule 34(2) of the Rules of the High Court that first respondent
unconditionally has accepted to enrol the two children,
S S and D S,
at one of the educational institutions referred to in the
recommendations of Dr Worrell.
This
notice obviously came long after I prepared the judgment. It does
cause me to alter the order that ! was proposing to make.
As I am
working on the assumption that this is an unconditional offer, I want
to make that absolutely clear that the order that
will follow is thus
based on this notice, means that respondent has accepted the children
must proceed to school.
It
does, however, appear to me to be appropriate to set out the reasons
for the order that I was going to give, because there are
very
serious implications in relation to this matter, which require full
examination. In the course of the judgment I will indicate
what order
I would have granted, were it not for this offer which came so late
in the day. Given this introduction, I move to the
substance of the
judgment.
This
matter was initiated by way of an application by the applicants in
terms of the following notice of motion;
"That
Advocate Adre Heese, or such other person as this Honourable Court
may deem appropriate, be appointed as
curator
ad
litem
to
the minor children, S S and S S, and to prepare a report for this
Honourable Court in which recommendations are made regarding;
2.1.
The most appropriate schooling for the children both now and in
respect of their high schooling;
2.2.
Their reasonable maintenance, including the reasonable accommodation
required, and
2.3.
Any other matter affecting their best interests that she may deem
necessary and appropriate in the context of her mandate.
3.
That pending the report of Advocate Heese the first respondent is
ordered not to remove the children from their current school
and not
to commence home schooling."
The
background to this application can be summarised briefly as follows
First respondent is the biological mother of two children,
born out
of wedlock on the 22
nd
of December 1998, while she was in a relationship with the deceased,
the late Jonathan Shapiro. The first applicant has approached
this
Court as executor of the Estate of the Late Jonathan Shapiro and as a
nominated trustee of the Will Trust to be formed pursuant
to the
deceased's last will and testament. He also claims to act in his
personal capacity as an interested party in terms of
the provisions
of both
Children's Act 2005
and the Constitution of the Republic of
South Africa, Act 108 of 1996 (the Constitution) in regard to the two
minor children, twins,
D and S (the children). The children are the
sole beneficiaries in terms of the last will and testament of the
deceased.
The
third applicant, Isobel Shapiro, the mother of the late Jonathan
Shapiro and the paternal grandmother of the children has joined
this
application in a representative capacity as a nominated trustee of
the Will Trust to be formed and in her personal capacity
again in
terms of the
Children's Act and
the Constitution.
First
applicant sets out in his affidavit the basis of this background. He
avers that the deceased, whom he knew personally as a
friend and a
client for more than twenty years, placed considerable store on
education, holding a Master's Degree from the University
of Cape Town
as a qualified town planner. At the age of 46, whilst holidaying in
Madagascar on 6 October 2008, he died suddenly
and unexpectedly.
According to first applicant at the time of the birth of the
children, the deceased and respondent had lived
together, and
continued to live together for a number of months after the birth of
the children, whereafter respondent moved out
with the children,
first to Wynberg, and subsequently some two years later to Hermanus,
where she lived for approximately seven
years. Accordingly, it
appears that the children spent most of their lives in the Hermanus
area, but respondent moved to Durbanviile
in January 2008, two days
before the start of the term.
According
to first applicant, respondent moved to this location, owing to a
lack of employment prospects in Hermanus and, further,
respondent's
disagreement with the school which the children had attended, being
the Montessori school in Durbanviile. According
to first applicant,
first respondent announced that she then wished to "home school"
the children, relocated back to
Hermanus, whereupon the children were
removed from the Montessori School.
First
applicant avers that both he and third respondent were extremely
concerned about this decision to home school the children
and uproot
them from their current schooling and environment. First applicant
avers that shortly before the deceased's death, in
the middle of
2008. he insisted on a full evaluation by educational psychologists
of both children as it appeared that they were
encountering certain
learning difficulties.
A
report was prepared by an educational psychologist, Lianna Morrison
on 12 December 2008, in which mention was made of certain
problems of
a scholastic nature, being experienced by at least one of the
children. The psychologist's report indicated that, while
home
schooling might have been "an option" for S, it was not
recommended for D. The report noted that D was suited to
a small
teacher/pupil ratio environment and that he needed not to be moved to
an alternative school placement, that he was progressing
pleasingly
scholastically and "he seemed to be content in his school and
home environment".
When
the application was initially launched, first applicant, in his
affidavit, noted that there was a discrepancy between what
the
respondent claimed and what was reasonably required for the
children's needs, it was thus important that the matter be resolved
by way of a appointment of a
curator
ad litem.
He
then proceeds:
"It
was necessary for me to work prudently both with the executor and
trustee. I believe that as trustee and executor it is
essential to
establish with the inception of fair and reasonable basis upon which
to move forward in the best interests of the
children, without
attack/criticism or fear of recriminations. I believe that an
independent investigation by a curator who may
choose, if deemed
necessary, to obtain expert opinion from an appropriately qualified
educational
psychologist
and/or clinical psychologist as to what is in the best interest of
the children would be in the best interests of the
administration of
the estate and the children."
First
respondent vigorously opposed this application, both on the grounds
of the
locus
standi
of
applicants, and on the basis that it constituted an unfair
interference with her parental responsibilities which she had
reasonably
undertaken over the lifetime of the children. In her
answering affidavit she states:
"If
the applicant knew anything about home schooling, taking the
children's specific needs into consideration, enquired about
it, and
shown reasonable interest they would not have been concerned, There
is nothing unstable about home schooling, and from
the children's
point of view they will be moving back into a stable environment in
Hermanus.
I
wish to refer the Court to the affidavit of Van Oostrum where he
deals more specifically with these aspects."
In
this reporting affidavit !Vlr Leendert Van Oostrum, who is the
executive officer, of the Pestalozzi Trust described by him as
a
trust set up for the legal defence fund for home education, purports,
in his affidavit, to be an expert in home education he
then provides
a detailed report of home education and its many merits. He then
states as follows:
"None
of the applicant's stated concerns about home education are supported
by any empirical observations recorded in the literature
by the
specific home education program provided to his children or by the
educational environment in which they are situated. Conversely
it
cannot be shown and not (sic) responsible teacher would claim that
any of the assumed benefits to be derived from attendance
at the
"best schools" proposed to these children will be reaped by
both or either of these children. It is common knowledge
that there
are children in "the best" of schools for whom that school
is not the best school
Mr
Van Oostrum then makes certain recommendations;
"I
find no reason to advise first respondent to change her choice of
home education for these children or, at this stage, to
change any
aspect of the program offered to them. In my opinion, respondent can
best serve the educational interest of her children
by continuing the
home education in the present manner, adjusting for the development
needs of the children as necessary and obtaining
specialist services
where possible, necessary and affordable. Assessment of the
children's progress by an independent educational
psychologist after
one year of home education will assist her in deciding a further
course of action. Such assessment should be
repeated at least once
every three years thereafter ,.. If on the contrary, involvement of
their late father's relatives in the
children's education remains
negative and destructive as the present evidence suggests,
consideration should be given to asking
a Court to limit their access
to the children to an absolute minimum or to supervised access. Such
restriction should be determined
and implemented and monitored with
the assistance of a forensic psychologist. It should be maintained
until the children are less
vulnerable to negative labelling of the
kind of education their mother has chosen for them and to denigration
of or refusal to
recognise their short and long term achievements and
progress. This could take several years."
On
3.1 August 2009 the parties agreed to deal with the disputes which I
have outlined in terms of the following order;
"Dr
Anita Worrell who is hereby jointly appointed to assist in an
investigation and the preparation of report(s) containing
her
recommendations in regard to what is educationally in the best
interests of the two minor children, S S and D S, both now and
in
respect of their future secondary schooling. The parties shall
cooperate fully with Dr Worrell in carrying out her mandate and
the
children are to be made available at her request for such sessions as
she may deem necessary to assist her in her conduct of
the assessment
and report ... The parties agree to be guided by the recommendations
of Dr Worrell but in the event of either the
applicants or the
respondents refusing and/or failing to accept the recommendations of
Dr Warrell the matter may be determined
by this Honourable Court on
the postponed date."
The
order then provided for certain matters with regards, for example, to
maintenance
pendente
lite.
Dr
Worrell then produced her report, which proved to be unacceptable to
first respondent. Pursuant thereto, first respondent commissioned
a
further report from Dr Shirley Kockott. The evidence of both experts
was then subjected to examination and cross-examination
by way of an
oral hearing before this Court.
I
turn
therefore to deal with this evidence.
The
Evidence
Dr
Worrell interviewed both children and their mother. It
appeared that she spent at least five hours with each child. She
also
involved other professionals to assist her with certain of the
testing which was required and this was performed separately
by
different members of the "Pro ED" team of professionals
specializing in the field of remedial education. In addition.
Dr
Worrell visited the Hermanus Montessori School, which had previously
been attended by the children, as I have noted, and interviewed
the
former principal. She also had a discussion with the Montessori
School in Durbanviile, which the children had attended between
January 2007 and April 2009, whereafter they had been removed by
first respondent. In addition she visited the Overstrand Learning
Academy in Hermanus to assess its suitability as a possible school
for the children.
Pursuant
to her investigations, Dr Worrel! concluded that both S and D, but in
particular S, had shown significant gaps in the essential
learning
areas which in the old parlance are referred to as the three R's,
reading, writing and mathematics.
In
her view, in S's case the gap was as much as two years in respect of
these areas. While D, in her view, did not exhibit the same
educational deficit as S, he had also shown inconsistent patterns of
knowledge particularly insofar as mathematics was concerned
Dr
WorrelI highlighted a concern regarding the children's non attendance
at school since April 2009 and the effect that she considered
this
had on them losing competence, to some extent, compared to that which
had been exhibited when tested by Morrison. In addition
she
questioned why first respondent allowed the children effectively to
remain under-stimulated throughout this period and further
why first
respondent, in her view, had acted precipitously in withdrawing the
children from the schooling environment.
It
was Dr Worrell's view that this conduct was particularly disturbing
because both children, on the tests that she had administered,
required structure and discipline in order to make up the gap which
had developed at this particular point. She questioned whether
any of
the two children was capable at present to proceed to Grade 6, which
is the grade they should have been at the commencement
of the 2010
schooling year. She advanced the view that S most certainly should
not enter grade 6, and that D might be able to be
admitted to this
standard but this could not be confidently predicted in the light of
the testing that she had undertaken.
She
gave evidence that she had applied the Welchsler
Individual
Scale 4 (UK Edition) tests in support of her assessment of both
children. Her conclusion was that they were "bright
boys"
but that their educational problems were manifest. She did not regard
the test results obtained by her as being indicative
of the children
being "exceptionally bright or gifted", a view which had
been taken by defendant's expert, Dr Kockott.
She did not consider
that they had such extraordinary needs that had to be stimulated
outside of the normal parameters of schooling.
Dr Worrell objected to
the notion, in any event, that highly intelligent children could not
be more successfully happily catered
for in a schooling system, or,
indeed, in a special school such as that established by Dr Kockott
herself in Johannesburg, Radford
House, which had been created to
cater for children whom Dr Kockott had referred to as gifted or
exceptional.
According
to Dr Worrell, given the remedial educational needs, particular of S,
the children's best interests would be served by
attending the type
of school which she had identified in her report, together with the
children being subjected to the necessary
remedial therapy from
outside therapists.
in
summary, she rejected the option of home schooling as being in the
best interests of these particular children, given the test
that she
administered, their educational profile, and results, which she had
established pursuant with the tests which I have outlined.
Unquestionably, children would require a skilled educationist to
supervise and coordinate a program which would be required for
them
to catch up with other children of their age group. In her view, the
fact that a person, such as first respondent, could simply
coordinate
a schedule of remedial teachers could not, in this case, be
considered to be in the best interests of these children,
given their
particular needs. Dr Worrell emphasized to the Court that a home
schooling option would constitute too great a risk
for these
children. The chances of them successfully reintegrating into a main
stream education, in the event that home schooling
failed after six
months, would even be more difficult.
She
also expressed concern regarding first respondent's ability to put in
place the type of structure and routine that is required
to 'home
school' children, given the first respondent's past failure to
display any such ability. She also questioned the mother's
general
ability to cope with the task of home schooling two children with the
complex educational needs exhibited by the two boys.
In
short she concluded thus;
"S
cannot be home schooled. He requires very considerable
routine. Structure and organisation, something that has
not
been shown in home schooling” so far. Furthermore the twins
are at very different levels and will both
be frustrated,
S because he cannot catch up with D and D because he will be held
back by S as the latter requires
fairly consideration
reputation."
So
much for a summary of Dr Worrell's evidence. First respondent placed
two reports before the Court, both designed to refute
these
recommendations. Dr Kockott, of the Centre of Integrated Learning
Therapy, produced a report, as did Mr J E M Coetzee,
a psychologist,
although the latter was never called as a witness. It appears that
Ms Coetzee interviewed the first respondent,
and found her to be in
psychological distress and recommended psychological counselling,
both at present and for the foreseeable
future. She also made a
recommendation that first respondent be allowed to home school, only
if she underwent a fairly rigorous
course of psychotherapy.
The
key witness on behalf of first respondent was Dr Kockott.
Significantly, when asked about Ms Coetzee's report
she
conceded that she had never been shown these recommendations, which
itself was somewhat curious.
The
thrust of Dr Kockott's evidence can be summarised thus: the children
were particularly gifted, by which I took it to mean
that they were
extraordinarily intelligent, by virtue of the scoring which they had
achieved in accordance with a further set
of tests undertaken by Dr
Kockott which were based on "a South African individual scale".
I should add that Dr Worrell
had certain problems with this
particular test, but
I
do
not need to resolve these particular epistemological difficulties.
The
test was not however administered by Dr Kockott, but rather by Ms
Morrison.
I
should
add that these tests were not made available to the Court, nor to Dr
Worrell (according to whom they had been requested).
Based on these
findings, Dr Kockott concluded that they were gifted, and, as gifted
children, they required more than was offered
at any regular school
where their exceptional intelligence would not receive the ordinary
stimulation that they required. On
this basis, she considered home
schooling to be a viable option.
Significantly,
when pressed by the Court to indicate whether, if the children lived
in the Gauteng area, she would prefer them
to attend her
school rather than home schooling, she desperately tried
to avoid answering the question. Finally,
after persistence from the
Court, she conceded, with extraordinary reluctance, that she would
have recommended attendance at
her school.
Dr
Kockott accepted that the children were in need of urgent remedial
intervention, because she accepted that they had certain
significant
scholastic gaps: "S is experiencing stress in the academic
environment and is not coping with scholastic demands,
in particular
he is said to struggle with spelling, writing, working memory and
concentration."
She
accepted that D had problems with regard to his sensory motor
systems, his auditory memory and his eye sight. In her view,
this
set of descriptions indicated that the two children were "doubly
exceptional", by which I understood her to mean
that they had
two reasons to attend her school or home schooling. Her preferred
program was that of integrated learning therapy.
According to her,
this program could be run, if first respondent so wished, in
conjunction with other remedial programs although
a six week initial
period would be preferable. Further remedial therapy would not have
to wait indefinitely as it could work
in tandem with her therapy.
That therapy, in her view, would, together with other remedial
therapy be able to resolve many of
the problems which the tests had
identified
I
regrettably need to deal in more detail with concerns regarding the
evidence of Dr Kockott.
The
first turns on her expertise, the second on her mandate. From her
CV, she indicates that she had been an associate professor
at the
University of South Africa until December 2006. Nonetheless, she
described herself as Professor Kockott. Usually, and
I consider the
Court can take cognisance of this, associate professors are not full
professors and cannot retain the title of
professor upon resignation
from their office. Indeed the only time that a retired professor can
retain the title of professor
is when he or she has attained the
status of emeritus professor.
This
point
may
see
to be trivial, but people who claim qualifications or titles which
they do not possess, need to be treated with some measure
of
circumspection. Furthermore, she conceded that educational
psychologists, which was the area in which she had been trained,
do
not train formally in neurology or neurological development. When
asked by the Court as to her qualifications in this regard,
she
claimed to have done a number of courses over a number of months. It
does raise serious questions about her expertise
in
this complex field, but I do not need, for the purposes of this
judgment, to do more than raise these questions.
The
second concern regarding Dr Kockott's evidence is of far greater
import. In this connection, it is necessary to deal with
the role of
an expert. In
Zeffertt
and Paizes
,
The
South African Law of Evidence
(Second Edition), at 330 the learned authors, citing an English
judgment of
National
Justice Compania Navierasa v Prudential Assurance Co Limited
1993(2)
Lloyd's Reports 68 at 81, set out the duties of an expert witness
thus:
"1.
Expert evidence presented to the Court should be, and should be
seen, to be the independent prod uct of the expert uninfluenced
as
to form or content by the exigencies of litigation;
2.
An expert witness should provide independent assistance to the Court
by way of objective, unbiased opinion in relation to matters
within
his expertise... An expert witness should never assume the role of
an advocate;
3.
An expert witness should state the facts or assumptions upon which
his opinion is based. He should not omit to consider material
facts
which could detract from his concluded opinion;
4.
An expert witness should make it clear when a particular question or
issue falls outside his expertise;
5.
If an expert opinion is not properly researched because he considers
that insufficient data is available, then this must be
stated with
an indication that the opinion is no more than a provisional one. In
cases where an expert witness who has prepared
a report could not
assert that the report contained the truth, the whole truth and
nothing but the truth without some qualification,
that qualification
should be stated in the report."
In
short, an expert comes to Court to give the Court the benefit of his
or her expertise. Agreed, an expert is called by a particular
party,
presumably because the conclusion of the expert, using his or her
expertise, is in favour of the line of argument of the
particular
party. But that does not absolve the expert from providing the Court
with as objective and unbiased opinion, based
on his or her
expertise, as is possible. An expert is not a hired gun who
dispenses his or her expertise for the purposes of
a particular
case. An expert does not assume the role of an advocate, nor give
evidence which goes beyond the logic which is
dictated by the
scientific, knowledge which that expert claims to possesses.
Sadiy
:
every single one of these strictures was breached by the evidence of
Dr Kockott. I regrettably have to deal with this issue in
some
detail. Under cross-examination, Dr Kockott was asked as to whether
she was given any instructions as to the evidence which
she would
provide to the Court. Notwithstanding strenuous objection, she
reluctantly stated that she had been given certain instructions,
initially described as oral, but then it appeared that an e-mail had
been generated by Mr Van Oostrum dated the 30th of November
2009. It
was headed "Core issues in Shapiro v Aspelling". It
appears to have been sent to Dr Kockott as well as to
first
respondent's instructing attorney on which more presently.
Mr
Van Oostrum writes as follows;
I
have taken the liberty to summarise below the core issues that we
need to be able to answer in response to the views of Dr Anita
Worrell. I am sending this to Jan (first respondent's instructing
attorney) as well so that he can tell us if he disagrees with
me. At
issue in this case is whether the Court is justified in infringing
the children's constitutional right to parental care
by overruling
the decision by the mother to educate them at home."
Thereafter
Mr Van Oostrum provides something of a summary of the law. He then
continues:
"Our
enquiry from Professor Kockott and Ms Coetzee is whether they agree
on the evidence that the home education will be
contrary to the best
interests of the Shapiro children ... The reports from Professor
Kockott and Mrs Coetzee should therefore
in addition to a general
conclusion whether home education will be contrary to the best
interests of the children and to the
extent that it is possible for
them to answer that on information available to them and that they
can obtain answer the following
specific questions."
A
set of questions are then provided and the e-mail continues;
''It
seems that Worrel! relates this in some way to the fact that "S
now irritates (D) and the boys fight. They see too much
of each
other. My response wow! And how are they to learn and live and work
with co-workers one day? Will they never serve in
the army or on
ships or yachts or might they not given their heritage go and live
on a kibbutz where they might have to live
cheek by jowl with others
for extended periods of time."
He
then continues:
"What
is the construction of independence that Dr Worrell refers
to? This is an
opportunity
for us to infuse our own constructions into the
debate
."
(My emphasis).
The
e-mail concludes:
"I
think that the above covers the most important
elements at issue at the present time. No doubt others will
arise
along the way, and might be flung at us in the witness box without
warning, but these are the ones we must answer at this
time.
Jan
should let us know if he disagrees on the above
."
(My emphasis)
It
is clear from his e-mail that Dr Kockott was hired as a person
specifically to undermine Dr Worrell's evidence, that is before
she
considered the facts. Although I have to accept that she did try to
place an impartial gloss on much of the evidence, her
reluctance to
concede, when faced with a clear obstacle, her inability to
acknowledge the possibility of another expert's view
and the general
contradictory nature of her evidence, particularly with regard to
whether home education was suitable, preferable,
or simply in
equipoise with school education has to be evaluated in terms of the
mandate that she was given.
It
also appears that she recommended home schooling without ever
discussing with first respondent the choice of the home schooling
method favoured and identified by the latter. A particularly
interesting illustration of the difficulties that she encountered
took place when it was put to her that first respondent had
chosen the "Son light program". It appeared that this
particular program, developed by a self-pro claimed "Evangelical
Christian Prosthyletising'' group, adopted a particular
religious
line, ironically a line with which even Mr Van Oostrum presumably
would disagree, given his earlier reference to the
children's Jewish
heritage.
What
was so significant about Dr Kockott's performance was the fact that
it was obvious, both from her demeanour and her reluctance
to
answer, that she knew that this was an unsuitable program. After the
most intricate ofevidential egg dances, she finally,
reluctantly,
conceded that it may well not have been suitable. In my view, her
evidence raises significant problems as to the
independence,
credibility and her expertise.
That
takes care of the evidence. I turn to deal firstly with first
respondent's arguments. Mr
Theron
,
who appeared on behalf of first respondent, submitted that generally
speaking on the subject of the welfare of children the
custodian
parent, in this case first respondent, has the right to have the
children with her, to control their lives, to decide
questions of
education, training, and religious upbringing. In this connection he
cited the case of
Van
Qudenhove v Groover
1981(4) SA 857 (A) at 867. In his view, the opinion and desires
of the custodian parent could not be ignored by the Court.
Mr
Theron
submitted that the applicant's founding affidavits did not contain
any primary facts which would justify the Court's exercise
of its
jurisdiction as upper guardian of the children and which therefore
would justify it overriding the decision taken by first
respondent
as the mother. He submitted that Dr Worrell did not have regard to
any of the qualitative or quantitative studies
comparing mainstream
education to home education, and had to resort to anecdotal evidence
to support her view that home schooling
was unsuitable for the minor
children. He submitted further that, when Dr Worrell was questioned
on the factors that would militate
against home schooling, she
primarily contended that home schooling could not provide the
necessary structure and the necessary
specialist teachers and other
professionals might not be available and that she believed that a
normal mother could not teach
without formal qualifications.
In
his view, Dr Kockott's evidence indicated clearly to the contrary,
that the two children were potentially suitable for home
education.
Mr Theron submitted further that the Court was asked to exercise its
jurisdiction as the upper guardian of minors
and therefore to invade
the private sphere of first respondent in so drastic a manner both
by the appointment of a
curator
ad litem
and
by taking away the decision which first respondent had made with
considerable care.
These
submissions necessitate some inquiry into the applicable legai
principles. Section 28(2) of the Constitution provides that
the
child's best interest is of paramount importance in every matter
concerning the child. The concept of the 'interest of the
children',
being of paramount consideration is reflected in article 3(1) of the
United Nations Convention on the Rights of Children.
The Convention
was adopted by the General Assembly of the United Nations on the 20
November 1 989 and South Africa became a signatory
on 29 January 1
993, with ratification taking place on 16 June 1995.
I
should note that even before the Constitution came into force and
before ratification of the Convention in
Terblanche
v Terblanche
1992(1) SA 502(W) at 504 C-D the Court said;
"[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 strictures or by the limitations the evidence presented
or contentions advanced by the respective parties.
It may in fact
have recourse to any sou re e of information of
whatever nature, which may be abie to assist
it in resolving custody
in related disputes."
Even
earlier, in
Seqall
v Seqali
1959(3) SA 687(C)
Tebbutt.
AJ
(as
he then was) said that, in previous cases it was considered that the
Court would not interfere with parental decisions -
"unless
the foundation had been first laid by proof to the satisfaction of
the Court that there had been an abuse by the
custodian parent of
his powers; either that or no discretion had been exercised at all.
that is to say that the actual decision
had been capricious or
vitiated by unreason in the sense that no reasonable person could
have arrived at, or that the decision
was inspired by motive which
was quite foreign to a due and proper regard to the interests of the
children."
In
B
v S
1 995(3) SA 571(A) at 581A (a case which did take place after the
creation of our constitutional dispensation)
Howie.
JA
(as he then was) said, citing Re KD, an House of Lords decision:
"Parenthood
in most civilised societies is generally conceived as conferring on
parents' exclusive privilege of ordering
within the family the
upbringing of children of tender age with all that that entails that
it is a privilege which, if interfered
with without authority would
be protected by the courts but it is privilege circumscribed by many
limitations imposed both by
the general law, and where the
circumstances demand by the Courts or the authorities on whom the
legislature has imposed a duty
of supervising the welfare of the
children and young persons. When the jurisdiction of the Court is
invoked for the protection
of the child, the parental privileges do
not terminate. They do however become immediately subservient to the
paramount consideration
which the Court has always in mind, that is
to say the welfare of the child."
Further,
Howie JA says:
"Whatever
the position of the parent may be as a matter of law, and it matters
not whether he or she is described as having
"a right" in
law. or a "'a claim" by the law of nature or as a matter
of common sense, it is perfectly clear
that "any right"
vested in him or her must yield to the dictates of the welfare of
the child."
The
Constitution and international instruments now provide concrete
amplification of these
dicta.
All
of these
dicta
can
now be viewed through the prism of the most recent articulation of
what constitutes the best interests of the child by the
Constitutional Court in
S
v M (Centre for Child Law (as
amicus
curiae)
2008(3)
SA 232(CC) where the Court said:
"Section
28 must be seen as responding in an expansive way to our
international obligations as a State party to the United
Nations
Convention on the Rights of the Child ... Section 28 has its origins
in the international instruments of the United Nations
...The four
great principles of the CRC which will become international currency
and as such guide all policy in South Africa
in relation to children
are said to be survival, development, protection and participation.
What unites these principles and
lies at the heart of S28 I believe
is the right of a child to be a child and enjoy special care. Every
child has his or her own
dignity. If a child is to be
constitutionally imagined as an individual with a distinctive
personality and not merely as a miniature
adult waiting to reach
full size, he or she cannot be treated as a mere extension of his or
her parents, umbilically destined
to sink or swim with them."
(at paras 16-17)
If
a child-centred approach is adopted to this particular set of facts,
as must be the case in terms of the law as I have set
it out. the
following emerges:
1)
What method of education can be regarded as best suited to the
particular needs of these children? In this case the Court is
not
concerned as unfortunately appeared to have been the case with a
test case with regard to home schooling . This is not a
test case
about home schooling, and thus this judgment is not to be construed
as an evaluation of the merits or demerits of home
schooling. It is
a case which deals only with one question, the determination of the
best interests of two vulnerable, young
children, and what in fact
will be in the best interest of them not just now, but which will
impact upon them for the rest of
their lives. The Court is not
concerned in this case, with the 'great' questions of home
schooling; these will have to await
for some other occasion which
mercifully is not this case.
2)
The Court is required to evaluate the evidence of Dr Worrell versus
that of Dr Kockott. As
I
have
already said, the latter was a questionable expert, there were
doubts about her independence, there were doubts about the
quality
of her evidence, her reluctance to answer candidly.
3)Even
if Dr Kockott's evidence is placed in the best possible light, it
amounts to no more than a hesitant acceptance that home
education
may be no worse than education in a special school, which is
effectively the thrust of Dr Worrell's unequivocal evidence.
4)
In this case there may be other interests, interests of the first
respondent to look after her children, but the paramount
principle
dictates that the child's interest is of cardinal concern, not the
child as an instrument to decide as to whether one
form of education
in some grand scheme is better than another.
5)
The evidence suggests that first respondent is a concerned parent,
who has strong views about the best interests of these children.
This view must be taken seriously. Expressed differently, there
is no evidence that first respondent is not deeply concerned
about
her children, not concerned about the best interests of her children
and does not have strong convictions about home education.
Three
further facts emerge which are of critical importance:
i. First
respondent removed the children from school in which they appeared
to making progress.
I
find
it significant that no reports or copies of reports were procured by
first
respondent to assist this Court with regard to this line of
enquiry. It was suggested by applicants that the children were
progressing
well at the Montessori School. It was suggested that a
request had been made for reports to be provided. I was informed
that
the reports had been lost but no suggestion
was ever
provided to this Court as to why copies could not have been
procured, which would have indicated, in an unequivocal
fashion,
the extent of the development of the children at the school prior to
them being removed.
ii.
Little education took place, once the children were removed from
school in April 2009. There was some suggestion on the basis
of the
evidence of Mr Van Oostrum that a gap between the formal school and
home schooling should take piace, but it was never
explained to this
Court as to the reason for such a lengthy period,
iii.
Of particular importance, is that the decisions of first respondent
in this connection are contrary to the law. I need therefore
briefly
to deal with this.
In
terms of
South African Schools Act 84 of 1996
, and particularly
Section 3(1)
, every parent must cause every learner for whom he or
she is responsible to attend a school, from the first school day of
the
year in which such learner reaches the age of 7 years, until the
last school day of the year in which such learner reaches the
age of
15, or the 9th grade, whichever occurs first.
Section 3(5)
provides
that if a learner who is subject to compulsory attendance in terms
of (1) is not enrolled at or fails to attend a school,
the head of
department may (a) investigate the circumstances of the learners
absence from school, (b) take appropriate measures
to remedy the
situation, (c) failing such a remedy issue written notice to the
parent of the learner requiring compliance with
Section 3(6)
provides, subject to the Act and any other applicable law, (a) any
parent who without just cause and after written notice from
the head
of the department fails to comply with (1). is guilty of an offence
and liable of conviction to fine cr imprisonment
for a period not
exceeding six months, or (b) any other person who, without just
cause, prevents a learner who is subject to
compulsory attendance
from attending a school, is guilty of an offence and liable on
conviction to a fine or to imprisonment
for a period not exceeding
six months.
Section
51 of the Act is also significant. It provides that for the
registration of learner for education at home:
1)
A parent may apply to the head of department for the registration of
a learner to receive education at the learner's home.
2)
The head of department must register a learner as contemplated in
(1) if he or she is satisfied that (a) the registration is
in the
interests of the learner, (b) the education I ike L Y to be received
by the learner at home, (i) will meet the minimum
requirements of
the curriculum at public schools; and (ii) will be of the standard
not inferior to the standard of education
provided at public
schools: and (c) the parent will comply with any other reasonable
conditions set by the head of department.
3)
The head of department may, subject to (4), withdraw the
registration referred to in (1).
4)
The head of department may not withdraw the registration until he or
she (a) has informed the parent of his or her intention
to so act
and the reason therefore, (b) has granted the parent an opportunity
to make representations to him or her in relation
of the action and
(c) has duly considered any such representation received.
5)
A parent may appeal to the Member of the Executive Council against
the withdrawal of a registration or the refusal to register
a
learner in terms of that.
There
is no evidence that first respondent has complied with section 51 of
the Act, nor that she is not in breach of section 3
of the Act. in
short, this case, ironically, was run on the basis of requesting
this Court to sanction a continued breach of
the relevant law. Had
it not been for the Rule 34(2) Notice, in which the first respondent
has now unconditionally accepted that
the children must be enrolled
at school,
I
would
have considered, and was going to order, that it was not necessary
to determine whether home schooling was in the best interests
of the
children, nor ultimately to decide whether the first respondent's
discretion should trump the evidence of Dr Worrell,
because I would
have found that first respondent must comply with the applicable
law.
The
order that I proposed wouid have been interlocutory of nature, that
is, pending relevant authorisation by the education department,
the
children had to be registered in school. Were authorisation to be
granted then either party was free to approach this Court
on papers
duly supplemented. That however is no longer necessary because
I
have
worked on the assumption that first respondent has unconditionally
accepted the children must now go to school.
I
make
these observations, because there must be no retreat from this
unconditional offer. If so, first respondent would be in breach
of
the law, and applicants would be free to approach this Court
accordingly.
Before
I deal however with the order that I must make in the light of these
findings,
I
have
to deal with some unfortunate conduct on this whole matter. I do
this, and I wish to place on record, I do so for the first
time in
my judicial career.
This
is not an issue which
I
take
lightly, and it has taken me a long time, after anxious
consideration, to make the following comments, and decisions.
The
disturbing conduct to which I make reference can be summarised thus:
I was provided with a very lengthy affidavit from Mr
Van Oostrum.
He correctly describes himself as the Chief Executive Officer of the
Pestalozzi Trust which deals with the defence
for home education,
but outside of that there was no indication of his involvement in
this case. The entire affidavit purported
to be that of an expert,
providing this Court with independent evidence with regard to the
merits of home education. Nowhere
in the affidavit, nor anywhere
else, was I ever informed that the Pestalozzi Trust had funded this
litigation.
Secondly
Mr Van Oostrunrs e-mail reveals that Dr Kockott was brought in as an
expert, apparently with the connivance of first
respondent's
attorney, as "a hired gun". Again, none of these facts
were ever brought to the attention of this Court
until
cross-examination took place.
This
is an agonisingly difficult case. Were this to have been a case
dealing with a commercial matter, I am not certain that I
would have
been as distressed by the relevant conduct of the first respondent's
representatives. But this was a case dealing
with the best interests
of two children.
I
said
to Mr
Theron
early
on in his cross-examination that
I
did
not wish this case to be conducted as a criminal trial, but as a
quasi inquisitorial process so that the Court could truly
come to
the best decision in the interests of the children. See
Terblanche
's
case, supra.
I
find these cases the most difficult for a judge. These are not my
children. That is a difficult enough task. These are other
people's
children for which I, as a Judge of this Court, am now to assume
responsibility. That is a terribly weighty decision
to make in a
case such as the present dispute. Respondent's legal team, as
officers of this Court, owe a fiduciary responsibility
to the Court
as they pursue the best interests of their client.
This
case appeared to be run as a test case for home schooling, not as a
case about what was in the best interests of the children.
I asked
first respondent's attorney to explain his conduct. He deposed to an
affidavit. In it he informed me of the following:
"Shortly
after the application was served I received a telephone call from Mr
Van Oostrum as the Chairman of the Pestalozzi
Trust Legal Defence
Fund for its members. Mr Vanoostrum advised me that the first
respondent is a member of their association
and requires legal
assistance for which the Trust would pay. I thereupon required Mr
Van Oostrum to arrange that the
papers be forwarded to
me either by courier or by way of electronic means to enable me to
assess the position of the first
respondent,
viz
a viz
the
application with regards to her right as sole guardian of the
children, and the rights of the children seen in the light of
the
Children's Act. Schools
Act and the Constitution. At no stage did
I
consult
with Mr Van Oostrum with regard to the merits of the matters, and
only requested him to supply me with an affidavit setting
out his
involvement as well as his opinion as an expert with regard to home
schooling. I only advised him- that I was satisfied
that the
respondent did have a plausible defence to the application. On
receipt of the application I perused it and on Saturday,
the 9th day
of May 2009
I
had
an extensive telephonic consultation with applicant, took
instructions to get background with regard to the application and
discussed the merits of the application with her, and was satisfied
on the papers that, in my opinion, not a proper and sufficient
case
is made out for the applicants to be successful with the
application.
I
thereupon
drafted an answering affidavit for the first respondent and after
I
finalised
the draft I again had a long telephonic discussion of about an hour
with the first respondent .... At no stage during
my consultations
with the first respondent did I take instructions from the said Van
Oostrum or any other third party with regard
to the matter. My only
contact in this regard with Van Oostrum was my advice to him that
I
was
of the opinion that the first respondent's rights were in fact
infringed on by the application, and
I
was
satisfied to act on her behalf ... At all times Mr Van Oostrum knew
that by taking the instruction, my objective would be
to look after
the interests of the members and not to endeavour to enhance the
objects and principles of home schooling. Being
in practice for some
time there are ethical standards to which I adhere to and will not
be influenced by any 3rd party... In
my initial instruction to
Advocates Botha and Theron it was directly stated by myself that
although the Pestalozzi Trust would
be paying our fees, that we are
acting on behalf of the first respondent, and the
first respondent is our client
and we abide to her instructions. It
can also be explicitly stated that both counsel stated that under no
circumstances they
would be prepared to act in advancement of the
principle of home education and would only act in the interests of
the first respondent
and the children.... After receipt of Dr
Worrell's report I contacted and discussed the report with the first
respondent and
suggest that we obtain the services of Mrs
J
E
Coetzee
to investigate and render us a report and as there are cost
implications involved
I
contacted
Mr Van Oostrum and advised him that I would like to make use of the
services of Mrs Coetzee. He advised me that he knows
of a certain Dr
Kockott whom he would contact .... Prior to receiving Dr Kockott's
report
I
did
not have any contact with her, and only discussed the report in
short with her telephonically prior to meeting with her in
Cape Town
with advocate Theron. Judge Davis also mentioned correspondence
being referred to in the evidence which was an e-mail
forwarded by
Mr Van Oostrum to Dr Kockott.
I
attended
a meeting in Judge Davis' chambers on 30 November 2009, and only
recall having seen the letter on the 2
nd
December 2009 ... Taking into consideration that i have a fairly
busy practice and preparing for a Supreme Court trial .... I
did not
have time to contact or to communicate with Dr Kockott and/or Mr
Vanoostrum with regard to his e-mail."
Unfortunately,
this affidavit does not explain the nature of Mr Van Oostrum's
suggestions that "Jan" will also put his
input, no denial
that there appears to have been a strategy between the two, does not
explain the repeated references to Mr Schnettler
in the e-mail of Mr
Van Oostrum nor does it explain how an affidavit was deposed to by
Mr Van Oostrum, who is effectively the
funder of first respondent,
and who was then represented as being an independent expert in this
case.
Reluctantly
I
must
come to the conclusion that there are very serious questions about
the conduct of this case. Mr
Theron
never
informed the Court of any of these facts, nor was the Court ever
informed about the manner in which Dr Kockott had been
instructed,
the role of the Pestalozzi Trust, or that Mr Van Oostrum who had a
very significant interest in this particular case,
deposed to an
affidavit purporting to be that of an independent expert in which he
makes very serious averments that third respondent
should have no
access to her grandchildren.
In
the ordinary course, there would have been no objection to the
Pestalozzi Trust being admitted as an
amicus
curiae.
Certainly
there would have been no objection, on the part of this Court, to Mr
Theron
and Mr
Schettler
acting on behalf of the Pestalozzi Trust and effectively generating
the same sort of evidence and argument. But the Court would
then
have known the nature of their purpose and the objective of the
entire case. That did not happen. For this reason, I am
going to
.submit a copy of this judgment to the Law Society of the Western
Cape, and to the Johannesburg Bar Council. I want
the conduct of
both Mr
Schnettler
and Mr
Theron
to be investigated and I want a full report to be provided to this
Court as to the conclusions of the Bar Council in Mr
Theron's
case
and in Mr
Schnettlers
case by the Law Society.
The
Court takes this conduct very, very seriously. I emphasize this is
the first time in my career, which spans more than eleven
years on
this bench, that I have ever done this, but given the nature of a
case concerning small vulnerable children, I do not
consider that I
have any other alternative, particularly because I wish to remind
the legal community that they have a duty to
this Court, as they
also do to their clients.
With
these remarks I can now turn to the relief. As
I
have
already indicated the order that
I
now
must make takes cognisance of the notice in terms of Rule 34(2).
There is one last issue however that
I
must
now raise, the question of costs. Ms Weyer who, with great
distinction, appeared on behalf of the applicants, urged me, as
a
mark of the disapproval of the Court, to order costs on the basis of
de
bonis propriis
against
the first respondent's attorney. Given the manner in which this case
was conducted, the real issue, being the best interests
of D and S,
was not ventilated in a proper and cost efficient manner between the
parties because the dispute was hijacked and
prolonged by the
complications to which I have made reference. There is no question
that a cost order against first respondent's
attorney
de
bonis propriis
on
the scale as between attorney and client is justified, but not for
the whole case. Evidence would have had to be led in any
event, and
accordingly the order will be granted for the second day of
evidence, as a mark of the extreme displeasure of this
Court in the
manner in which this case was prosecuted.
For
these reasons the following order will be made:
1.
The first respondent shall:
1.1.
Enrol the two minor children, S S and D S (the children) forthwith
for the commencement of the 2010 academic year at one
of the
educational institutions referred to in the recommendations of the
jointly appointed expert Dr Anita Worrell, contained
in the reports
prepared by her in respect of the children and filed on record on 3
November 2009. First respondent shall provide
documentary proof to
this Court of such action not later than Monday 18 January 2010.
1.2.
Continue with the education in a manner consistent with the
recommendations of Dr Worrell in the best interests of the children.
2.
Whilst at school the progress and educational remedial needs of the
children shall be further monitored by Dr Warrell at six
monthly
intervals, beginning June 2010 and fully investigated and assessed
by her prior to 31 June of the year in which the children
are
respectively in grade 7. Dr Worrell is requested to direct at that
stage whether the assistance of duly qualified experts
that she may
deem necessary to assist her to evaluate and recommend in her report
what schooling afterwards would be in the best
interests of one or
both of the said children in respect of their secondary education.
The deceased estate of the late Jonathan
Shapiro
(hereinafter the deceased estate) and represented in these
proceedings by the first and third applicants, shall
be bear the
costs of Dr Worrell and such further experts that she may require to
assist her in performing her duties and functions
in terms of
paragraph 1 above.
3.
The first respondent is ordered to cooperate with Dr Worrell in
carrying out these duties.
4.
The parties agreed that the following maintenance shall be payable
by the deceased estate in respect of the minor children
until they
attain the age of majority, which amount shall be payable monthly in
advance on or before the 1st day of each calendar
year into such
account as first respondent may nominate in writing from time to
time.
4.1.
The amount of R5 000 (Five Thousand Rand) per month per child.
4.2.
The amounts so payable shall be escalated annually by the average
increase for the preceding year in the headline CPIX as
published
from time to time in the Government Gazette with effect from 1
January 2011.
4.3.
The reasonable costs from time to time of accommodation and such
rental with respect to the minor children.
4.4.
The reasonable educational and related costs, including school fees,
school clothes, reasonable extra mural activities, extra
tuition,
remedial teaching/support and like or similar education expenses in
respect of the minor children, provided that same
is in accordance
with the recommendations of Dr Worrell or unless agreed to in
writing by the parties.
4.5.
The costs in maintaining the minor children (and the respondent
until such time as the children attain the age of majority
without
accepting any legal obligations so to do) on the Discovery Health
Coastal Core Medical Aid Plan or a plan offering similar
benefits
thereto. The deceased estate shall also bear the costs of all
reasonable medical. dental, pharmaceutical (on prescription),
surgical, hospital, orthodontic, ophthalmic (including spectacles
and/or contact lenses) and similar medical expenses reasonably
incorrect in respect of the minor children only, including any sums
payable to a physiotherapist, chiropractor, psychologist
or
psychiatrist which are not covered by the medical aid scheme. The
Estate shall not be responsible for the payment of respondent's
medical costs which are not covered by her one third portion of the
medical aid scheme benefits.
4.6.
The deceased estate shall pay any such expenses not covered by
the medical aid scheme within fourteen calendar
days of
presentation of invoice/proof of payment being made to Mr Schneider:
all claims for the payment of excesses or claims
not paid or not
payable by the scheme against the deceased estate must be submitted
to Mr Schneider or his nominee within a reasonable
time of the
scheme refusing to pay the claim.
4.7.
First respondent shall ensure that she complies with the rules of
the medical aid scheme and she shall submit all claims
to the scheme
within 30 days of date of invoice to her. Any failure by her to
comply with the rules of the scheme, including
authorisations or
pre-authorisations, or failure to submit claims timeously to the
scheme, shall result in the deceased estate
not being liable in
respect of that claim.
4.8.
Any dispute in regards to the payment of any medical expenses
defined herein shall be referred to a FAMAC appointed facilitator
shall be entitled to facilitate the dispute and make a ruling that
is binding on both parties, unless it is varied by a Court
of
competent jurisdiction, alternatively varied by the facilitator
following a separate review. The costs of the facilitator
shall be
shared equally between the parties unless directed to the contrary
by the facilitator.
5.
In regard to the issue of contact with the children the
paternal family has agreed as follows;
5
1 There shall be contact between the fourth applicant, Mrs Shapiro,
on two weekend days per month, on either a Saturday or a
Sunday,
such reasonable periods as may be agreed between Mrs Shapiro and
first respondent from time to time.
5.2.
For so long as it may be reasonably required an agreed third party,
acceptable to both parties, will accompany the children
to their
visits to Mrs Shapiro.
5.3.
The siblings of the deceased and Mrs Shapiro shall have reasonable
telephonic and electronic contact to the minor children
at all
reasonable times.
5.4.
In the event of deceased siblings or their immediate families
wishing to have contact with the children this shall be arranged
directly with the respondent who shall attempt to facilitate rather
than obstruct such reasonable cond uct.
5.5
In the event of there being any dispute regarding contact
howsoever arising it is agreed to the matter being referred to
a
facilitator as set forth in 4.8 above.
6. The
costs of the second day of the hearing shall be paid by the
respondent's attorney
de
bonis propriis
on
a scale as between attorney and own client, as a mark of the Court's
displeasure at the manner in which the proceedings have
been
conducted by him. There is no other award as to the costs.
DAVIS, J