IN THE HIGH COURT OF SOUTH AFRICA (WITWATERSRAND LOCAL DIVISION)

CASE NO: 2007/5408

In the matter between:

BLUMENOW, CANDICE STACEY

Applicant

and

BLUMENOW, CRAIG

Respondent

JUDGMENT

MOSHIDI, J:

[1]

This is an application in which the applicant seeks certain interim relief,

including interim custody of the two minor children as set out in her notice of motion dated 5 November 2007.

[2]

The application is strenuously opposed by the respondent. The matter

was initially heard on urgent basis by my Sister, Tshiqi J, on 8 November 2007. At such hearing, it was ordered that the Family Advocate conduct an

2 enquiry into the circumstances of the minor children. The respondent was granted interim custody while the applicant was allowed certain daily access to the minor children, pending the date of postponement. The matter was postponed to 20 November 2007. On this date, the matter was fully argued and I reserved judgment.

What follows, is my judgment and the reasons

therefor.

[3]

The two minor children born of the marriage are Cameron Aiden, a boy

born on 9 July 2002 (Cameron), and Caleigh Reese, a girl born on 5 September 2004 (Caleigh). In terms of the interim order, the minor children are currently in the custody of their father, the respondent.

[4]

The respondent has issued divorce summons in which action he is

claiming custody of the minor children. The divorce action is pending. The main issue in this application is to determine what is in the best interests of the minor children pending the divorce action and thereafter the adjudication of the remaining relief claimed by the applicant.

[5]

The parties were married to each other at Johannesburg on 3

December 2000. The minor children are school-going.

From the papers

before me, there is no doubt that what appears to have been a tumultuous and vicious acrimonious marriage relationship, has now broken down irretrievably. The relationship is characterised by serious allegations and counter-allegations by the parties, all affecting the minor children in one way or the other.

3 [6]

The issuing of the divorce summons was a sequel of a sordid event in

which the respondent had the applicant evicted from the matrimonial home pursuant to an Interim Protection Order issued by the Randburg Magistrate’s Court. The order was issued in terms of section 5(2) of the Domestic Violence Act, No. 116 of 1998, at the instance of the respondent on 21 February 2007. The order admonished the applicant, “not to assault, harass, intimidate, verbally or physically abuse the complainant and children named Cameron and Caleigh not to take both children out of their home, school or any other place without the complainant’s consent”. The return day of the interim order was 17 May 2007. The applicant vehemently denies the basis on which the order was obtained, while the respondent maintains the contrary.

[7]

As a result of the above, the applicant launched urgent proceedings in

this Court on 13 March 2007 for custody of the minor children, an order that she and the minor children remain in the matrimonial home, and other relief. The respondent persisted with the allegations that the relief he requested in the protection order was sought in the children’s best interests and to protect them from what he termed the real threat of harm by the applicant. The respondent’s major allegation is that the applicant has a history of uncontrollable emotional outbursts coupled with her threat to kill herself and the minor children. The respondent alleges that the applicant had told him in detail how she planned to drive around with the children until she reached a suitable place where she could cause a motor vehicle accident with her and the children in the car. This prompted the respondent to remove the children

4 to what he calls a place of safety. The applicant naturally denies all of these allegations.

[8]

The applicant, although a qualified make-up artist, remained a

housewife, looking after the minor children at the instance of the respondent. She was thus left depended upon the respondent for maintenance of herself and the minor children.

[9]

On 13 March 2007 certain settlement agreement was reached between

the parties in the urgent application brought by the applicant. The settlement included that the applicant exercise certain access rights to the minor children at the matrimonial home; that the parties submit to and agree to be bound by the psychological report and recommendations of Margaret Becker (Becker), the proceedings in terms of the Domestic Violence Act set down for 15 March 2007 in the Randburg Magistrate’s Court, be postponed to a date to be arranged between the parties; and that the urgent application be postponed sine die with costs reserved.

[10]

Thereafter, whilst the applicant cooperated fully with and attended

interviews with the psychologist, Becker, the respondent failed or refused to pay for the evaluation which resulted in Becker not releasing a full report, but a summary thereof.

The respondent also failed to attend his scheduled

appointments on 4 April 2007 and/or on 7 April 2007. However, he spoke to Becker telephonically but refused to attend any further evaluation sessions. The respondent alleged that Becker was biased and displayed a hostile

5 attitude towards him. The respondent, in a letter from his attorneys, Malan Kruger, dated 24 April 2007, although denying the allegations, confirmed that he formed the view that the psychologist was conducting the assessment not in an impartial manner. The letter concluded: “We are advised by our client that no assessment has been done on the children, nor has he knowledge of teachers or any other person actively involved in the children’s lives who has been contacted by the psychologist, in order for her to conclude the findings, which again is pointing to partiality … It was for these and other reasons that our client arranged with the psychologists that our client would employ the services of another psychologist to conduct his and the children’s evaluation, thereby ensuring impartiality therein.”

[11]

In her papers, the applicant also complains that she was denied

effective access to the minor children during the operation of the Interim Protection Order. She enlisted the help of the South African Police Service, without any success. The respondent denies this assertion.

[12]

In terms of the settlement agreement of 13 March 2007, the applicant

eventually returned to the matrimonial home on 23 April 2007, apparently on the basis of the findings of Becker. According to the applicant, the parties continued their unhappy and miserable relationship. She continued with her therapy with Jackie Barlev. The purpose of the therapy sessions was in the nature of marriage counselling and life-skills training. As these sessions were aimed at resolving the marital problems, the applicant states that she requested the respondent on numerous occasions to attend but he refused.

6 Instead, the respondent had expressed the wish to see a psychiatrist. She made an appointment for him with one Sharna Vaffer, a psychiatrist. Still the respondent refused to attend. Once more, the respondent in his answering papers merely denies the pointed allegations but avers that to his knowledge, the applicant went to see Sharna Vaffer in order to prescribe medication for the applicant.

[13]

The parties continued their cat and mouse lifestyle at the common

home. This culminated in a physical fight during the last week of October 2007. According to the applicant, the respondent’s behaviour became more abusive and aggressive. She says he grabbed her by the neck and swore at her. He assaulted her viciously. She was in severe pain, and subsequently discovered that she had whiplash. He locked her in the bedroom and told her he was taking the minor children away and she would never see them again. The children were screaming and traumatised. There was a tussle for the children.

Once more, save to admit that he removed the children, the

respondent simply denies the allegations of assault.

It was not the first

assault, according to the applicant.

[14]

After the assault, the applicant was examined by Dr M U Von

Schweitzer on 29 October 2007.

Dr Von Schweitzer compiled a medical

report and referred the applicant to the police station to lay assault charges. The medical report, which forms part of the applicant’s founding papers, confirms that the assault was of a rather serious nature. She had injuries to both forearms, marks on the neck, soreness of the neck and shoulder with

7 muscle spasm injury on the hand and a bruising on the biceps. While at the police station, the applicant observed the respondent with the minor children. The children cried for the applicant but the respondent then demanded that the applicant be removed from the station whilst he was laying a counterassault charge against the applicant. It was the last time the applicant saw the children as the respondent did not return to the matrimonial home and kept the children with him. Once more, save to admit that he removed the children, that he was at the police station, that there is a medical report of Dr Von Schweitzer, the respondent simply denies the rest of the allegations levelled against him without any elaboration or substantiation.

[15]

When the applicant could not locate the whereabouts of the children,

she laid a charge of kidnapping but, once more, the police refused to accept the complaint or open a docket. She then went to the Magistrate’s Court in order to obtain a protection order against the respondent as well as the return of the minor children. On arrival she discovered that the respondent was already there and to obtain a protection order against her. The respondent totally ignored the applicant when she enquired about the children. In spite of her fresh and visible injuries, she was declined a protection order.

The

respondent admits that he saw the applicant at the Magistrate’s Court when he was there to obtain a protection order, but denies the rest of the allegations.

8 [16]

On 31 October 2007, the applicant was served with the interim

protection order. This was in fact the second interim protection order obtained by the respondent against the applicant in terms of section 5(2) of the Domestic Violence Act, 1998.

The order stipulated, inter alia, that the

applicant was allowed contact with the children with prior permission in writing by the respondent or on such other terms set by a High Court order or directive from the Family Advocate’s Office. The return date of the order is 29 January 2008. It is the appellant’s contention that the terms of the order seek to make major curtailments regarding her rights of custody and access to the minor children. Once more, the applicant avers that the interim protection order was obtained on false allegations and contrary to an existing order of this Court. The respondent admits that the protection order was served on the applicant on 31 October 2007 but avers that should the applicant rely on the provisions of this Court’s order, she would also have limited supervised access to the minor children. The respondent is clearly relying on the settlement agreement reached at court on 13 March 2007 pursuant to the urgent proceedings launched by the applicant. The settlement agreement is Annexure “CB2” to the applicant’s founding papers.

This settlement

agreement provides, inter alia, as follows:

“2.

The parties will submit to and agree to be bound by the psychological report and recommendations of the psychologist, Margaret Becker, to be conducted on 22 March 2007.

3.

Pending the receipt of this report, the applicant shall be entitled to exercise access to the minor children, Cameron and Caleigh, as follows:

9 3.1

On weekdays: Tuesdays and Thursdays and Fridays between 13h00 and 18h00 and Mondays and Wednesdays 16h00 to 19h00.

3.2

On weekdays and public holidays, between 12h00 and 18h00.

4.

Such access shall be exercised at the parties’ matrimonial home at 26 Komati Avenue, Gallo Manor and shall be supervised by the domestic worker, Dudu Zonde, alternatively a relative or friend other than the respondent or the respondent’s mother by mutual agreement between the parties, both acting personally. The respondent shall not be present in the same room during the access.

5.

The parties agree to be bound by the report and findings and directions of the psychologist referred to in clause 2 above and in the event of the psychologist’s finding that the applicant poses no threat to the minor children, the applicant shall be entitled immediately to return to the matrimonial home, pending finalisation of the divorce action between the parties.”

It is clear that the settlement agreement offered the applicant more and better access to the minor children than the second interim protection order of 30 October 2007.

[17]

The applicant alleges that on 1 November 2007, the respondent arrived

at the matrimonial home unannounced with a big truck when she was fortuitously at home. The respondent, on seeing the applicant, said he had come to collect a bed for the minor child, Caleigh. She believes this was an attempt to remove household goods. The respondent admits his arrival and presence at the matrimonial home as alleged by the applicant, but contends that he had gone there to collect a bed for the child.

10 [18]

The applicant denies that she has perpetrated any act of domestic

violence against either the respondent or the minor children. She contends further that the respondent has proceeded to effectively take the law into his own hands by physically removing the minor children from the matrimonial home, denying her access to the children, lying to her and refusing to disclose the whereabouts of the children. According to her, the respondent is not in a position to properly look after the children and he has now left the minor children with his infirm mother who is incapable of giving them the necessary care. On the other hand, the respondent contends that the applicant is abusing the court process in that she knows that this matter is pending before the Magistrate’s Court and that High Court litigation is substantially more costly than the lower courts. He insists that he removed the minor children from the matrimonial home out of fear for their safety from the applicant’s emotional outbursts.

It is indeed his view that resorting to the Domestic

Violence Act was cost-effective in dealing with this matter.

[19]

In her founding papers, the applicant also alleges that in terms of

section 18 of Act 38 of 2005 (the Children’s Act), she has been denied parental responsibilities and rights in respect of caring, maintaining contact and acting as guardian of the minor children. In addition, she has no proper employment and occasionally sells jewellery on commission and she requires from the respondent maintenance for herself and the minor children. The respondent merely denies these allegations. He agrees that the minor children are currently staying with him and his mother and are well cared for.

11 He also agrees to return to the applicant her documentation which he confiscated as alleged by the applicant.

[20]

The return date for the second interim order obtained by the

respondent against the applicant on 30 October 2007, is 29 January 2008. According to the respondent the applicant requested the magistrate to bring forward this date to 5 November 2007.

On the latter date, however, the

respondent was served with the current application. It is unclear what exactly transpired at the Magistrate’s Court on 5 November 2007.

[21]

From the above, it is clear that the applicant has been denied custody

of the minor children since the end of October 2007. On her version, she has also been denied access to the children since then, although the respondent denies this.

[22]

One of the orders sought by the applicant in the current application is

the setting aside of the interim protection order issued against her by the Magistrate’s Court on 30 October 2007 under Case No. 1166/2007. The fate of the first interim protection order obtained by the respondent on 21 February 2007 under Case No. 263/2007, is unclear from the papers.

It was last

postponed on 15 March 2007 to an unspecified date to be arranged between the parties. It follows, however, that if the second protection order is set aside, this first protection order should suffer the same fate.

12 [23]

At the hearing of the matter, the respondent raised two points in limine.

These are, and I quote from his heads of argument:

“Whether this Honourable Court has the necessary jurisdiction to set aside an interim protection order obtained in proceedings which is still pending in the Magistrate’s Court; and that there exist no ground for urgency.” The latter point is relatively easier to dispose of. It is trite law that the interests of minor children are of paramount importance. See in this regard McCall v McCall 1994 (3) SA 201 (CPD); and F v F (2006) 1 All SA 571 (SCA). A matter such as the current matter, where there is a need to remove uncertainty about the future, safety and well-being of minor children, will always be urgent.

See Terblanche v Terblanche 1992 (1) SA 501 (W). I

therefore deemed it necessary to deal with this matter as one of urgency. The second point in limine, in my view, is equally based on shaky grounds. For the argument to succeed, the respondent bears the onus of proving that the pending matter in the Randburg Magistrate’s Court is an action instituted; that the parties are the same; and that the cause of action is the same. In the matter in the Randburg Magistrate’s Court, the cause of action is allegedly (the applicant contests the allegations) to prevent violence from being inflicted upon the respondent and/or the minor children.

The preamble to the

Domestic Violence Act 116 of 1998 reads: “To provide for the issuing of protection orders with regard to domestic violence; connected therewith.” (my underlining). domestic violence as follows:

and for matters

Section 1 of the Act defines

13 “’Domestic violence’” means – (a) (b) (c) (d) (e) (f) (g) (h) (i) (j)

physical abuse; sexual abuse; emotional, verbal and psychological abuse; economic abuse; intimidation; harassment; stalking; damage to property; entry into the complainant’s residence without consent, where the parties do not share the same residence; or any other controlling or abusive behaviour towards a complainant, where such conduct harms, or may cause imminent harm to, the safety, health or well-being of the complainant.”

Nowhere in the Act are the words “access” or “custody” defined.

In the

present application, the cause of action is clearly to reinstate custodial and access rights to the applicant and thereafter deal with the rights of the minor children, together with other ancillary relief which the Magistrate’s Court is not enjoined to deal with. If the application in the Domestic Violence Court does remain in force, the respondent will be seeking an order of protection. He will not and cannot be seeking an order relating to custody and access, as the Magistrate’s Court is not competent to grant such relief.

In addition,

paragraph 4.1.5 of the second interim protection order reads as follows:

“The respondent is allowed contact with the following child(ren) Cameron Blumenow and Caleigh Blumenow with prior permission in writing by the complainant on the following basis: On terms set out by a High Court order or the directive from the Family Advocate’s Office should same be capable of being involved in this matter.”

14 On the respondent’s own papers, he acknowledges that the High Court is in a position to deal with aspects of his domestic violence application concurrently with his lower court application.

[24]

There is indeed another compelling consideration which makes the

second point in limine untenable. It could never have been the intention of the Legislature in enacting the Domestic Violence Act 116 of 1998, to remove the common-law powers of this Court as the upper-guardian of all minor children to adjudicate over what is in the best interests of such minor children. If such was the intention, it would have expressly said so. In Girdwood v Girdwood 1995 (4) SA 698 (C) at 708J-709A, Van Zyl says:

“As upper-guardian of all dependent and minor children this Court has an inalienable right and authority to establish what is in the best interests of children and to make corresponding orders to ensure that such interests are effectively served and safeguarded.” In dealing with the High Court’s powers to vary domestic violence protection orders, Van Heerden J in Narodien v Andrews 2002 (3) SA 500 (CPD), at 512D-E says:

“The inherent common-law powers of the High Court as the upperguardian of all minor children within its area of jurisdiction formed the historical background to certain statutory powers vested in the High Court in relation to children. Thus, in terms of section 5(1) of the Matrimonial Affairs Act 37 of 1953 (as substituted by s 16(a) of the Divorce Act 70 of 1979), the High Court has the power to make any order which it deems fit in respect of the custody or guardianship of, or access to a legitimate minor child, on the application of either parent, in cases where the child’s parents are divorced, or are still married but live apart from each other.”

15 At p 514 of the Narodien case at E-F the following is said:

“A Magistrate’s Court is a creature of statute and has no inherent jurisdiction such as is possessed by the High Court. It therefore has only those powers which have been conferred upon it expressly or by clear implication, either in terms of statute creating it (i.e. the Magistrate’s Court Act 32 of 1944) or by other statutes (see, for example, Rutenberg v Magistrate, Wynberg, and another 1997 (4) SA 735 (C) at 750G-751C and Sati v Kitsile 1998 (3) SA 602 (E) ((1998) 1 B All SA 530) at 605C-607I (SALR) at 533g535i (B All SA), as also Erasmus and Van Loggenberg Jones & Buckle The Civil Practice of the Magistrate’s Court in South Africa 9th ed (1996, with loose-leaf updates) Vol 1 (The Act) 34-5 and authorities there cited).” The unreported judgment of Fevrier AJ in Bruni v Bruni (WLD Case No. 18076/04), relied upon by the respondent, is therefore of no assistance to the respondent. In my view, as a result, both points raised in limine have no legal basis at all.

[25]

The merits of this application must of necessity be resolved on the

basis of what is in the best interests of the minor children pending the divorce action. In McCall v McCall (supra), although dealing with the more vexed issue of custody of a 12 year old boy to his father, the criteria and guidelines expressed by King J at 204I-205A-F are rather instructive, these are as follows:

“In determining what is in the best interests of the child, the court must decide which of the parents is better able to promote and ensure his physical, moral, emotional and spiritual welfare. This can be assessed by reference to certain facts or criteria which are set out hereunder, not in order of importance, and also bearing in mind that there is a measure of unavoidable overlapping and that some of the listed criteria may differ only as to nuance. The criteria are the following: (a) the love, affection and other emotional ties which exists between parent

16 and child and the parent’s comfortability with the child, (b) the capabilities, character and temperament of the parent and the impact thereof on the child’s needs and desires; (c) the ability of the parent to communicate with the child and the parent’s insight into, understanding of and sensitivity to the child’s feelings; (d) the capacity and disposition of the parent to give the child the guidance which he requires; (e) the ability of the parent to provide for the basic physical needs of the child, the so-called ‘creature comforts’, such as food, clothing, housing and other material needs – generally speaking, the provision of economic security; (f) the ability of the parent to provide for the educational wellbeing and security of the child, both religious and sequala; (g) the ability of the parent to provide for the child’s emotional, psychological, cultural and environmental development, (h) the mental and physical health and moral fitness of the parent; (i) the stability or otherwise of the child’s existing environment, having regard to the desirability of maintaining the status quo; (j) the desirability or otherwise of keeping siblings together; (k) the child’s preference, if the court is satisfied that in the particular circumstances the child’s preference should be taken into consideration; (l) the desirability or otherwise of applying the doctrine of same sex matching, particularly here, where a boy of 12 (and Rowan is almost 12) should be placed in custody of his father; and (m) any other factor which is relevant to the particular case with which the court is concerned.”

Section 28(2) of the Constitution of the Republic of South Africa Act, 1996 provides that:

“A child’s best interests are of paramount importance in every matter concerning the child.” In F v F (supra), which dealt with an application by the custodian mother to relocate with the minor child to the United Kingdom, their “best interests of the child” standard was restated. The application, on appeal, was dismissed. In addition, section 7 of the new Children’s Act 38 of 2005 (the Children’s Act) stipulates certain factors to be taken into account when the best interests of a child is considered. Section 9 of the Children’s Act provides as follows:

17 “In all matters concerning the care, protection and well-being of a child the standard that a child’s best interest is of paramount importance, must be applied.”

[26]

The summary of Becker’s report, dated 21 April 2007, is attached to

the founding papers. She assessed the applicant during a comprehensive psychological assessment on 22 March 2007 followed by four hours of interviewing on 23 March 2007 and 27 March 2007 respectively. According to Becker, as a temporary situation (pending finalisation of a divorce), the children should remain in the matrimonial home and for the applicant to return thereto and care for the children on a daily basis, with generous access to the respondent. However, she suggests that the applicant and the respondent should not live in the same home while the divorce is pending unless they can mediate a stable way to share without further fights. On a rather very important and controversial aspect of the feud between the parties, Becker concludes as follows:

“It is my carefully considered opinion that Mrs

Blumenow is neither a physical danger to herself nor the children.

A

psychiatrist (Dr Leon Fine) whom she previously consulted, when she voluntarily had herself hospitalised at Riverfield Lodge for depression, also stated that he did not consider her to be a suicidal personality/or to be potentially suicidal at that stage (2005).” Becker’s report, without the benefit of

the

respondent’s

input,

for

reasons mentioned

above,

however

acknowledges, through the applicant, that the respondent has been equally an involved parent with the children. The children need regular contact with him.

Becker also contributed to the compilation of the Family Advocate’s

report, with which I deal instantly.

18 [27]

In terms of this Court’s order of 8 November 2007, the Family Advocate

has, in the limited time, submitted a report dated 20 November 2007. This report was compiled with the assistance of M E Kriek, a Family Counsellor who has provided a fairly in-depth report notwithstanding the time-constraints. The Family Advocate was also assisted by Becker, as stated earlier. The Family Advocate expresses the view that: “It is evident that a lengthy process of psychological evaluation is destined to project the resolution of this inherently urgent matter into the distant future, which is not in the best interests of the minors concerned. In this regard, I humbly refer the Court to: Fraser v Naude and Others 1999 (1) SA (CC) 1, in which Chaskalson P held that: ‘The continued uncertainty as to the status and placing of a child is not in the child’s best interests and is not in the interests of justice.’” In the report, the respondent confirms that he allowed the applicant to see the children under his supervision for a short period at a time. When the children arrived with their mother at the interview, the Family Advocate observed that: “Caleigh started crying and clearly indicated that she ‘wants to go her mommy’”. Both the children were very excited to see the applicant. Furthermore, the Family Advocate’s report confirms the finding of Becker that the applicant is neither a physical danger to herself nor to the children. Although both the minor children indicated that they love both their parents, the Family Advocate remarks that:

“During the interview both of them

indicated that they “want to go back to mommy””. The conclusion of the Family Advocate is that, on the overwhelming evidence, the applicant is neither a danger to herself or to the minor children, and the children should be

19 returned to their mother’s care, subject to the respondent’s rights of reasonable access.

[28]

In terms of the settlement agreement, the parties agreed to the above

report and to be bound by the recommendations thereof. It is unnecessary for the present purposes to debate the issue whether such agreement is contra bonos mores. It was never proffered by the respondent as an argument. The only reason why the respondent is now challenging the reports is merely because the recommendations therein contained are against him.

The

reports are clearly based on what is in the best interests of the children which is coupled with the children’s wishes to be in the custody of their mother, young as they are. There is indeed authority for the proposition that this Court, in proper circumstances, may consider the wishes and desires of the minor children. In addition, the reports are compiled by independent professionals. There is, in my view, plainly no valid reason at all not to accept the reports especially in order to bring some form of stability and certainty in the status of the children. The submission on behalf of the respondent that the Family Advocate’s report is superficial, and not in accordance with this Court’s order of 8 November 2007, is without merit.

The Family Advocate also

recommends (as does Dr R Duchen who assessed the respondent), and Becker, that it is important that the same psychologist continues to assess both parents and the minor children. I intend referring this matter back to the Family Advocate for such purpose in order to assist the court further during the divorce action.

Both parties, especially the respondent, will be well

advised to cooperate in this regard. It will also be essential for the respondent

20 to submit himself to Becker in order to allow her to prepare a comprehensive psychological report and recommendations in this matter.

[29]

In my view, the above reports, limited as they are in certain respects,

put an end to the respondent’s various allegations in his answering affidavit. In particular, his main allegation and bone of contention that the applicant is a danger to herself and the minor children and as a reason for removing the children, has proved to be unfounded and without substance. This calls into question and casts serious doubt on the circumstances in which he secured two interim protection orders against the applicant. He must have misled the authorities, or misrepresented the true facts to them. It is clear that during the second interim protection order application, he covered up the vicious assault he inflicted on the applicant. As a result, the authorities, in particular the SAPS, were simply reluctant to come to the assistance of the applicant in spite of her clearly visible and fresh injuries. It boggles the mind how she was refused a protection order against the respondent. Indeed, in his answering affidavit, he fails on numerous occasions to pertinently deal with serious and various allegations of the applicant. He removed the minor children from the matrimonial home in a cruel and secretive manner. Thereafter, he not only refused to inform the applicant as to the whereabouts of the children, until much later, but he also continuously denied her access to them, unless on his terms, as is shown by the Family Advocate’s report.

This was plainly in

defiance of this Court’s order of 13 March 2007 (Annexure “CB2”) and the court order of 8 November 2007. His reliance on the interim protection order

21 was misguided.

In the process, he traumatised and frustrated both the

children and the applicant.

[30]

I conclude that, viewed cumulatively and objectively, the version of the

respondent as to the relevant events in this matter is far from impressive and reliable.

The applicant, a mere housewife, committed to the care of the

children, is more reliable. It will be in the best interests of the minor children for their custody to be awarded to her pendente lite. She has indeed made out a cogent case for most of the interim relief claimed in the Notice of Motion. It will also be prudent to set aside the interim protection orders in order to remove the dark cloud hanging over the future and well-being of the minor children.

[31]

As far as costs are concerned, I have been urged, very passionately

too, by applicant’s counsel to award costs on a punitive scale on the basis of the respondent’s unbecoming conduct described above. On the other hand, counsel for the respondent argued that a costs order in the cause or no order as to costs, would be appropriate. The appellant has achieved substantial success in a matter hugely important to her and the minor children. She merely wanted to have custody and access to the children. The report of the Family Advocate and opinions of other professionals have now vindicated her assertions. The applicant is not gainfully employed. She is entitled to her costs.

However, I am not convinced that such costs deserve to be on a

punitive scale.

22 [32]

In the result:

32.1

I grant an order in terms of prayers 2, 3, 4, 5, 6, 8, 10 and 11 of the Notice of Motion dated 5 November 2007.

The interim

protection order issued against the applicant under Case No. 263/2007 on 21 February 2007 is also set aside.

32.2

The Family Advocate is requested to continue to conduct an enquiry into the circumstances regarding the minor children and to appoint a third party (preferably Becker) to continue with the psychological assessment as indicated in this judgment in order to assist the court hearing the divorce action in due course.

32.3

The respondent shall have access to the minor children at all reasonable times including having the children every alternate weekend from Friday 18h00 to Sunday 18h00 and other access as may be agreed between the parties.

32.4

The respondent shall pay the costs of this application on the party and party scale.

_________________________ D S S MOSHIDI JUDGE OF THE HIGH COURT

23 COUNSEL FOR THE APPLICANT

ADV SNOYMAN

INSTRUCTED BY

KAREN SCHAFER ATTORNEYS

COUNSEL FOR THE RESPONDENT

ADV A LOUW

INSTRUCTED BY

MALAN KRUGER ATTORNEYS

DATE OF HEARING

20 NOVEMBER 2007

DATE OF JUDGMENT

18 DECEMBER 2007