P v P

• Jurisdiction: South Africa
• Court: Supreme Court of Appeal
• Judge: Farlam JA, Cameron JA, Van Heerden JA, Hancke AJA and Theron AJA
• Judgment Date: 30 March 2007
• Citation: 2007 (5) SA 94 (SCA)
• Hearing Date: 22 March 2007
• Docket Number: 215/06
• Counsel: E P van Rensburg for the appellant. A Beyleveld (with R B Laher) for the respondent.

Van Heerden JA:

[1] The main issue in this appeal is the custody of two minor children, E and J, now aged 15 and 11 years, respectively.

[2] The appellant, Dr P, is the father of the children and the respondent, E Mrs P, is their mother. The parties were divorced on 26 October 2004 by order of the Port Elizabeth High Court (Chetty J) and custody of the children was awarded to Mrs P, subject to reasonable access by Dr P as specified in the Court order. Dr P was also ordered to pay maintenance in respect of the children, as well as rehabilitative maintenance for Mrs P F in the amount of R4 650 per month for 12 months.

[3] Chetty J refused Dr P's application for leave to appeal against the custody order and the costs order made against him, but this Court subsequently granted leave to appeal to the Full Court of the Eastern Cape Provincial Division. On 13 January 2006, the Full Court (Erasmus J, G with whom Maqubela AJ and Matthee AJ concurred) dismissed the appeal with costs. Dr P now appeals further with the special leave of this Court. The appeal is directed against the custody order, the order for rehabilitative maintenance in favour of Mrs P and the costs orders granted against Dr P.

[4] H Dr P instituted divorce proceedings in February 2003, claiming custody of the two children, then aged 10 years and 11 months and 7 years and 8 months, respectively. Mrs P opposed the divorce action and counterclaimed for (inter alia) custody of the children.

[5] At the instance of Dr P, the trial Court directed the family advocate I (Ms René Claassen) to conduct an enquiry in terms of s 4(1) of the Mediation in Certain Divorce Matters Act 24 of 1987. She appointed Ms Helena Retief, a social worker and family counsellor, to conduct an investigation into the interests of the children as regards custody and access, and also engaged the services of Dr Estelle de Wit, a clinical J psychologist, to undertake a psychological assessment of the children. In

Van Heerden JA

their written reports and in their testimony during the trial, both Ms Retief A and Dr De Wit recommended that custody of the children be awarded to Dr P, Mrs P to have restricted rights of access. On the basis of these reports, this was also the recommendation made by the family advocate.

[6] At the insistence of Mrs P, a report was also obtained from a second B clinical psychologist, Ms Carol Vogel. In this report Ms Vogel agreed with the recommendations of Dr De Wit and Ms Retief in respect of custody and access. She was thereafter called by Dr P as his first witness during the trial. Like Dr De Wit, Ms Vogel had administered a psychometric test known as the Minnesota Multiphasic Personality C Inventory-2 (MMPI-2) to both parties. Based on the results of these tests, each clinical psychologist diagnosed Mrs P to be suffering from a borderline personality disorder manifesting itself in, amongst other things, impulsivity; a pattern of unstable and intense interpersonal relationships; abuse of prescription drugs; emotional instability and mood swings. D

[7] Dr P also called a psychiatrist, Dr Peter Crafford, to testify on his behalf at the trial. Dr Crafford had treated Mrs P for anxiety and depression over a period of about five months some six years before the trial. He had also diagnosed her as suffering from 'marked borderline E personality traits', with 'generalised personality disorder', 'panic disorder' and 'recurrent major depressive disorder'. According to Dr Crafford, although Mrs P had initially responded well to electro-convulsive therapy, the anti-depressants prescribed for her at that stage did not succeed in keeping her depression at bay. Dr Crafford opined that Mrs P F had serious problems coping with reality and that her insight into her problems was very limited. He was of the view that she did not have the strength of will to persevere with psychiatric treatment, nor was she motivated to undergo individual psychotherapy. He testified that Mrs P's 'generalised anxiety disorder' was a lifelong condition and that, although it could be treated, was not curable. It was characterised by G excessive uncontrollable worry; mood instability; inability to cope with change; the avoidance of stressors and the formation of inappropriately intense and unstable interpersonal relationships. According to Dr Crafford, Mrs P's 'long-term prognosis' was not good.

[8] It is important to note that Dr De Wit and Ms Retief premised their H recommendations to a large extent on their 'factual finding' that the parties' housekeeper, Ms Maria Zama, had been the children's primary caregiver for a number of years preceding the trial. I will return to this aspect in due course. So too, the family advocate accepted as a fact in her report the allegation that Ms Zama, and not Mrs P, was the children's I primary caregiver.

[9] The family advocate also called a third clinical psychologist, Mr Ian Meyer, to testify at the trial. Mr Meyer had been instructed by Mrs P's attorneys during the course of the trial to conduct an investigation and compile a report, focusing in his assessment on the parties' respective J

Van Heerden JA

parental A capacity. In accordance with his instructions, he did not reassess the children for fear of traumatising them by subjecting them to a further distressing psychological process. Mr Meyer was of the view that Dr P showed greater parental capacity than Mrs P and that custody of the children should be awarded to Dr P. His opinion was derived largely from his conclusion that, given her 'ego strength', psychiatric history and B previous style of coping while she was a full-time mother and housewife with considerable domestic support, she might well not be able to cope with the stress of being a single parent and of managing a household, a job and finances.

[10] Chetty J was unimpressed with the various...