THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA
JUDGMENT

CASE NO: 215/06
Reportable
In the matter between
JOHANN FÖLSCHER POTGIETER
Appellant
and
ILSE POTGIETER
Respondent

Coram:
Farlam, Cameron et Van Heerden JJA, Hancke et Theron
AJJA
Heard:
22 March 2007
Delivered:
30 March 2007
Summary:
Divorce – custody of minor children – best interests of
child paramount consideration – factual findings made by
trial court relating to parties’ parental capacity –
approach of appeal court to such factual findings –
expert evidence – principles relevant to evaluation of
Neutral citation: This judgment may be referred to as Potgieter v
Potgieter [2007] SCA 47 (RSA)

VAN HEERDEN JA:

[1] The main issue in this appeal is the custody of two minor children,
Engela and Johann Potgieter, now aged 15 and 11 years, respectively.
[2] The appellant, Dr Potgieter, is the father of the children and the
respondent, Mrs Potgieter, 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 Potgieter, subject to reasonable
access by Dr Potgieter as specified in the court order.  Dr Potgieter was
also ordered to pay maintenance in respect of the children, as well as
rehabilitative maintenance for Mrs Potgieter in the amount of R4650 per
month for 12 months.
[3] Chetty J refused Dr Potgieter’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,
with whom Maqubela AJ and Matthee AJ concurred) dismissed the appeal
with costs.  Dr Potgieter 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 Potgieter and the costs orders
granted against Dr Potgieter.

[4] Dr Potgieter instituted divorce proceedings in February 2003,
claiming custody of the two children, then aged ten years and 11 months
and seven years and eight months, respectively.  Mrs Potgieter opposed the
divorce action and counterclaimed for (inter alia) custody of the children.
[5] At the instance of Dr Potgieter, the trial court directed the family
advocate (Ms René Claassen) to conduct an enquiry in terms of section
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
psychologist, to undertake a psychological assessment of the children.  In
their written reports and in their testimony during the trial, both Ms Retief
and Dr de Wit recommended that custody of the children be awarded to Dr
Potgieter, Mrs Potgieter 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 Potgieter, a report was also obtained from a
second 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 Potgieter as his first

witness during the trial.  Like Dr de Wit, Ms Vogel had administered a
psychometric test known as the Minnesota Multiphasic Personality
Inventory-2 (MMPI-2) to both parties.  Based on the results of these tests,
each clinical psychologist diagnosed Mrs Potgieter 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.
[7] Dr Potgieter also called a psychiatrist, Dr Peter Crafford, to testify
on his behalf at the trial.  Dr Crafford had treated Mrs Potgieter 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
personality traits’, with ‘generalised personality disorder’, ‘panic disorder’
and ‘recurrent major depressive disorder’. According to Dr Crafford,
although Mrs Potgieter 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 Potgieter
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
Potgieter’s ‘generalised anxiety disorder’ was a lifelong condition and that,

although it could be treated, was not curable.  It was characterised by
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 Potgieter’s ‘long-term prognosis’ was not good.
[8] It is important to note that Dr de Wit and Ms Retief premised their
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 Potgieter, was the children’s 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
Potgieter’s attorneys during the course of the trial to conduct an
investigation and compile a report, focussing in his assessment on the
parties’ respective parental 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 Potgieter showed greater parental capacity than Mrs Potgieter

and that custody of the children should be awarded to Dr Potgieter.  His
opinion was derived largely from his conclusion that, given her ‘ego
strength’, psychiatric history and 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 expert witnesses.  He
described Ms Vogel as a ‘poor witness’ who was evasive, unable to answer
questions directly and reluctant to make obvious concessions –
‘The defensive attitude which she displayed towards her report compounded the
problems she experienced under cross-examination and contributed markedly to her
unease in the witness box . . . it became obvious that her recommendation was
inextricably bound to her diagnosis.  She was reluctant to concede that even if the
factual substratum upon which her diagnosis rested was different to that which she
accepted her conclusion could be different . . .Cross-examination soon established the
spurious nature of the allegations which she regarded as fact.  Those allegations
emanated from the [appellant] and those loyal to him which she unreservedly accepted
as factually correct.’
[11] As Erasmus J pointed out in his judgment in the Full Court, it was
put to Ms Vogel in cross-examination that her strenuous attempts to
‘defend’ her position and her unwillingness to make any concessions in

favour of Mrs Potgieter indicated her lack of objectivity. Her answer was as
follows:
'I cannot be neutral, I have decided in my report that Dr Potgieter is the better custodian
and maybe I am being too defensive of my report.  I have written something which took
a long time and [which] I am proud of and I would like to explain why I came to these
findings and I see that they are in line with other people’s findings, so I know that I am
not – it is not just a magical thumbsuck, it is based on as much evidence and
quantitative and qualitative measurements that I could find.’
Erasmus J commented, correctly in my view, that this was indeed an
unfortunate attitude for an expert whose task was to assist the court in an
objective manner.
[12] The trial judge was also critical of Dr de Wit’s evidence for much
the same reasons.  As far as Ms Retief was concerned, Chetty J correctly
observed that her report and her testimony made it abundantly clear that
she accepted the allegations contained in Dr de Wit’s report as factually
correct; that she relied heavily on Dr de Wit’s findings, and that her
recommendations were influenced by Dr de Wit to an appreciable degree.
As the family advocate’s opinion was in turn based almost exclusively on
the recommendations in the reports submitted to her by Ms Retief and Dr
de Wit, as well as on the allegations in the pleadings and in the affidavits

filed in the Rule 43 application, Chetty J did not derive any assistance from
her recommendation either.
[13] As stated by the trial judge at the outset of his judgment, the
fundamental principle consistently applied by South African courts in
custody disputes, as indeed in all matters concerning children, is now
entrenched in section 28(2) of the Constitution.  This section provides that
‘[a] child’s best interests are of paramount importance in every matter
concerning the child’. (See further Jackson v Jackson 2002 (2) SA 303
(SCA) at 307I-308A, F v F 2006 (3) SA 42 (SCA) para 8 and also Lubbe v
Du Plessis 2001 (4) SA 57 (C) at 66B-67G.)  It is not necessary for the
purposes of this judgment to repeat the non-exhaustive, albeit
comprehensive, ‘checklist’ of criteria relevant to the application of the best
interests standard, set out in McCall v McCall 1994 (3) SA 201 (C) along
the lines of the checklist of relevant factors recommended by the English
Law Commission in its Review of Child Law, Guardianship and Custody
Law Com No 172 (1988) paras 3.17 et seq.  These criteria – and quite a
few more – have now been encapsulated in section 7(1) of the Children’s
Act 38 of 2005 which was signed into law by the President on 8 June 2006,
but which is not yet in operation.

[14] Determining what custody arrangement will serve the best interests
of the children in any particular case involves the High Court making a
value judgment, based on its findings of fact, in the exercise of its inherent
jurisdiction as the upper guardian of minor children.  This being so, an
appeal court will not easily second-guess those findings and conclusions.
This is especially so in a case like the present, where the trial court’s
conclusion – that the best interests of the children ‘demanded’ that custody
be awarded to Mrs Potgieter – was based to a large extent on favourable
credibility findings in favour of Mrs Potgieter and adverse credibility
findings against Dr Potgieter and the expert witnesses.  (See generally R v
Dhlumayo 1948 (2) SA 677 (A) and Santam Bpk v Biddulph [2004] 2 All
SA 23 (SCA) para 5; but cf Jackson v Jackson supra at 325B-C.)  This was
in fact the approach the Full Court followed on appeal to it.
[15] Counsel for Dr Potgieter contended, however, that both the trial
court and the Full Court had misdirected themselves in their assessment of
the expert evidence.  Thus, counsel argued, the material facts on which
both Ms Vogel and Dr de Wit based their opinions had been proved and
Chetty J’s criticism of their evidence was accordingly not justified.
According to counsel, the learned judge had erred by finding that these two
expert witnesses had unreservedly and uncritically accepted the version of
events proffered by Dr Potgieter and those collateral sources loyal to him.

This finding did not take into proper consideration the information gleaned
from the collateral sources consulted by the experts and the results of the
psychometric tests administered by them.  Counsel submitted that the trial
judge had incorrectly allowed himself to be influenced by statements put to
the expert witnesses by counsel for Mrs Potgieter in cross-examination
without any factual basis having been laid for such statements and without
any evidence being adduced either by or on behalf of Mrs Potgieter to
support such statements.
[16] The principles applicable to the admissibility and evaluation of
expert opinion evidence are well-established (see, for example, DT
Zeffertt, AP Paizes & A St Q Skeen The South African Law of Evidence
(2003) p 299 ff; PJ Schwikkard & SE van der Merwe Principles of
Evidence 2 ed (2002) p 89 ff and the cases cited by these writers).  As
Chetty J pointed out –
‘It is clear . . .that expert opinion is not the mere conjecture, surmise or speculation of
the expert: it is his judgment in a matter of fact.  It is equally clear, that whilst in many
cases a court needs and benefits from an expert’s opinion, the expert witness should not
usurp the function of the court.’
(On the proper role and function of expert witnesses in disputes involving
children and families, see further Stock v Stock 1981 (3) SA 1280 (A) at

1296E-F and Jackson v Jackson supra at 311F-G, 323E-324C and 327G-
333I.)
[17] The trial judge did not question the specialised knowledge, training
or experience of the various expert witnesses, but identified his main
problem with such experts as being ‘[their] inability . . .to draw a line
between matters of fact and matters of value thereby distorting the judicial
process by acting like judges.’  For this reason, he considered their
evidence to have ‘no real probative value’.
[18] This was a somewhat unusual case in that, although both Ms Vogel
and Mr Meyer were initially engaged by Mrs Potgieter to investigate the
issue of custody, both ultimately recommended that custody of the children
be awarded to Dr Potgieter.  It thus cannot be said that either of them was
partisan in the sense that he or she ‘consistently asserted the cause of the
party’ who had engaged him or her (see Stock v Stock supra at 1296F).
While Chetty J was correct in his criticism of Ms Vogel’s evidence, his
treatment of Mr Meyer’s report and the testimony given by him can
perhaps be criticised as being unduly cursory.  The same can be said of the
judgment of the Full Court in this regard.
[19] Chetty J disregarded Dr Crafford’s evidence on the ground that, as
he had last had contact with Mrs Potgieter some six years before the trial,

he was ‘unable to express any meaningful opinion on her present day
condition’.  However, Dr Crafford testified that the generalised anxiety
disorder which he had diagnosed when treating Mrs Potgieter was an
incurable lifelong condition and that, without ongoing psychiatric and
psychotherapeutic treatment, the long-term prognosis for Mrs Potgieter was
not good.  Chetty J’s dismissal of his evidence as having little probative
value was therefore, in my view, not entirely justified.  In this regard, Mr
Meyer also testified that, while the borderline personality disorder from
which, in his opinion, Mrs Potgieter suffers can be ‘contained and assisted’
with (inter alia) medication, there is no cure for this kind of disorder.
[20] These shortcomings notwithstanding, I do not think that either the
trial judge or the Full Court misdirected themselves in the assessment of
the expert evidence as a whole.  The main factual findings made by the trial
court were that Mrs Potgieter had looked after the children as their primary
caregiver all their lives; that there was no real evidence that they had
suffered any harm in her care; that despite the trauma and stress caused by
the protracted divorce proceedings, during which the parties continued to
live in the same house with the children, the children were doing very well
at school; that Mrs Potgieter dearly loved the children who reciprocated
this love; and that, while Engela had indicated no real preference as to

which parent she wanted to live with after the divorce, Johann had
expressed a clear desire to live with Mrs Potgieter.
[21] The experts, by contrast, did not base their opinions on these facts
and were by and large not prepared to reconsider their opinions when these
facts were put to them during the course of their testimony.  In the words of
Erasmus J:
‘Die problem met die deskundiges se getuienis was nie ’n gebrek aan kundigheid in hul
vakgebied nie, maar in hul skynbaar onkritiese aanvaarding van die weergawe van die
appellant en sy verwysingsbronne.’
[22] The most telling example of this failing on the part of the expert
witnesses was the acceptance by Dr de Wit, Ms Retief and, it would
appear, also Mr Meyer of allegations by Dr Potgieter and by Ms Zama that
the latter was the children’s primary caregiver during a period of several
years preceding the trial.  Ms Zama’s evidence did not, however, bear out
these allegations.  While her evidence-in-chief portrayed Mrs Potgieter as
an uncaring, neglectful and bullying mother prone to outbursts of rage and
physical abuse directed against both Dr Potgieter and her children, her
evidence under cross-examination revealed quite a different picture.  Ms
Zama conceded, albeit somewhat grudgingly, that her function in the
parties’ household was that of a domestic worker who left at half past four

each afternoon, and that Mrs Potgieter was the person who primarily cared
for the children on a day-to-day basis.  Ms Zama went so far as to concede
that Mrs Potgieter, with whom she clearly had a difficult and somewhat
turbulent relationship, was in fact ‘’n goeie ma’.
[23] The Full Court concluded that Mrs Potgieter clearly suffers from
personality problems in that she is impulsive, unstable, somewhat inflexible
in her personal relationships and prone to confrontation.  She herself
conceded that she had difficulties in managing her finances (one of the
major complaints directed against her by Dr Potgieter).  However, it was
common cause that, for some years preceding the trial, she had managed to
keep her depression, which had in the past led to several suicide attempts,
under control with medication.  Moreover, it must be remembered that
many of her problems manifested themselves during the parties’
increasingly stormy marriage.  Particularly in the relatively lengthy period
leading up to the trial, both parties were subjected to the enormous strain of
living under the same roof while bitterly estranged from each other and in
constant conflict.  There would obviously be new stresses on Mrs Potgieter
in her life as a divorcée and single parent, but the trial judge and the Full
Court were of the view that neither her personality problems nor these new
stresses would impact on her parenting ability to such an extent that it
would not be in the best interests of the children to continue being cared for

by her, albeit while they maintained the close relationship they have with
Dr Potgieter.
[24] I do not believe that either court misdirected itself in this regard.  In
determining what custody arrangement will best serve the children’s
interests in a case such as the present, a court is not looking for the ‘perfect
parent’ – doubtless there is no such being.  The court’s quest is to find what
has been called ‘the least detrimental available alternative for safeguarding
the child’s growth and development’. (See Joseph Goldstein, Anna Freud
& Albert J Solnit Beyond the Best Interests of the Child (1973) p 53, as
cited in Boberg’s Law of Persons and the Family 2 ed (1999) p 528-529 n
117.)
[25] In concluding that maternal deprivation would ‘inevitably have
adverse consequences for [the children’s] development’, Chetty J cited
with ‘wholehearted’ approval the following dictum of Broome J in
Dunsterville v Dunsterville 1946 NPD 594 (at 597):
‘Experience goes to show that a child needs both a father and a mother, and that, if he
grows up without either, he will, to some extent, be psychologically handicapped.  But
the maternal link is forged earlier in the child’s life than the paternal, and if not forged
early may never be forged at all.  The psychological need of a father, on the other hand,
only arises later.  It seems to me that if the father is awarded the custody of these young

children they will in all probability, notwithstanding the loving care which they will
undoubtedly receive from their paternal grandmother, grow up as motherless children,
with all the attendant psychological disadvantages.’
Broome J went on to state that –
‘If, on the other hand, the mother is awarded their custody, at any rate during their years
of infancy, they will not necessarily grow up as fatherless children, for the relationship
between a father and his young children is never one of continuous intimacy, but is
necessarily intermittent.’
[26] In more recent cases, the value systems and societal beliefs
underpinning the ‘maternal preference’ or ‘tender years’ principle have
been challenged and courts have emphasised that parenting is a gender-
neutral function and that the assumption that a mother is necessarily in a
better position to care for a child than the father belongs to a past era.  (See,
for example, Van der Linde v Van der Linde 1996 (3) SA 509 (O); Van
Pletzen v Van Pletzen 1998 (4) SA 95 (O); Ex parte Critchfield [1999] 1
All SA 319 (W) and the other cases referred to by LI Schäfer ‘Young
Persons’ in Brigitte Clark (ed) Family Law Service (Issue 45) para E42.
See also Boberg’s Law of Persons and the Family 2 ed (1999) p 534-538
and the authorities there cited.)  Chetty J’s reliance on the abovequoted
dictum of Broome J in the Dunsterville case must therefore be seen in the
light of these more recent developments.  The later approach, it needs be

added, is in any event consistent with the equality principle enshrined in
section 9 of our Constitution.
[27] It should also be noted that the minor children have been in Mrs
Potgieter’s custody (without the daily presence of Dr Potgieter) for nearly
two and a half years since at least October 2004.  If Dr Potgieter had, at any
time during that period, formed the view that the children were suffering
harm of any kind by being in Mrs Potgieter’s custody or that circumstances
had changed to such an extent that there was ‘sufficient reason’ for the
custody order Chetty J granted to be rescinded or varied, he could have
applied to the High Court in terms of section 8(1) of the Divorce Act 70 of
1979.  That option obviously remains open to him.
[28] As regards Dr Potgieter’s appeal against the order by Chetty J that
he should pay rehabilitative maintenance to Mrs Potgieter in the amount of
R4650 per month for a period of 12 months, there is ample evidence to
show that Mrs Potgieter required such rehabilitative maintenance and that
Dr Potgieter was able to afford it.  Although counsel for Dr Potgieter
submitted that the period of payment of such maintenance should be
reduced to three or four months, he did not point to anything in the
evidence that indicated that Chetty J had erred in his determination of

either the amount or the period of payment.  In my view, there was no such
error.
[29] Finally, counsel for Dr Potgieter submitted that, even if the appeal
on the merits were to be dismissed, this Court should make no costs order
on appeal and should in addition set aside the cost orders made against Dr
Potgieter by the trial court and by the Full Court so that each party bears his
or her own costs.  In the light of, inter alia, the adverse credibility findings
made by the trial court against Dr Potgieter, I am of the view that there is
no reason to interfere with the cost orders made by the two previous courts
and that Dr Potgieter must be ordered to pay Mrs Potgieter’s costs in this
Court.  I do not, however, believe that it was necessary for Mrs Potgieter to
be represented by two counsel in this appeal: indeed, counsel for Mrs
Potgieter did not ask for the costs of two counsel.
[30] In the circumstances, the appeal is dismissed with costs.

B J VAN HEERDEN
JUDGE OF APPEAL
CONCUR:
FARLAM JA
CAMERON JA
HANCKE AJA
THERON AJA
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal

Date:
30 March 2007

Status:
Immediate

Please note that the media summary is intended for the benefit of the media
and does not form part of the judgment of the Supreme Court of Appeal

JOHANN FÖLSCHER POTGIETER v ILSE POTGIETER (Case No 215/06)

The Supreme Court of Appeal today dismissed an appeal by the appellant
father of two minor children against an order awarding custody of the children
to the respondent mother, subject to the father’s right of reasonable access.

An enquiry was conducted by the family advocate during the course of the
divorce proceedings. A number of experts, including three clinical
psychologists and a social worker, prepared written reports and testified at the
trial.  The psychologists diagnosed the mother to be suffering from a
borderline personality disorder which manifested itself in, amongst other
things, impulsivity, emotional instability and mood swings.  All the experts
recommended that custody of the children be awarded to the father, at least
two of them premising this recommendation on their acceptance of the
allegation that the parties’ housekeeper had been the children’s primary
caregiver for a number of years preceding the trial. However, the High Court
found that the mother had always been the children’s primary caregiver and
that her personality problems did not impact adversely on the children’s
welfare and development.  The High Court was unimpressed with the expert
witnesses, criticising their lack of objectivity and their failure to distinguish
between matters of fact and matters of value.  The Full Court and the SCA
both agreed with this assessment of the expert evidence.

In dismissing the appeal, the SCA restated the fundamental principle
applicable in custody disputes, namely that the best interests of the children

involved are the paramount consideration in any particular case.  The
determination of a custody dispute involves the making of a value judgment,
based on findings of fact made by the trial court relating to the parties’
parental capacity and an appeal court will not easily second-guess those
findings and conclusions.

----ends----