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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

 

IN THE HIGH COURT OF SOUTH AFRICA

FREE STATE DIVISION, BLOEMFONTEIN

 

Reportable: NO

Of Interest to other Judges: NO

Circulate to Magistrates: NO

 

Case no: 4120/2020

 

In the matter between:

 

P.S.D                                                                                                        Applicant

 

and

 

C.G.V                                                                                                       1^st Respondent

HENRY TEETON WICKENS TROMP                                                     2^nd Respondent

MARIE TROMP                                                                                       3^rd Respondent

THOMAS MOODIE TROMP                                                                    4^th Respondent

 

CORAM:                   JP DAFFUE J

 

HEARD ON:             22 JULY 2021

 

DELIVERED ON:    19 AUGUST 2021

 

This judgment was handed down electronically by circulation to the parties’ representatives by email, and release to SAFLII. The date and time for hand-down is deemed to be 09:30 on 19 AUGUST 2021.

 

[1]        The best interests of C[....] W[....] Venter (“C[....]”) who turned 11 years old on 26 March 2021 is at the heart of the acrimonious litigation between the applicant in whose care he was for a number of years and C[....]’s natural father, the first respondent.

 

[2]        On 22 January 2021 I gave written reasons for my order granted on 18 January 2021. I do not deem it necessary to quote the order in full, save to state that the return date of the rule nisi granted earlier was extended to 22 July 2021 and the Family Advocate was directed to file a report on/or before 30 June 2021.

 

[3]        The applicant filed a supplementary affidavit as authorised on receipt of the Family Advocate’s report, but no supplementary affidavit was filed on behalf of the first respondent.

 

[4]        Before the hearing, which was conducted on the virtual platform, Microsoft Teams, I was placed in possession of a draft agreement and a written mandate to the case manager to be appointed. I shall return hereto later herein.

 

[5]        I do not intend to repeat the history of the dispute between the parties, save to quote the following two paragraphs from my written reasons delivered on 22 January 2021:

 

“[28]    First respondent is C[....]’s biological father and unless something traumatic, dramatic or unforeseen occurs pending finalisation of this application, his right to care should be restored.”[1]

“[38]    In my view C[....] should be allowed more opportunities to form a closer bond with his biological father in a natural way. Therefore, I ordered that first respondent should have unsupervised contact with him during the last weekend of January, two weekends per month from then onwards, the first week of the March/April’s as well as the first week of the June/July public school holidays. Over and above that he should have reasonable telephonic and video call access to C[....] as well.”[2]

 

[6]        The Family Advocate made certain recommendations in his report[3]. As I anticipated in my aforesaid reasons, the Family Advocate recommended that primary care and place of residence of C[....] should be awarded to the first respondent. He continued his recommendations by inserting two sub-paragraphs pertaining to the appointment and mandate of a psychologist or other suitable professional to be appointed and I quote:[4]

 

“9.5     That the appointed psychologist or other suitable professional appointed assist the applicant and the 1^st Respondent to draft arrangements that will enable the child to have contact with L[....]. This is to be done before the end of the period of no contact contemplated in paragraph 9.4 or as advised by the appointed psychologist or other suitable professional appointed. Such arrangement to include contact during weekends, school holidays, birthdays and contact on any such days as may be identified and agreed by the parties.

9.6       Consideration should be made that the appointed psychologist or other suitable professional appointed act as a case manager who will mediate any dispute that may arise from the implantation of the court’s order. Where necessary the case manager may further be directed to monitor, report and make further recommendations to the court on the progress of the implantation of the court’s order.”

 

[7]        I need to digress a bit and mention that I have already during the hearing thanked Mr Kabelo Khara, the Family Advocate and his family counsellor, Me M Pretorius, for the detailed and extremely well-prepared reports, having to work through piles of documents, affidavits and reports as well as conducting several interviews. I wish to repeat my appreciation in writing.

 

[8]        The draft agreement placed in my possession a day before the hearing consists of 8 paragraphs. I was informed prior to the hearing that the contents of paragraphs 5 and 6 were in dispute and would be dealt with during argument. I quote these paragraphs:

 

“5.        The appointed psychologist, will act as a case manager who is directed to mediate any dispute that arises in the implementation of this Court order, for a period of 6 months / 12 months, in terms of the power set out in the mandate attached hereto in terms of the powers set out in the mandate attached hereto as Annexure “X”.

6.        The aforementioned case manager is further directed to monitor the wellbeing of C[....] Venter and deliver a report to this Court and the parties, as soon as possible, if the above-mentioned is of the view that C[....]’s best interests are threatened.”

 

[9]        During argument Mr Snellenburg who appeared for the applicant indicated initially that he had a problem with paragraph 6, but conceded eventually that there could be no objection to this paragraph being made an order of court. Therefore, the two disputed issues are:

 

1.         The period of appointment of the psychologist, i.e. either six or twelve months; and

2.         The ambit of the powers to be granted to the psychologist and in this regard, I shall refer to the written mandate provided to me as well.

 

[10]      It became clear during argument that, save for the aforesaid two issues, the remaining paragraphs of the draft agreement could be inserted in the order of court. Consequently, the following order was granted:

 

“1.        The 1^st Respondent is awarded primary care and place of residence of the minor child C[....] Venter (“C[....]”) which will be effective from 18 July 2021.

 2.        During the first 60 days after C[....] is moved to the primary care of the 1^st Respondent, the Applicant and his family will not be permitted any physical contact with C[....]. Reasonable telephonic and video contact will be permitted at all reasonable times.

 3.        Following the period referred to in paragraph 2 above, the Applicant and his family, including the minor child L[....] du Plessis, will be entitled to contact with C[....] and the right of him visiting them on the following basis:

3.1         One short school holiday per year;

3.2         One week of each long school holiday;

3.3         One weekend a month;

3.4         For 3 hours on C[....] or L[....]’s birthday if same falls over a weekend or holiday;

3.5         Over and above the visitation rights above, reasonable telephonic and video call contact at all reasonable times.

 4.        The 1st Respondent, at his expense, shall urgently and without delay appoint a Clinical Psychologist recommended by the South African Society of Clinical Psychologists for C[....] who shall specifically address C[....]’s relationship with the 1^st Respondent and the loss of C[....]’s mother.

5.         The aforementioned case manager is further directed to monitor the wellbeing of C[....] and deliver a report to this Court and the parties, as soon as possible, if the above-mentioned is of the view that C[....]’s best interests are threatened.

 6.        The 1st Respondent shall fetch C[....]’s personal belongings, at his own cost, from the Applicant.

 7.        Each party shall pay their own costs.

THE FOLLOWING FURTHER ORDER IS ISSUED:

8.  The issues pertaining to the duration of the case manager’s appointment and the terms of his/her mandate will be considered and judgment in that regard is reserved.”

 

[11]      The parties failed to present me with heads of argument as directed in my order of 18 January 2021. I appreciate that they deemed it unnecessary in so far as there were indications that they might settle the dispute in full, but unfortunately this did not materialise. I was also asked not to read the papers in anticipation of such settlement. A day before the hearing I was told that settlement could not be reached, necessitating perusal of some of the voluminous documents.

 

[12]      It is apposite to mention some relevant aspects before dealing with the parties’ submissions. Section 6(4)(a) of the Children's Act[5] provides that:

 

 “In any matter concerning a child —

(a) an approach which is conducive to conciliation and problem-solving should be followed and a confrontational approach should be avoided;”

 

Apparently, in order to prevent unnecessary future litigation between spouses in divorce proceedings a practice has evolved in the Western Cape in terms whereof parenting coordinators are appointed as part of parenting plans incorporated in deeds of settlement entered into between divorcing parents.[6] Parenting coordinators may also be referred to as case managers as the parties in this matter elected to do, bearing in mind that the parties are obviously not divorcing parents. Parenting coordinators are usually tasked with mediating disputes between the parties which may follow after divorce. In my view the appointment of suitable professional persons to act as parenting coordinators or case managers to mediate any disputes relating to the implementation of court orders is in line with the object of the legislature as set out in s 6(4)(a) quoted above. It may often be in the best interests of children, which is of paramount importance, to appoint such professionals. Frequent conflict between parties after divorce is often encountered and bearing in mind the costs of litigation a capable and experienced professional may well prevent future litigation and ensure proper implementation of the court order. However, care should be taken to prevent the unlawful delegation of the court’s powers to the parenting coordinator or case manager.

 

[13] I agree in principle with the following exposition by Diane Davis AJ in TC v SC[7]:

 

“[51]    To my mind the following three factors provide a useful starting point for a consideration of the limitations which should be imposed on a PC's powers:

 [51.1]             First, the AFCC definition of parenting coordination envisions the role of the PC as assisting high-conflict parents to implement their parenting plans and, to that end, with the consent of the parties or the authority of the court, making decisions within the scope of the court order or appointment contract. This definition of parenting coordination, which I endorse, contemplates the existence of a parenting plan in which the parties' parental rights and obligations have already been agreed or fixed by an order of court.

 [51.2]             Second, the Act sets out the substantive matters which lie within the exclusive preserve of a court to decide, having regard to the standard of the best interests of the child. These matters include care and contact, guardianship, and the termination, extension, suspension or restriction of parental responsibilities and rights. Any purported delegation to a PC of the power to decide these matters would be unlawful. Thus, for example, it would be unlawful and invalid to confer on a PC the power to change the primary residence of a child, or to alter the allocation of contact between the parents, or to determine whether or not a parent's contact with a child should be supervised.

 [51.3]             Third, s 34(5) of the Act prescribes that parenting plans which have been made an order of court may only be amended or terminated by an order of court on application, while s 22(7) provides that only the High Court may confirm, amend or terminate a parental responsibilities-and-rights agreement which relates to guardianship of a child. These provisions make it clear that a PC cannot make a valid directive which has the effect of amending a court-ordered parenting plan.

[52]     To my mind these three considerations provide a road map for the limitations which need to be imposed on the functions and powers of a PC.

[53]     In my view the first and foremost limitation on the appointment of a PC should be that the parties must have already reached agreement of the terms of a parenting plan, whether interim or final, which has been made an order of court, and the PC's role must be limited to addressing implementation of or compliance with an existing court order.” (footnotes omitted)

 

[14]      I was told before the hearing that the written mandate of the case manager to be appointed was in dispute in so far as paragraphs 9 and 10 thereof in particular were objected to by the first respondent although the applicant was of the view that there could be no objection thereto. I shall later refer to the concessions made during oral argument by Mr Snellenburg. Although I was informed that paragraphs 9 and 10 only were in dispute, Mr Van Aswegen intended to argue that many more paragraphs could and should not be made orders of court, starting with paragraph 6 of the written mandate. Later he conceded that he did not have specific instructions in this regard, but submitted that the court should not make orders granting the case manager such powers that it would be a delegation of the Court’s powers. In this regard he was supported by Mr Kara and they both relied on TC v SC.[8] In my view paragraphs 9 and 10 as well as 12, 14 and 15 appear to be not only micro-management in respect of the functions of the psychologist to be appointed, but in the process the court’s powers are being incorrectly delegated to the expert. I leave open whether the broad ambit of the intended mandate might cause the expert to act outside the ambit and scope of his/her duties and functions as set out in the Code of Conduct to which he/she is bound.

 

[15]      Mr Kara, who was requested to address me at the onset, referred me to TC v SC[9] as mentioned earlier. He objected to the wide powers purported to be given to the case manager, submitting that such wide powers would impinge on the powers of the court. As indicated, Mr Van Aswegen who was instructed on short notice to appear on behalf of the first respondent, also relied on this authority as well as Hummel v Hummel. [10]

 

[16]      Mr Snellenburg submitted that the history of the matter serves as proof why the duration of the psychologist’s appointment should be 12 and not 6 months as relied upon by the first respondent and why the case manager’s mandate should be as broad as possible. During argument he conceded that legal representatives should not be present during meetings arranged by the case manager as provided for in subparagraph 9.3 (and also paragraph 15).

 

[17]      During argument Mr Snellenburg also conceded that the case manager should not be entitled to issue directions pertaining to the termination, extension, suspension or restriction of the parties’ care or contract rights as provided for in subparagraph 10.3 of the written mandate as this is the court’s prerogative. He therefore submitted that reference to this aspect and the issue of legal representation referred to in the previous paragraph should be struck out from subparagraphs 9.3 and 10.3, but that there could be no objection to the inclusion of paragraphs 9 and 10, as amended, as part of the psychologist’s mandate.

 

[18]      Two draft orders were attached to the applicant’s supplementary affidavit filed on 2 July 2021. In both drafts the applicant accepted that the primary care and place of residence of C[....] should be awarded to the first respondent although the drafts differ in respect of the effective date. More importantly pertaining to the present dispute between the parties, paragraphs 4 and 5 of draft order one, (which have been copied and pasted to paragraphs 8 and 9 of draft order two) read as follows:[11]

 

“4.        The First Respondent, at his expense, is to immediately appoint an independent psychologist who the Applicant finds suitable for C[....] Venter, who should specifically address the C[....]’s relationship with the First Respondent and the loss of the C[....]’s mother.

5.         That the appointed psychologist or other professional deemed suitable by this Court be appointed to act as a case manager who is directed to mediate any dispute that arises in the implementation of this court order. The aforementioned is further directed to monitor the well-being of C[....] Venter and deliver a report to this Court and the parties, as soon as possible, if the aforementioned is of the view that C[....]’s best interests are threatened.”

 

Clearly, the applicant had in mind at that stage to define the mandate of the psychologist to be appointed, but a few weeks later he has changed his initial viewpoint by relying on much wider powers.

 

[19]      Mr Van Aswegen submitted that even applicant recognised earlier that the appointed psychologist’s powers should not be overly broad. He argued that first respondent would be satisfied with the terms as set out in these draft orders and that the terms of the mandate now relied upon by the applicant would be in conflict with the principles enunciated in TC v SC[12].

 

[20]      Mr Snellenburg did not try to show that the principles set out in TC v SC were incorrectly stated and should not be followed, but submitted that if the amendments to the terms of the draft mandate are made as conceded by him during argument, the mandate could be justified and would not be in conflict with the aforesaid principles.

 

[21]      I mentioned to Mr Snellenburg during argument that ethical rules or a code of conduct must surely be applicable to a health professional such as a registered psychologist. My view was that the case manager would be bound by such rules or code of conduct. At that stage no such document was placed before me. Since having heard the arguments, I downloaded the Code of Conduct – Form 223 – from the internet and forwarded same to the legal practitioners in order to seek confirmation that the document is indeed applicable to registered psychologists. Applicant’s legal representative confirmed this and indicated that the intended mandate, to be varied as suggested during oral argument, was not in conflict with the Code of Conduct. First respondent’s legal representative merely indicated that the psychologist shall be bound by his/her Code of Conduct and ethical principles.

 

[22]      It is noted from the Code of Conduct that provision is made for disclosure of confidential information in certain circumstances as could be expected and it is pertinently emphasised that psychologists “shall be cognisant of a child’s best interest”, especially taking “special care when dealing with children 14 years and younger.”[13]

 

[23]      I am not satisfied with a mandate of a mere 6 months’ duration. In my view the first respondent has a lot to prove. He never had the opportunity of having to look after a child on a full-time basis, except perhaps for the few weekends and days allocated to him in my order of 18 January 2021. He could have been C[....]’s grandfather and he is used to the life of a bachelor. I still have my doubts about his stability as a person and the fragile relationship between him and C[....] cannot be disregarded at all. The best interests of C[....] will be served more appropriately if the appointed psychologist is allowed 12 months to facilitate a proper understanding to first respondent as to what fatherhood entails in order to improve the relationship between father and son. Such person will also be responsible to mediate any dispute pertaining to the implementation of the court order as well as monitoring the wellbeing of C[....].

 

[24]      I do not want to micro-manage the duties of the psychologist. The person to be appointed would be qualified and experienced, having been recommended by the Psychological Society of South Africa. Provision is made in the order to be granted for the expert to approach the court if the best interests of C[....] are threatened at any stage.

 

[25]      The following order is issued:

 

1.            The psychologist to be appointed as provided for in paragraph 4 of the order of 22 July 2021 under application 4129/2020 shall, over and above the duties imposed upon him/her in paragraphs 4 and 5 of that order, also act as case manager for a period of 12 (twelve) months from acceptance of his/her appointment and directed to mediate any dispute that arises in the implementation of the order of 22 July 2021.

 

2.            This order is in addition to the order of 22 July 2021 as set out in paragraph 1 above, but save therefore, the order of 22 July 2021 shall remain intact and in full force and effect.

 

 

J P DAFFUE, J

 

 

On behalf of Applicant          :          Advv N Snellenburg SC and JF Mitchley

Instructed by                        :          Phatshoane Henney Attorneys

                                                              Bloemfontein

 

On behalf of 1^st Respondent    :     Adv W Van Aswegen

Instructed by                             :     Thompsons Attorneys

                                                              c/o Rossouws Attorneys

                                                              Bloemfontein

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