Muller v Gorenewald (2624/11) [2011] ZAECGHC 50 (22 September 2011)

Muller v Gorenewald (2624/11) [2011] ZAECGHC 50 (22 September 2011)

The court held that while it possesses inherent jurisdiction to order a party to submit to a medical or psychological examination, such power should be exercised with caution and only when justice demands it. In this case, the respondent has not yet filed a plea and the family advocate has indicated he will abide by the court's decision. The court found that the trial court, at the appropriate time, may order reports from independent experts or the family advocate under section 29 of the Children's Act. The applicant's request to compel the respondent to submit to psychological examinations by his chosen experts was premature and not justified at this stage. The interests of justice and...

Citation
[2011] ZAECGHC 50
Parties
Applicant: Dean Lynton Muller; Respondent: Adele Groenewald
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
22 September 2011
Case Number
2624/11
Procedural Posture
Urgent Application / Application for Order Compelling Psychological Examination Prior to Trial
Outcome
Application dismissed.
Judges
Smith
Legal Topics
Custody Variation, Psychological Examination, Children's Act Section 29, Rule 36 Application
Family and Children Civil Procedure Custody Variation Psychological Examination Children's Act Section 29 Rule 36 Application

Case Brief

Summary, issues, holding and outcome

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Parties

Dean Lynton Muller

Applicant

Adele Groenewald

Respondent

Procedural Posture

Urgent Application / Application for Order Compelling Psychological Examination Prior to Trial

Legal Issues

  1. 1 Whether the court should compel the respondent to submit to psychological examinations by the applicant's chosen experts prior to trial.
  2. 2 Whether Rule 36(2) of the Uniform Rules of Court applies to psychological examinations in custody disputes.
  3. 3 Whether the interests of justice require the respondent to be examined by the applicant's experts rather than relying on the family advocate.

Ratio Decidendi

The court held that while it possesses inherent jurisdiction to order a party to submit to a medical or psychological examination, such power should be exercised with caution and only when justice demands it. In this case, the respondent has not yet filed a plea and the family advocate has indicated he will abide by the court's decision. The court found that the trial court, at the appropriate time, may order reports from independent experts or the family advocate under section 29 of the Children's Act. The applicant's request to compel the respondent to submit to psychological examinations by his chosen experts was premature and not justified at this stage. The interests of justice and...

Court Disposition

Application dismissed.

Orders

  • The application to compel the respondent to submit to psychological examinations by Dr Heather Rauch and Mr Ian Meyer is dismissed.
  • No order as to costs.