Welgemoed and Another v Potgieter and Others (88660/2019) [2020] ZAGPPHC 108 (17 March 2020)

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

CASE NUMBER: 88660/2019

17/3/2020

In the matter between:

CASPER JOHAN WELGEMOED

First Applicant

BIANCA WELGEMOED

Second Applicant

and

SCHALK JACOBUS POTGIETER

First Respondent

HELEN ISOBEL POTGIETER

Second Respondent

LESEGO VILIKAZI N.O.

(in her capacity as nominee for ABSA TRUST Ltd

the duly appointed trustee of the Charles James

Welgemoed Testamentary Trust)

Third Respondent

ABSA TRUST LIMITED N.O.

(in their capacity as the appointed executor by their

Nominee Mr Boy Visser)

Fourth Respondent

ACA EMPLOYEE BENEFITS (PTY) LTD

Fifth Respondent

MASTER OF THE HIGH COURT

Sixth Respondent

JUDGMENT

AVVAKOUMIDES, AJ

INTRODUCTION:

1. This application was brought in the urgent court on 10 December 2019. In the exercise of discretion and, given the nature and circumstances of this case, I held that it is indeed urgent and heard full argument on behalf of the Applicants and First and Second Respondents (“the parties”).

2. The judgment was reserved so I could consider, given the impasse between the parties, what would be in the best interests of the minor children involved. Circumstances, along with a brief illness prevented me from delivering the judgment earlier.

3. The application consists of a Part A and Part B, the former seeking the appointment of a curator ad litem for the two minor children, and the latter seeking adjudication of the main application, once a curator’s report has been filed, and the main application is ripe for hearing.

4. The Constitution, more particularly section 28 thereof, provides that all minor children are entitled to be represented in litigation which affects them, if substantial injustice would otherwise result.

5. In L.P v J.C.P. Case Number 34959/2015, dated 13 May 2016, Ratshibvumo AJ, aptly phrased the legal position and framework as follows:

“The applicable law:” The Constitution of the Republic of South Africa provides that every child has a right to have a legal practitioner assigned to him or her by the state, and at state expense, in civil proceedings affecting the child, if substantial injustice would otherwise result. Legislation was enacted to give effect to this right in the Children’s Act 38 of 2005 (the Children’s Act), which provides,

‘every child that is of such an age, maturity and stage of development as to be able to participate in any matter concerning that child has the right to participate in an appropriate way and views expressed by the child must be given due consideration.’

This right was confirmed by the Constitutional Court in J v National Director of Public Prosecutions and another (Childline South Africa and others as amici curiae) when it emphasised the protection of this right. it appears as though this right found its way into our domestic law from Article 12 of the Convention on the Rights of the Child, which obliges State parties to ensure that a child who is capable of forming his or her own views enjoys the right to express those views in matters affecting him or her and that those views should be given due weight.

In Centre for Child Law v The Governing Body of the Hoërskool Fochville the Supreme Court of Appeal held that in all matters concerning children – including any litigation concerning them – their best interests are of paramount importance. Section 28(2) (of the Constitution) must be interpreted so as to promote the foundational values of human dignity, equality and freedom. The reach of section 28(2) extends beyond those rights enumerated in section 28(1): it creates a right that is independent of the other rights specified in section 28(1). Section 28(2), read with section 28(1) establishes a set of rights that courts are obliged to enforce.

Sec 7 of the Children’s Act sets inter alia the following as the standard for the best interests of the child:

“Whenever a provision of this Act requires the best interests of the child standard to be applied, the following factors must be taken into consideration where relevant, namely-

(a) the nature of the personal relationship between the child and the parents, or any specific parent; and […]; the attitude of the parents, or any specific parent, towards – and the exercise of parental responsibilities and rights in respect of the child […]

(d) the likely effect on the child of any change in the child’s circumstances, including the likely effect on the child of any

separation from-

(i) both or either of the parents; or

(ii) any brother or sister or other child, or any other care-giver or person, with whom the child has been living;

(e) the practical difficulty and expense of a child having contact with the parents, or my specific parent, and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with the parents, or any specific parent, on a regular basis;

(f) the need for the child – to maintain a connection with his or her family, extended family, culture or tradition;

(g) the child’s – age, maturity and stage of development […]

(h) the child’s physical and emotional security and his or her intellectual, emotional, social and cultural development […]

(k) the need for a child to be brought up within a stable family environment and, where this is not possible, in an environment resembling as closely as possible a caring family environment;

(l) the need to protect the child from any physical or psychological harm…”

6. The facts giving rise to this application are the following:

6.1 The First Applicant’s brother was married to the Respondents’ daughter. She died of illness in 2017;

6.2 The First Applicant’s brother was married to the Respondents’ daughter. He too died of illness in 2019;

6.3 They left behind two minor children who are currently residing with the Respondents, i.e. their grandparents;

6.4 The Respondents were nominated as guardians of the minor children in terms of the will of the First Applicant’s brother and if they are unable or unwilling to assume this position, the First Applicant is appointed as guardian. The will has also afforded the Respondents the right of habitation over the former home of the First Applicant’s brother.

7. The Applicants allege that the Respondents are unable to support themselves and are at an advanced age. The Respondents were

previously, and after the death of their daughter employed by the First Applicant’s brother to look after the minor children.

This is not disputed by the Respondents. The Applicants argued that it is unclear whether the trust, the Third Respondent, is in fact being administered for the benefit of the minor children, or whether the Respondents and their other daughter who resides with them, are benefitting from the trust funds.

8. The Respondents do not deny that they were employed by the First Applicant’s brother to look after the children. It must follow that this arrangement fell away when he passed away. On their own version through, as far as their submissions are concerned, they have no other income. The Applicants are concerned about the finances of the Third Respondent, in the light of there not being any other income to the Respondents. The poor health of the First Respondent is also of concern to the Applicants. Until the policy which was taken out by the First Applicant had paid out the benefits for which it was secured, the Second Respondent did not have a separate bank account of her own.

9. The relationship between the parties became strained when the Applicants questioned and expressed concern about the trust funds. This brought about a change in the Respondents’ attitude towards the Applicants having contact with the minor children.

10. Mediation was not successful neither the involvement of legal practitioners An agreement arrived at by way of mediation to the effect that the First Applicant would be appointed as a third guardian and recorded contact rights was reneged on by the Respondents. The Respondents deny the agreement. The sleeping arrangements of the female child are of concern to the Applicants. This information came from the child herself conveyed to the Applicants.

11. As a result of the differences between the parties, brought about by the uncertainty in respect of the expenditure of the trust funds and the finances set aside for the children, is exacerbated by the ensuing differences insofar as the contact rights are concerned. The First Applicant’s mother and sister also experience difficulty to see the children.

12. During October 2019 a meeting between the parties was facilitated by a mediator. The Applicants allege that it was then agreed that contact rights with the Applicants and the First Applicant’s family would be in the best interests of the children. Furthermore it was agreed that the First Applicant would be appointed as a third guardian. The First Applicant had prepared an application previously in this regard but the Respondents rejected the idea after they had ostensibly agreed thereto with the assistance of the mediator. The Respondents again rejected the idea and frustrated contact rights to the Applicants. This is borne out from emails annexed to the Applicants’ founding affidavit.

13. The Respondents allege that it is unnecessary to appoint a curator ad litem to investigate the situation and that the family advocate or designated social worker is able to conduct such investigation because it would be less costly. This submission is odd under the circumstances. To the extent necessary the First Applicant

tendered to pay any costs to have all issues ventilated with finality.

14. In my view, despite denials by the Respondents of allegations by the Applicants regarding contact rights and the alleged mismanagement of trust monies, an investigation is warranted. The main application cannot be ventilated without an investigation by a person competent to do so and on behalf of the minor children. The Respondents go as far to suggest an investigation to be done by the family advocate. The curator ad litem, if appointed, may suggest additional investigations by other experts regarding the minor children and their circumstances.

15. Consequently I am persuaded that the appointment of a curator ad litem for the children is necessary and warranted. I make the following order:

15.1 Condonation is hereby granted for any non-compliance with the Uniform Rules of the above Honourable Court, and specifically the time limits as stipulated in Rule 6(12) thereof.

15.2 Advocate L. C. Haupt SC (and if she is unwilling or unable to accept the appointment, then a suitable Advocate with similar experience,

nominated by Advocate S. D. Wagener SC) is hereby appointed as curator ad litem for the two minor children Megan Welgemoed, born on 12 June 2009, and Reinhardt Welgemoed, born on 7 May 2015.

15.3 The appointed curator ad litem shall have the following powers and duties:

15.3.1 To investigate the best interest of the minor children concerned, specifically the Parental Responsibilities and Rights to be exercised

over them by all parties concerned, and report thereon to the above Honourable Court.

15.3.2 To represent the minor children in all matters of a legal nature including but not limited to litigation.

15.3.3 The curator shall be entitled to, in the best interest of the minor children, in the interim and pending final adjudication of this

matter, issue directives pertaining to the parental responsibilities and rights to be exercised over the minor children.

15.3.4 To represent the best interest of the minor children by advancing all arguments for and on behalf of the minor children relevant to this matter as well as related matters.

15.3.5 To enquire or consult with whatever person necessary in the completion of his/her mandate.

15.3.6 To refer the parties, or other relative persons to experts, for further and/or other assessments or therapy, where the curator might find it necessary.

15.3.7 To bring out a report that contains all the facts and circumstances and make a recommendation therein regarding the Parental Responsibilities

and Rights to be exercised over the minor children.

15.3.8 Pending the investigation, and subject to any other directive to be issued in this regard by the curator ad litem, the Applicants shall have the following rights of contact to the minor children:

15.3.8.1 Contact every alternative weekend from Friday 17h00 until Sunday 18h00.

15.3.8.2 Contact one afternoon every week as arranged between the parties, subject to school activities of the minor children.

15.3.8.3 Contact for half of all school holidays.

15.3.8.4 Reasonable telephonic contact.

15.4 Part B of the notice of motion is to be postponed sine die and the Applicants and the Respondents are given leave to supplement their papers, for purposes of final adjudication of the application.

15.5 The costs of Part A are reserved for adjudication together with Part B.

15.6 The fees of the curator to be paid by the Third Respondent. The curator ad litem shall be entitled to make any recommendation in respect such costs to the court hearing Part B of the application.

G.T. AVVAKOUMIDES

ACTING JUDGE OF THE HIGH COURT

GAUTENG DIVISION, PRETORIA

Representation for Applicants:

Adv. R. Ferreira

Instructed by:

Shayne White Attorneys

Representation for First and Second

Respondents:

Adv. F. Geyer

Instructed by:

VZLR Attorneys