IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT, CAPE TOWN)
CASE NUMBER: 8675/2009

DATE: 28 FEBRUARY 2011

In the matter between:

ISABEL SHAPIRO N.O						 3rd Applicant

and

JUDGMENT 
Application for Leave to Appeal

In other words, some nine months elapsed before the first respondent took any further steps in respect of the application for leave to appeal No explanation has been provided nor has an application for condonation been received insofar as this issue is concerned. In itself, this should be a ground for dismissing the application, particularly when the matter in dispute concerns children, their schooling and what is in their best interests. Had this matter been so critical to the interests of the children, it could have been expected that an appeal be prosecuted expeditiously and not to have allowed at least nine months to have elapsed before any activity took place. This means, in effect, that were an appeal to be heard, that almost two years would have elapsed from the time that the judgment was given until the matter was settled on appeal, in itself indicative of a problem with regard to the exact dispute confronted by this court.

However, I would prefer not to deal with the matter on this basis, but to canvass the merits of the application for leave to appeal. Let me make clear at the outset what this case is not about. This case is not about whether the first respondent is a good parent. I have no basis to conclude, on any other premise, that first respondent is a good and caring parent who worries anxiously about her children. Thus this case, in no way, should be interpreted as being condemnatory of the conduct of first respondent and, to the extent, that it could be read that way, this would be incorrect.

This case is not about the conduct of the legal representatives who appeared on behalf of the respondents (the applicants in his application for leave to appeal). Much has been said about this issue and I prefer to refrain from further comment. The case is only about what is in the best interests of two small children. Occasionally, in the fury and fire of litigation, this simple and yet agonising question is lost as being the focal point of this dispute. To the extent that the principal judgment, against which leave to appeal is sought, raised questions about the role of experts and the professional responsibility of legal representatives, these are ancillary to the primary inquiry, what, in essence, is in the best interests of two small children, whose case came before this court.

Unfortunately, because of one of the issues with regard to the application for leave to appeal, it will be necessary to say something about the conduct of the matter. However, it is important to evaluate this case in the context of the child centred approach, which is clearly the cornerstone of jurisprudence dealing with children in the constitutional democracy of our country.

The application for leave to appeal is, in many ways, curious, because the key issue was fought out with such degree of intensity, has now disappeared, that is whether the children should be "home schooled" It is important to emphasise that all of the other issues that have been raised today, were ancillary to the focal point of the case, the evidence that was brought before this court, and the central decision made by this court.

A further point that needs to be made is the following. The day before judgment was to be delivered, that is on 8 January 2010, I received a notice filed in terms of Rule 34(2) of the rules of the High Court (the notice dated 4 January 2010), in which the first respondent made a written offer to settle the application. It is thus necessary to make one further comment. That application was signed by the attorneys for the first respondent, Badenhorst Schnetler. It was delivered to the attorneys for the applicants, Mr Schneider and a copy was provided to the court. I accept readily that the counsel who then represented the respondents, Mr Theron, was unaware of this notice and that his advice was not sought with regard thereto. Accordingly that he bears no responsibility for the formulation of this notice. But there can be no question that the notice was provided to the court, by first respondent, through her attorney. Presumably therefore it was drafted by her attorney in the manner in which these matters are so drafted.

But that is not the only obstacle in the face of the various grounds for leave to appeal. Let me deal with them, therefore, in order. The first is that the court ordered that the fourth applicant be entitled to two weekend days per month access to the minor children. That, of course, was contained in the earlier order by agreement of 31 August 2009 and followed the
Rule 34(2) notice. There did not seem to be any basis, therefore, that no contact should take place in the manner ordered by the court. The only issue is whether the words "reasonable periods", as may be agreed between Ms Shapiro and the first respondent from time to time were sufficiently carefully drafted.

The next ground was the provision "for so long as it may be reasonable required and agreed" a third party will accompany the children to their visits to third applicant. This follows almost exactly the Rule 34(2) notice.   On first respondent's own version, the contact between fourth applicant and the children was to take place under supervision. Given that it was common cause that the contact should be supervised, no evidence was required in respect of the reasons as to why a third party should accompany the children, or whether first respondent had been obstructive in respect of contact between the fourth applicant and the children. There was, however, correspondence placed before the court with regard to the difficulties which had taken place in respect to contact. In the August 2009 order, even though it was an interim order, there was provision for Ms Ester Aspeling to accompany the children to their visits with Ms Shapiro The only issue in dispute, therefore, appears who was to be the supervising party, hardly a point that could not have been sorted out by the parties or which needs to detain a court on appeal.

The next ground for application for leave to appeal is the order that the siblings of the deceased and Ms Shapiro shall have reasonable telephonic and electronic contact with the minor children at all reasonable times. This, of course, was not contained in the Rule 34(2) notice. But in the August 2009 order, the parties had agreed "the siblings of the deceased and Ms Shapiro shall have reasonable telephonic and electronic contact with the minor children at all reasonable times". It was clear, therefore, that the parties accepted that it was in the interests of the children that such contact should take place. Indeed, as noted in the principal judgment, respondents' own expert, Mr Van Oostrum, made recommendations in respect of contact to be limited to an absolute minimum, and to be supervised, in the event of applicants not supporting the children's home education. He thus proposed supervised and monitored contact. There is no evidence to suggest that such an order should, therefore, not have been included in the order granted by the court, or that any of the parties regarded it as not in the best interests of the children for such a provision not to have been included in the principal order.

The next ground of appeal is, in the event of deceased's siblings or their immediate families wish to have contact with the children, this should be arranged directly with the respondent, shall attempt to facilitate rather than obstruct such reasonable conduct. This particular ground can be dealt with in a similar to the previous ground. Nothing was further proposed in the Rule 34(2) notice, but in the August 2009 order, the parties agreed that in the event of the deceased's siblings or their immediate families wishing to have contact with the children, this should be arranged directly with the respondent. In the final order, the words "who shall attempt to facilitate" were inserted. The issue of contact and the difficulty which was raised in respect of such contact between the children and the paternal family, was canvassed in correspondence between the parties' respective attorneys of record and by the first respondent in an affidavit.

It certainly did not seem, in the light of all this evidence, that it would have been advisable for this court, in its discretion, not to have made such a provision. No suggestion was raised that it is not in the best interests of the children for such a provision not to have been included.

The penultimate ground of leave to appeal is that the future educational needs of the minor children shall be monitored by Dr Worrall up to Grade 7 and what further schooling should be in their best interest moving to secondary education. The Rule 34(2) included a provision that:

Continue with the education and manner consistent with the recommendations of Dr Worrall in the best interests of the children."

When Mr Badenhorst Schnetler deposed to an affidavit on 9 December 2009, he failed to address the concerns raised by the court in respect of the letter of instruction to Dr Kockett from Mr Van Oostrum, in which reference is made to him. He further failed to address the concern raised by the court as to the basis upon which Mr Van Oostrum deposed an affidavit purportedly as an independent expert, where, to his knowledge, the Pestalozzi Trust had funded first respondent's litigation. In other words, an affidavit was sent to Mr Badenhorst Schnetler in which it was clear that their expert had been "schooled". He, therefore, since he does not deny it, must have had a copy of the email.