Schneider NO and Others v AA and Another

• Jurisdiction: South Africa
• Judge: Davis J
• Judgment Date: 08 January 2010
• Citation: 2010 (5) SA 203 (WCC)
• Docket Number: 8675/09
• Hearing Date: 31 August 2009
• Counsel: PK Weyer SC (with JL McCurdie) for the applicants. EL Theron and A Botha for the first respondent. No appearance for the second respondent.
• Court: Western Cape High Court, Cape Town

Davis J:

Before I deliver this judgment, I want to state for the record that I H received this morning (although I accept the document was generated on 4 January and a covering letter of 6 January) a notice from first respondent in terms of rule 34(2) of the Rules of the High Court that first respondent has unconditionally accepted to enroll the two children, S and D, at one of the educational institutions referred to in the recommendations of Dr W.

I This notice obviously came long after I had prepared the judgment. It does cause me to alter the order that I was proposing to make. As I am working on the assumption that this is an unconditional offer, I want to make it absolutely clear that the order that will follow is thus based on this notice and means that first respondent has accepted the children J must proceed to school.

Davis J

It does, however, appear to me to be appropriate to set out the reasons A for the order that I was going to give, because there are very serious implications in relation to this matter which require full examination. In the course of the judgment I will indicate what order I would have granted, were it not for this offer which came so late in the day. Given this introduction, I move to the substance of the judgment. B

This matter was initiated by way of an application by the applicants in terms of the following notice of motion:

'1.

That Advocate Andre Heese, or such other person as this Honourable Court may deem appropriate, be appointed as curator ad litem to the minor children, [S] and [D], and to prepare a report for this C Honourable Court in which recommendations are made regarding:

1.1.

The most appropriate schooling for the children both now and in respect of their high schooling.

1.2.

Their reasonable maintenance, including the reasonable accommodation required. D

1.3.

Any other matter affecting their best interests that she may deem necessary and appropriate in the context of her mandate.

2.

That pending the report of Advocate Heese, the first respondent is ordered not to remove the children from their current school and not to commence home-schooling.' E

The background to this application can be briefly summarised as follows. First respondent is the biological mother of two children, born out of wedlock on 22 December 1998, while she was in a relationship with the deceased, the late JS. The first applicant has approached this court as executor of the estate of the late JS and as a nominated trustee of the will F trust to be formed pursuant to the deceased's last will and testament. He also claims to act in his personal capacity as an interested party in terms of the provisions of both the Children's Act, 2005, and the Constitution of the Republic of South Africa, 1996 (the Constitution) in regard to the two minor children, twins, D and S (the children). The children are the G sole beneficiaries in terms of the last will and testament of the deceased.

The third applicant, IS, the mother of the late JS and the paternal grandmother of the children, has joined this application in a representative capacity as a nominated trustee of the will trust to be formed, and in her personal capacity, again in terms of the Children's Act and the Constitution. H

First applicant sets out in his affidavit the basis of this background. He avers that the deceased, whom he knew personally as a friend and a client for more than 20 years, placed considerable store on education, holding a master's degree from the University of Cape Town as a qualified town I planner. At the age of 46, while holidaying in Madagascar on 6 October 2008, he died suddenly and unexpectedly. According to first applicant, at the time of the birth of the children the deceased and respondent had lived together, and continued to live together for a number of months after the birth of the children, whereafter respondent moved out with the children, first to Wynberg, and subsequently, some two years later, to H, J

Davis J

A where she lived for approximately seven years. Accordingly, it appears that the children spent most of their lives in the H area, but respondent moved to Durbanville in January 2008, two days before the start of the term.

According to first applicant, respondent moved to this location owing to B a lack of employment prospects in H and, further, respondent's disagreement with the school which the children had attended, being the M school in Durbanville. According to first applicant, first respondent announced that she then wished to 'home-school' the children, relocated back to H, whereupon the children were removed from the M school.

C First applicant avers that both he and third applicant were extremely concerned about this decision to home-school the children and uproot them from their current schooling and environment. First applicant avers that shortly before the deceased's death in the middle of 2008, he insisted on a full evaluation by educational psychologists of both children, since it appeared that they were encountering certain learning D difficulties.

A report was prepared by an educational psychologist, M, on 12 December 2008, in which mention was made of certain problems of a scholastic nature being experienced by at least one of the children. The psychologist's E report indicated that while home-schooling might have been 'an option' for S, it was not recommended for D. The report noted that D was suited to a small teacher/pupil ratio environment and that he needed not to be moved to an alternative school placement, that he was progressing pleasingly scholastically, and that 'he seemed to be content F in his school and home environment'.

When the application was initially launched, first applicant in his affidavit noted that there was a discrepancy between what the respondent claimed and what was reasonably required for the children's needs, and it was thus important that the matter be resolved by way of appointment G of a curator ad litem. He then proceeds:

'It was necessary for me to work prudently both with the executor and trustee. I believe that as trustee and executor it is essential to establish with the inception of fair and reasonable basis upon which to move forward in the best interests of the children, without attack/criticism or fear of recriminations. I believe that an independent investigation by a H curator who may choose, if deemed necessary, to obtain expert opinion from an appropriately qualified educational psychologist and/or clinical psychologist as to what is in the best interest of the children, would be in the best interests of the administration of the estate and the children.'

First respondent vigorously opposed this application, both on the I grounds of the locus standi of applicants, and on the basis that it constituted an unfair interference with her parental responsibilities which she had reasonably undertaken over the lifetime of the children. In her answering affidavit she states:

'If the applicant knew anything about home-schooling, taking the children's specific needs into consideration, enquired about it, and J shown reasonable interest, they would not have been concerned. There

Davis J

is nothing unstable about home-schooling, and from the children's A point of view they will be moving back into a stable environment in [H]. I wish to refer the court to the affidavit of [O], where he deals more specifically with these aspects.'

In this reporting affidavit one O, who is the executive officer of the P Trust, described by him as a trust set up for the legal defence of home B education, purports to be an expert in home education. He then provides a detailed report of home education and its many merits. He then states as follows:

'None of the applicant's stated concerns about home education are supported by any empirical observations recorded in the literature by C the specific home education program provided to his children or by the educational environment in which they are situated. Conversely it cannot be shown and not [sic] responsible teacher would claim that any of the assumed benefits to be derived from attendance at the best schools proposed to these children will be reaped by both or either of these children. It is common knowledge that there are children in the best of schools for whom that school is not the best school.' D

O then makes certain recommendations;

'I find no reason to advise first respondent to change her choice of home education for these children or, at this stage, to change any aspect of the E program offered to them. In my opinion respondent can best serve the educational interest of her children by continuing the home education in the present manner, adjusting for the development needs of the children as necessary and obtaining specialist services where possible, necessary and affordable. Assessment of the children's progress by an independent educational psychologist after one year of home education will assist her in deciding a further course of action. Such assessment F should be repeated at least once every three years thereafter. . . . If, on the contrary, involvement of their late father's relatives in the children's education remains negative and destructive as the present evidence suggests, consideration should be given to asking a court to limit their access to the children to an absolute minimum or to supervised access. Such restriction should be determined and implemented and G monitored with the assistance of a forensic psychologist. It should be maintained until the children are less vulnerable to negative labelling of the kind of education their mother has chosen for them and to denigration of or refusal to recognise their short and long term achievements and progress. This could take several years.'

On 31 August 2009 the parties agreed to deal with the...