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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

EASTERN CAPE LOCAL DIVISION – PORT ELIZABETH

                                                                Not Reportable

Case No:  786/05

In the matter between:

K                                                                                                                                   Applicant

And

K                                                                                                                              Respondent

JUDGMENT

REVELAS J:

Introduction

[1] This is an application for an order granting custody of a minor child to the applicant, alternatively, for an order granting him reasonable access to her, including an order that she visits him on alternate weekends, from Friday afternoon at 17h00 to Sunday at 17h00. The applicant is the biological father of the minor child (or “D.”), born on […..] of his relationship with the respondent, from whom he had become estranged in November 2004. Since then the minor child has been living with the respondent, who has throughout been the child’s primary caregiver. When this application was brought nine years ago, D. was […] years old.

The Application

[2] The applicant’s case in his founding affidavit is that he is a better parent for D. than the respondent because, so he said: he had a larger home than the respondent’s mother with whom she and D. lived; he intended to obtain a domestic helper to assist in the house and with D., but he would bath D. himself; D. would have her own room, and he had always been involved in her care.

[3] The applicant maintained that the respondent was not able to care properly for the minor child who did not eat properly and was underweight. He alleged that the respondent’s health was too poor to properly take care of a child. It was common cause that the respondent suffered from tuberculosis five years prior this application. The applicant stated that she always had a runny nose. According to the applicant, the respondent was also mentally unstable and suffered from depression. It was common cause that she attempted to commit suicide, also about five years before this application was launched and that she suffered from depression.

[4] The respondent filed an answering affidavit to which the applicant filed no reply. According to the respondent, she owned the house in which she and the minor child lived and her mother lived with them. She disputed that the applicant’s home was more suitable for D., because it had a swimming pool which could easily be reached by a child as it had no safety measures in place.  The respondent also alleged that for the duration her long relationship with the applicant, she was the victim of constant physical abuse by the applicant, such as being burnt with cigarettes and once being beaten with a broomstick until it broke. Her depression she attributed largely to the abuse and her relationship with the applicant, generally. The respondent’s assertions in this regard were supported by medical evidence attached to her affidavit. Dr PJ Jacobs, a medical doctor, wrote on 6 January 2005: the respondent was tested for, and no longer suffered from tuberculosis; on 26 November 2004, she had reported an assault to him as a result of which he noted that she suffered from a broken jaw, a bruised foot, a broken toe and a burn wound on her head. He also noted that she was depressed and anxious. Dr Ian Taylor, a psychiatrist wrote the following in a letter on 3 March 2005: since her relationship (with the applicant) came to an end, the respondent’s mental state was much improved; she demonstrated no suicidal ideation or behaviour, and was no longer depressed.

[5] Dr LC Jordaan, a pediatrician, certified on 10 January 2005 that D. was in good health and her growth rate was excellent. He did notice some fluid on one of her eardrums, which he added, should clear up soon but to him the child seemed to be in good care. The respondent was at home during the day, and could give the minor child her full attention.   The respondent was boarded due to her ill health and thus received an income while she was at home with her child and available for her at all times. According to the respondent, the applicant himself was also of poor health due to a heart attack he had before this application.  In the absence of a replying affidavit, the respondent’s version must be accepted.

[6] On the affidavits filed by the parties the applicant made out no proper case for the relief he sought. The respondent was manifestly the more suitable caregiver and the minor child, a toddler at the time, was too small to be away from her mother in the applicant’s care for a whole weekend. The respondent never denied the applicant reasonable access to the child. The matter did not proceed to the hearing stage was because the parties abided by the Family Advocate’s recommendations. These were in line with the contact arrangements proposed by the respondent, which the applicant had in any event been enjoying when he brought the application.  Structured access to the minor child, with regard to age appropriate guidelines, was also recommended.

Further Developments 

[7] When this application was brought nine years ago in March 2005, it was not enrolled for hearing until 5 May 2011, when it was struck from the roll in chambers by Pillay J who did not articulate his reasons for doing so. The next occasion upon which the matter came before a judge was on 30 July 2011. At that stage the Family Advocate had filed thee reports in 2005, 2007 and 2009 respectively pertaining to the best interest of the minor child. The report was premised on information gleaned from social workers, psychologists and other persons involved in the enquiry into what would be in the best interests of D. The application was postponed sine die by Plasket J to obtain a more recent report from the Family Advocate.

[8] A fourth report from The Family Advocate was completed on 21 September 2012.  The same psychologist and social worker who reported in this matter in 2005, as well as a clinical psychologist all assisted the Family Advocate and their reports were attached to the fourth report. Thereafter the matter was, for some inexplicable reason, enrolled for hearing on the trial roll for 19 March 2014, instead of the motion court roll. I decided not to postpone the matter yet again, to the motion court roll, but to finally dispose of it. This application brought nine years ago when the applicant, was represented by a firm of attorneys (who later withdrew from the matter) and a so-called independent advocate (who was no longer appearing on his behalf). Presently he appears in person.

The Second Report (28 December 2007)

[9] In 2007 the minor child made allegations to the effect that the applicant had inappropriately touched her private parts (inserting his finger into her vagina).  She was the four and a half years old. The respondent reported that D.’s behavior changed.  She became aggressive and disobedient whenever she returned from a visit with the applicant and returned to normal when she did not see him for a while. She also became unable to control her bowel movements. The minor child reported to Ms R Bosch, one of the two social workers involved in the enquiry (at the behest of the family advocate), that her father once put ointment inside her vagina with his finger and it hurt afterwards. She told Ms Bosch that even though she had cried, he did nothing. Ms Bosch observed that the child clearly experienced the incident as traumatic. After revealing what had happened, she told Ms Bosch that she would like to visit her father, but not at his house.

[10] A medical practitioner, Dr Ruiters found redness inside the minor child’s vagina and bruises and lacerations outside it. He mentioned that it was debatable that the injuries were caused by her “father’s finger”. Dr Ntshangani, also of Uitenhage Provincial Hospital, examined D. and completed a medico-legal report wherein the same injuries mentioned by Dr Ruiters were listed. In her statement to the police the respondent stated that her child had reported to her that the respondent first put one finger and thereafter placed four fingers inside her vagina. The criminal case came to nought, apparently due to insufficient evidence. The respondent also reported an incident to the social worker Ms L Duckitt, where the applicant openly and in front of her cleaned the inside of child’s private parts after first covering his finger with a tissue cloth. She strongly disapproved of the applicant’s conduct but presumably understood that in the event that the applicant had done this a second time, in the interests of hygiene, even if it were misguided and open to censure, the child’s allegation ought not to deprive the applicant from all access to her. Simply put, there was insufficient evidence of sexual interference with the child. That would explain why there was no recommendation that contact between the minor child and the applicant be suspended.  However, D. continued to attend sessions with psychologists.

[11] The parties had also participated in mediation.  On 18 September it was recorded by the Family Advocate that during the course of the mediation both parties agreed that the applicant “acquires full parental responsibilities and rights in respect of the minor child.” The Family advocate recommended that the minor child should continue visits with her father, but that visits with him should be supervised. The applicant’s parenting skills were rated as poor by the psychologist and social workers who had interviews with him during the enquiry preceding the Family Advocate’s report dated 28 December 2007. He was encouraged to attend parental guidance programs.

The Third Report (12 October 2009)

[12] The respondent, in the interim, became engaged to be married to Mr G.C.  On 25 November 2008, D. made a similar allegation (about sexual molestation) against him at the Cosmos Rape Crisis Clinic in the Uitenhage Provincial Hospital, during one of the assessments meetings conducted by Ms M Coetzee of the aforesaid clinic. The latter compiled a report which formed part of the Family Advocate’s investigations in respect of the third report. The applicant twice laid criminal charges against Mr G.C., alleging that he had sexually molested D. These charges were not prosecuted due to a lack of evidence. In a later assessment at the clinic on 1 January 2008, D. denied that G.C. ever abused her and said he made her laugh because of his jokes. She, however, reiterated that her father had molested her. She told Ms Coetzee that the applicant had rubbed himself against her genitalia, inserted his finger there and that it hurt.

[13] On 19 January 2009, Ms L Cilliers, D.’s teacher, wrote a letter to the respondent, requesting a meeting. She informed the respondent that D. had reported to her that her father was hurting her. When questioned further, it was established that she meant sexually. The Family Advocate opened a new enquiry assisted by Mr G Goosen, a psychologist and family advisor, who also assisted the Family Advocate with her report of 2005 (in the same enquiry) and Ms L Duckitt who also wrote a previous report.  The latter reported that D. consistently disclosed to her mother, her teacher, and Ms M Coetzee that the applicant had been molesting her. During their investigations it was established that D.’s relationship with her father had broken down to the extent that she no longer wanted to have any contact with him, and did not have any contact with the applicant for a substantial period prior to the investigations in 2009. As a result of this period of not interacting with the applicant, she became happier, regained an appetite and control over her bowel movements.

[14] Based on the reports of Mr Goosen and Ms Duckitt, the Family Advocate advised that the applicant had no insight into the needs of the minor child, the effects of his conduct on her or what appropriate behaviour towards his daughter entails. Mr Goosen repeated what he observed about the applicant in his earlier report in 2005. Both Mr Goosen and Ms Duckitt accepted that the minor child had been molested by the applicant.  It was recorded by Ms Coetzee that the applicant thwarted the efforts of the supervisors who were appointed to supervise the applicant’s visits with his child (it is not entirely clear how) and he managed to elude them. He took D. into his bedroom, alone, where she said he molested her while one of the supervisors was still in the house.  It appears that the applicant somehow got rid of the supervisors on more than one occasion when D. went to visit him and he also persuaded D. to report to two of the supervisors that Mr G.C. and a man called Ettienne had molested her. Later she admitted that she had lied about that. Her explanation was that the applicant had told her if she did not accuse them of molesting her, her mother would go to prison and she would end up in an orphanage.

[15] It was also reported to the Family Advocate that the applicant had accused the respondent of occult activities, inter alia, that she cast a spell on his house and the offices of the family advocate and went around his house and stroke a magic potion onto his windows, whereafter supernatural forces were at work in his house, taunting him. This, so the applicant said, he had observed in a dream.  During MMPI-2 testing of the applicant’s personality profile, conducted by Mr Goosen in 2005, he was found to be too dishonest to make a conclusive finding in terms of the applicable protocol, but that he had a high score in “Scale 4: Psychopathic Deviation”.

[16] It was observed by Mr Goosen in his report that the respondent had succeeded in creating a peaceful and safe environment for the minor child. The child trusts her stepfather and he is kind to her. His sons of a previous relationship regard D. as their sister and she regards them as her brothers.  Mr G.C. was described by Mr Goosen as a stable, calm person who would not harm a child.

The Fourth Report (21 September 2012)

[17] The Family Advocate was of the view that the minor child’s strong wish not to have contact with the applicant ought to be respected. It was concluded that the applicant was insensitive to the needs of the minor child and could not make any positive contribution to her life at that stage.  The Family Advocate recommended that all contact between the minor child and the applicant be suspended.

[18] In the fourth report of the Family Advocate, one year later, the recommendation remained unaltered. According to this report, the minor child, aged nine was doing very well at school, was happy in her home environment, and her only fear was that she would be forced to have contact with her father. The following important evidence emerged from the report:

The minor child no longer refers to the applicant as her father, but simply as “Koos”, with whom she wants no contact whatsoever.  She regards her stepfather as her real father. She stated that as far as she was concerned, the applicant no longer existed, because of what he did to her at ‘the dam’ (presumably referring to an incident of sexual molestation). She even wanted to change her surname to G.C. She reported that she might be prepared to visit her father one day when she is [……] old and she can defend herself against him.

Conclusion

[19] Since 2009, five years ago, the minor child has expressed this strong wish not to have contact her father. In my view, there are very compelling indications that the applicant probably sexually abused his daughter on several occasions and tried to shift the blame onto innocent persons.  In my view, and based on the evidence thus far, he would continue to do so if he had contact with her. Clearly, the applicant, through his conduct, forfeited any rights of contact he had with child.

[20] To grant the applicant access to the minor child would be to force her into a situation which she fears.  That would affect her adversely and clearly such an order would not be in her best interests. D. is now eleven years old.  Since contact with the applicant ceased, her mental state has improved drastically. She is happy and safe.  She has a chance at living a normal life. In these circumstances, it would be inappropriate to make any order in terms whereof the applicant would have access to her.

[21] In the result, it is ordered that:

(a)The application is dismissed with costs

(b)The recommendations of the Family Advocate as contained in her report dated 21 September 2012 (that all contact between the applicant and the minor child be suspended), are incorporated in this order.

___________________

E REVELAS

Judge of the High Court

For the Plaintiff:                  In person:  Mr K

                                                Uitenhage

 

For the Respondent:            Mr Lessing of Lessing Heyns Keyter & van der Bank

                                                 Port Elizabeth

 

Date Heard:                       19 March 2014

Date Delivered:                  01 April 2014

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