Wednesday, August 19, 2015
Thursday, December 4, 2014
A tale of two toddlers: why the high court should not accept Skelton’s recommendations.
In a report that may have far
reaching consequences for two toddlers, their parents (both bioloical and
“adoptive”) and their future generations, Professor Ann Skelton recommended
that two toddlers swapped at birth be kept by their “adoptive parents” (BDlive,
26 November 2014). Skelton, Director for Child Law, of the University of
Pretoria’s was appointed by the North Gauteng High Court, in a modern day dilemma
of ancient King Solomon tale of one baby two mothers to investigate what would
be best for the two toddlers. Armed with the “wisdom of King Solomon” and the
sword of the Children’s Act (Act 38 of 2008) and the Constitution of 1996
(section 28(2)) Skelton reckoned that it was best for the two toddlers to be
left where they are (with their non-biological parents) – while their
biological parents are allowed
reasonable access to them. I should be quick to admit that I have not seen the
actual report, but I rely on the electronic news reports. If what is reported
in the news reports is correct about what transpired and what Professor Skelton
recommended, then I do not think that the recommendations should be allowed to
stand. It is reasonabe to accept that Skelton made her recommendations on the
basis of the constitutional paramountcy of the best interests of the child, as
contained in section 28(2) of the Constitution and section 9 of the Children’s
Act (both read with section 7 of the Children’s Act, the standard for the best
interests of the child). However, my own prima
facie take on the matter is that the recommendtions of Skelton should be
rejected by the high court. My argument is based on the same principle of the
supremacy of the best interests of the child in every matter involving a child
and some crucial factors pertaining to both children. I thus illustrate these
factors in conjuction with the legal framework which I assume was instrumental
in Skelton’s recommendations. I begin by making reference to the relevant law.
The law
Section 28(2) of the Constitution of
the Republic of South Africa states: “a child’s best interests are of paramount
importance in every matter concerning the child.” This same principle is
re-itterated in section 9 of the Children’s Act in an elaborate manner. Section
9 states: “in all matters concerning the care, protection and well-being of a
child the standard that the child’s best interests are of paramount importance,
must be applied.” Section 7 of the same Act on the other hand lists numerous
factors to be considered as a standard of the best interests of the child.
These range from nature of the personal relationship between the child and “the
parent”, to the attitude of the parents towards the child and their
responsibilities towards it, to their capacity to provide for the child’s
needs, to the likely effect of the changed circumstances on that child, and to
the child’s age, maturity and stage of development, gender and other
characteristics of the child. They also include the child’s physical and
emotional security, intellectual, emotional, social and cultural development as
well as the need for the child to maintain a connection with his family,
extended family, culture or tradition.
It is
now settled what paramouncy of the best interests of the child principle entail
that the decision makers (such as adjudicators) in matters involving children
must show a bias towards the interests of the child, judged by weighing the
factors just cited, among others (see
for example section 8 of the Children’s Act). It is also widely accepted
that the child’s bests interests involve immediate (or short term) interests,
mid-term interests and long-term interests. These interests ought to be
balanced and the “adjudicator” must exerise value judgment in coming to what is
best for the child. For example, while on the the short term it may be
beneficial, emotionally, for a child to remain with a certain parent but have
long term psychological damage. In the present matter, the dilemma arises from the
fact that the interests of the child are competing against the interests of
another child, the same age (both children are four years old). Thus any one
trying to resolve the condondrum, will always have difficulty in coming to an
equitable resolution. However, there are key factors that weigh against the
recommendation that has been reached by Skelton. But first, I need to consider
some of the basis for her report.
The merits
According to the BDlive report, the
two mothers are devastated and shocked by the revelations. One mother was hospitalised
upon learning that the girl she so dearly loved is not hers. This mother and
her “devastated former boyfriend” are even doubting the results of the DNA. This
father (former boyfriend) firmly believe that the girl is his child and thus
has a very strong relationship with her. He even name her after his own mother.
The other mother (who cares for the baby boy) initialy wanted her baby girl back but later changed
her mind. Her main concern is seemingly motivated by her care for both
toddlers. She is concerned about the girl losing a father who loves her. She is
also concerned about giving the boy to parents who may not love him. These are
genuine concerns indeed. They are highly relevant in determining the best
interests of the two toddlers. However, the best interests of the child go
further than these and there are also long term interests. My assertion is that
long-term best intersts of the two toddlers should override short-term interests.
Also not to be ignored is the fact that at the centre of the dilemma, there are
two individual children. Thus, their best interests should not be conflated
together. Instead, the best interests of each child should be considered
separately, and (maybe to some extent) collectively.
Financially,
the two toddlers are likely to be in a similar position, as the respective
biological and non-biological parents whould likely succeed in their delictual
claims for negligence against the MEC for health and the hospital. So over and
above what their biological parents may afford, their financial position may be
improved. What is at issue are the best interests based on their emotional,
social, and psychological needs. It also lies on the age, maturity and stage of
development of each child, as well as the likely effect of the changes in their
circumstances on each child. The emotional, social and psychological needs of
each child is that he or she be with a loving parent and a stable home environment.
However the circumstances may change which no doubt will negatively affect each
child. Still no one can say that this will cause a permanent psychological
damage to each one of them. Thus, the critical question is: will each child
suffer an irreparable emotional and psychological harm if remove from the
present family environment to its biological parent(s)? Significantly, the two
are only four years old. They will likely recover quickly. They may, of course,
require psychological help, icluding each child maintaining some relationship
and contact with the non-biological parent(s).
The
girl, meanwhile, used to having a loving father. A change is likely to
adversely affect her more than it does to the boy. However, she will have a
loving mother to care for her. She will also be united with her father – the
man that the mother was suing for the girl’s maintenance. By law, if the man is
the girl’s father, he will be entitled to full parental responsibilities in
respect of the child in terms of section 18 of the Children’s Act. It is likely
that this man rejected the boy because he genuinely believe that he was not his
child and may feel otherwise towards the girl (if indeed she is his child).
On the
other hand, the attitude of the parents (particularly, towards their biological
child) is equally important. This attitude will also be critical in the
emotional and psychological recovery of each child. Notably, one mother is torn
between two parts – wanting to keep the boy for the sake of the non-biological
father who has fallen in love with the girl child. This “father” is so much in
denial to the point of disputing the DNA results. Thus, the position is that
the girl’s biological mother loves her (but is worried that she will lose a
loving father). She is amenable to giving the boy to its biological parents,
but only worried if he will find love. It is also appears that the boy’s
bilogical mother is not opposed to
receiving him back. It also appears that the boy is used to being without a
father. So, if returned to his mother he will be without a father should the
mother’s former boyfriend reject him.
That
the father disputes the DNA test results can easily be resolved with the
perfomance of fresh tests (but it seems he is the only one in denial). It is
crucial that he no longer live with the boy’s mother.
Moreover,
Skelton’s recommendations set a bad precedent. Parents should not be allowed to
reject their bilogical children in preference for a non-biological child. Yes,
it was a mistake. However, the truth is now know. Parents must accept it and
help the children to move on with their life. Most importantly, Skelton has
recommended that the children be kept by non-biological parents and that
biological parents be allowed reasonable contact to them. This is not in the
children’s long term best interests. Skelton’s recommendtions should not be
allow to stand. Instead, each child should be handed back to its bilogical
parents, with a reasonable access or contact for non-biological parents. Both
biological and non-biological parents, with the help of professional must
explain what happened to the two children and tell them who their real parents
are. However, I reckon that any contact with the non-biological parents should
be temporary to enable the two toddlers to cope. This contact will allow for
emotional healing and psychological acceptance of the changes. What the two
babies need most is pschological treatment and constant monitoring by social
workers. At four-years old, the toddlers are still young and will recover
emotionally, psychologically and otherwise.
Also
not to be ignored is a child’s right to identity, including a name (including
family name) and cultural rights. Significantly, one father actively involved
in the life of the girl child (supposedly including his extended family) is a
culturalist. He has performed traditional ceremonies for the girl, already. On
the other hand, no evidence is there that a similar ceremony was performed on
the boy, suggesting that the boy’s “adoptive” mother (including her family) is
not into customary rituals. If that were the case, a child who should have had
a traditional ceremony performed in his behalf has not had that, while a girl
who should have no rituals performed on her behalf has had it done for her.
This practice is likely to happen also in future. This cannot be in the best
interest of any of the two toddlers indulge in a culture not hers or to be
deprived of his family culture. It is this father who will teach him
traditional rituals of his family.
Further,
in terms of the African culture, the boy needs his family name. If he does not
get it, he will be perceived as an outcast by his incestors. As as a result such,
he may suffer misfortunes in life until he is integrated into the family in a
traditional way. This is better done now when he is still a child and his father
is still alive, than later in life. Therefore, customarily, it is the boy that (perhaps)
needs this father more than the girl.
Conclusion
In conclusion, the recommendations
of Professor Skelton do not resolve the dilemma. Instead, she is inadvertantly
persuading the court to pospone resolution of this dilemma. It is better that
the error is corrected now while the two children are still young to allow
their psychological healing process to
take place. It is in their best interests that they begin living with their
respective bihosological parents to bond with them and learn their respective
family traditions and ethos.
Post Script
One lingering question that I am
unable to take out of my mind is: where were the two fathers, especially the one who is refusing to accept the DNA
test results, when the babies were swapped in hospital? I understand that the
one father had to be sued for maintenance before he acted. However, it is
different with this one who “claims” to be so much attached to girl. Being a
responsible father means that he should have been present at the hospital when
the baby was born (unless he has a plausible for his absence). The law allows
for family responsibility leave in respect of matters such as the birth of a
child. I understand that public hospitals normally do not allow fathers in the
theatre when a child is born. Still one may wait outside the theatre to immediately
welcome your baby while its mother lies in pain.
State versus Pistorius ([2014] ZAGPPHC 793): The Evidence that the Judge Never Considered
Once
again many eyes will focus on the Gauteng North High Court in Pretoria on Tuesday
9 December 2014 where the State and Pistorius defence team lock horns again in
the State’s application for leave to appeal the verdict and/or lenient sentence
imposed on Pistorius. Many will be wondering and arguing what could have gone
wrong and whether the Steenkamp family will eventually get justice for the
heinous murder of the daughter Reeva. While
Judge Masipa has been criticized from different quarters for her handling of
the case, particularly for her verdict, I have been impressed by the manner she
presided over the trial over-all – for that I would give ten or even eleven out
of ten. With the exception of a few circumstances, I listened religiously to
the trial of Oscar Pistorius daily on EWN “gavel by gavel” and “minute by
minute”. I listened to witnesses being examined, cross-examined and re-examined
by both state and Defence. I cannot falter her the way she conducted the trial
proceedings. She remained attentive, sober and displayed great focus on the
evidence being presented day in and day out. I was also impressed by her sentence
judgment (S v Pistorius ([2014]
ZAGPPHC 924). It was well-reasoned, with case law authorities. It was almost flawless.
However, like the majority of the members of
the public I was disappointed with her verdict, particularly her lack of
reasoning on the evidence that the witnesses presented before the court ([2014]
ZAGPPHC 793). (Coincidentally, both Masipa judgments are written in an
old-fashioned manner that has no paragraph numbering, but sentence numbers.
This lack of paragraph numbering, contrary to what has become the norm for
judgments, does not help the judgment’s course). The fact that she never
considered some crucial evidence – such as the evidence led regarding the
sliding door, curtains, blinds, the position of the couple’s duvet and blood
spatters on the floor & in relation to the duvet – for no plausible
explanation was disappointing. Masipa confessed to the amount of evidence led,
by way of a point of departure that a lot of evidence was led, hence her one
page summary of the evidence – which is in my view is inadequate for the issue
on hand. However, this was not the first time that the court has been seized with
such a high volume of evidence. For instance, in State v Zuma, numerous
witnesses testified, especially, for the Defence (2006 (2) SACR 191 (W), 2006
(7) BCLR 790 (W)). Judge Van Der Merwe analysed the evidence in satisfactory
fashion, instead of taking a short cut. Thus, taken holistically, Judge
Masipa’s judgment (verdict) lacks the tenacity displayed in her sentence
judgment.
It is this disappointment and an academic
curiosity of what could have been as well as what the court of appeal may have
to consider when the matter finally reaches the Supreme Court of Appeal that has
prompted the writing of this article. Whereas it partly deals with intention,
it largely is limited to some crucial evidence that Judge Masipa should not
have ignored in reaching the verdict, especially when determining whether or
not Pistorius has acted intentionally or negligently. However, I do not dare
venture into the controversial of the dolus eventualis that has been debated in the public.
Intention in general
In
this case of Pistorius, the central question (issue) was whether the accused had
acted intentionally or not, at least with dolus eventualis (often
referred to as “constructive” or “legal intention”) or not when he killed the
deceased. The State had built its case on circumstantial evidence and argued that
at least Pistorius’ intention was in the form of dolus eventualis. Intention
is assessed subjectively. Thus CR Snyman cautions the court against “subtly
applying an objective instead of a subjective test [required] to determine
intention. More often, accused persons will deny acting intentionally. In this
regard Snyman says: “it is, after all, a well-known fact that many accused who
in fact have intention, subsequently falsely deny in court that they acted
intentionally. If this happens, a court may base a finding that X acted
intentionally on indirect proof in intention. This means that the court may
infer the intention from evidence relating to X’s outward conduct at the time
of the commission of his act as well as the circumstances surrounding the events.”
(CR Snyman Criminal Law (2002), 186 – 187). As Snyman points out, to determine intention
in such circumstances, “the court must consider all the circumstances of the
case (such as the possibility of a previous quarrel between the parties) as
well as all of X’s individual characteristics which the evidence may have
brought to light…” (Snyman, 187)
To prove the existence of intention “the court
must then to the best of its ability try and place itself in X’s position at
the time of the commission of the act and then try and ascertain what his (X’s)
state of mind was at that moment – that is, whether for example he appreciated
or foresaw the possibility that his act court result in Y’s death.” (Snyman,
187) Logically, we are about what the accused would have actually foreseen and
appreciated (subjective) as opposed to what he ought to have reasonably
foreseen.
Assessing
the evidence
Among
the many aspects of evidence that the State presented in support of it case
there was evidence of several key witnesses, including Ms Estelle van der
Merwe, the pictures depicting the scene of the crime, inter alios, in relation to the two fans, the
sliding door, curtains and blinds and the duvet. The court relied on the
post-mortem report, especially about the nature of the wounds that the deceased
sustained. It is this same evidence that I look into for this work, as shown
herein below, starting with the evidence of Ms Estelle van der Merwe.
Ear witnesses’ evidence
Ms
van der Merwe lived in the same complex as Pistorius (why the court does not
mention her distance from the accused house is anyone’s guess). She testified
that she had awoken shortly before 02:00 in the morning to hear what she
perceived to be a woman’s voice engaged in argument with someone though she
could not locate the voice. She also heard “gunshots” shortly after 03:00. This
evidence is crucial for the issue at hand and for the State case. I would have
loved the court to fully explore it, paying attention on the distance of her
house in relation Pistorius house and the number of shots she had. The court
should have enlightened us in its judgment if she went back to sleep or not from
two o’clock to three o’clock. As is, I agree that as is this evidence is
doubtful. However, this is no train smash for the State case as it could be
useful when considered with other evidence. Such include what other witnesses
heard, albeit at the distance of 177m and 80m. While the evidence of Dr Lin was
used to cast doubt on the evidence of ear witnesses, I did not understand him
to mean that they could not hear the voices of people arguing. Most importantly
the witness had no reason lie against Pistorius.
Also, in relation to the
screams, the court accepted that the issue of whose voice was heard by the
witnesses was important. Yet the court says nothing about the accused’s failure
to demonstrate his claims that he sometimes screams like a woman, despite the
defence assertion during cross-examination that he would do so. This was a
using an underhanded tactic by the defence, which the court should have done
something about such omission by the Defence.
The nature of wounds on the
deceased
The
court relied heavily on the evidence of Dr Saayman – the post-mortem, which conclusively
proved that “the deceased suffered horrendous injuries”, causing (in respect of
the wound in the right hip) “almost immediate instability or loss of stability
pertaining to that limb or hip”. This, the court argued, means that deceased
could have been able to scream, as alleged by State witnesses. However, this
supposition by the Judge missed one crucial evidence – the evidence of Captain
Mangena. Mangena demonstrated irrefutably that the shots were not fired in
quick succession, that is, there was a short break in between the first shot on
the deceased hip
The fans, the curtains and
the blinds
From
the outset, I must state that this was a hotly contested issue by the parties,
especially the Defence. I also take cognizance that there were allegations that
the scene of the crime was tempered with and that there was a lost extension
cord. However, the accused could not state at what stage was the scene tempered
with. Hence, the judge may have avoided controversy by never venturing on this
part of the evidence. However, the evidence of the position of the ferns in
relation to the sliding door, the curtains and the blinds was crucial to the
verdict of murder. The accused claimed that he had removed the ferns to close
the sliding door, the curtain and the blinds. On the other hand, the State
showed pictures with ferns in their original position, while the blinds and
curtains are not closed. The accused could not say that this picture had been
tempered with. Most importantly, the police who took pictures of the scene did
not know the accused’s version regarding the removal of the ferns and closing
of the sliding door. Logically then, Pistorius’ version in this regard was a
lie. The sliding door, the curtains and the blinds were never closed. It
follows then that the bedroom was not dark, as the accused claimed, even if the
bedroom lights were never switched on when the accused went to the
bedroom/bathroom to shoot the alleged intruders. Instead, the bedroom was lit by outside
light. Consequently, the accused could tell if the deceased was in the bed or
not.
Moreover, to prove that the accused
version is false, Adv. Nel asked Mr Pistorius what he did after shooting. The accused
responded that he went to the balcony with the gun in his hand in all material
times, while using one hand for balance and then without putting down the
firearm, opened the sliding door. Nel thereafter pointed out that the sliding
door needed both hands to open. The only logical or probable conclusion is that
the sliding door was open when Mr Pistorius went to the balcony to cry for help
and that it had never been closed as per his version.
The duvet on the and blood
spatters
There
was also considerable argument about whether the pair of jeans was on top of
the duvet or was on the floor near the duvet. The State was adamant that it was
on top of the duvet, while the Defence argued that if one blew the picture up,
a different view was portrayed. But there was irrefutable evidence to the
effect that the duvet was on the floor at the time that the accused went to
shoot at the “intruder”. This is borne to by the evidence of blood spatters on
top of the duvet which were made when the accused carried the deceased towards
the stairways to the bottom floor. Clearly, this evidence should not have been
disregarded by the court as irrelevant. It also proves that at least Pistorius
would have been aware that Reeva was not at the time that the accused “believe
in the presence of the intruder”. This together with the rest of other evidence
points to but one conclusion that the accused new he was shooting at Reeva when
he did shoot – or at least he should have in all probability known that the person
in the toilet cubicle when he did shoot (sentence judgment, 13 par 2 – 14 par
1)
The
merits
Meritoriously,
the court failed in its analysis of the evidence, especially, in relation to
the intention. For example, if the duvet were on the floor (as the evidence
proves it was) when the accused either when he returned from “bringing in the
fans (which is a fabrication)” or when back to “arm himself (in all probability
he never went back to arm himself – must have been armed all the time he
approached the toilet), he would in all probability seen the duvet and foreseen
the possibility that Reeva was in the toilet”. Moreover, if Mangena’s
reconstruction of the sequence of the shots, the deceased would have shouted back
to alert the accused of her presence in the toilet. In that case, to the very
least, when the accused fired the three subsequent shots, knew who the
“perceived intruder” was. In all
probability, in my view, the accused acted intentionally (at least in the form
of dolus eventualis).
Eccentrically, in the present
case, the court largely disregarded the circumstances that were vital to the
form of fault that was present in the case of Pistorius. Even his behaviour
after the shooting is suspect. For example, instead of calling security guards
who would have been nearby for assistance, he called his friend Stander who
take some time to reach Pistorius’ house. Thus what was he doing all the time
while waiting for the first person to arrive at the scene? Also, why did he
remove the deceased from the actual scene if by the court’s own admission that
she would have died immediately as a result of the seriousness of the
injuries? In fact, Masipa’s own
summation of the evidence during the sentence judgment, inadvertently, is
testimony to the fact that the accused had acted with intention (at least in
the form of dolus eventualis) when he shot and killed the deceased (see sentence judgment, 13 par
2 – 14 par 1).
Moreover, one question that
the judge failed to ask even in her sentence or kept ignoring is why Pistorius
“fired” in the first place. In other words, by firing each of the four shots,
what was he seeking to accomplish. Instead of confronting this question, the
court boldly accepted the accused “would have fired higher if his intention was
to kill…” (Sentence judgment, 14 par 1). What then was his intention? We are
left in the dark in this regard.
Conclusion
Effectively,
the court ought to have taken all the evidence, in particular, the scene (as
has just been argued earlier) together with all the circumstances if it were to
come to the correct judgment regarding intention. Judge Masipa erred in
reaching her verdict. She appears to have taken a short cut with the evidence,
thereby disregarding crucial evidence, as has been pointed out above. In my
view, justice would have been served had Masipa paid attention to all the
evidence before her – even if she had rejected if after a careful analysis
thereof. She also was a bit generous to Pistorius. Not only did the judge’s
erroneous approach to evidence fail justice, but it also led to the incorrect
verdict. Therefore, it is not presumptuous to expect that the appeal court
could come to a different conclusion.
Tuesday, July 16, 2013
Taking a school bully by the horns: A victim's perspective.
Introduction
School bullying is so rife that
with the advancement in technology and social networking, so too has bullying
advanced and modernized. It has assumed cyber mediums. Reports of bullying
at school adorn pages of newspapers daily. For example, it was reported a few
months that a school boy from Gauteng stole his mother's key safe from her
handbag went to the safe stole her work firearm while his mother was hanging
washing. Then took it to school and shot dead a bully. As we speak, the boy is
facing murder charges for the death of the bully school mate. At about the same
time that that incident happened, another boy in Durban stabbed a bully to
death. If one has experienced bullying at school, it is easy to sympathize with
the victims who are facing court charges. Often, parents of bullies are not
aware of the ill-treatment meted to others by their child. For instance, the
bereaved grandmother of the deceased boy described him as a respectful boy who
would just greet and go to his bedroom. To her, this was a sign of a "good
boy". However, this seems to suggest that the boy lived a solitary life at
home. It also indicate that there was no real communication between the boy and
the parents and thus, they may not have been aware of what was happening in his
life.
The Real Problem
Often, also many a parents of bullying
victims are not aware of the harassment that their children are experiencing at
school. Victims may keep quiet for fear of severe repercussions from the
bullies or for fear of being regarded as cowards. For many years ago, while I
was in standard four, I was a victim of bullying by two boys from another
school. They each slapped me in the face one after the other. The first boy
alleged that I have said that I could beat him. Truthfully, I was scared of
that boy, having fought some time back, but I had not said what I allegedly
said about him. Then, the other boy realizing what had taken place alleged the
same about himself. He thereafter slapped me hard on the face. Unfortunately,
for him I was not scared of him and at that moment I was very angry after the
humiliation at the hands of the other boy. Thus I fought him tooth and nail. I
overcame him. He then bit me in the chest and then I retaliated by biting him
in the cheek.
Among
spectators were other boys from his family kraal. They were bitter that he was
defeated. One of them gave him an okapi knife to stab me. He ran after me but I
picked up a stone. He therefore retreated. However, he said to "we will
see how you will go to school tomorrow!" He was my neighbour and his
homestead was on my way to school. I knew those were no empty threats. At the
time I was still a herd boy. After having my food, I went to the veld to
look after my father's cattle without reporting the incident to my
grandmother. My father's hired herd-boy noticed that something was wrong.
After a few questions from him, I related the whole story to him. My
grandmother then went to the second bully's home and coincidentally, his
guardian was his grandmother. The boy was then given tongue-lashing by his
grandmother. Then I was rescued by my grandmother.
My
experience goes to show how victims of bullying often deal with being bullied.
They try to keep it to themselves, which is not the best way to deal with
bullying. It also shows that speaking out is the best way to defeat school
bullying or bullying in general. However, it shows that parents from both sides
have an important role to play in fighting against bullying. Thus my advice to
victims is never to try deal with the problem on your own. Tell your parents
about it, they are experienced. They will know how best to deal with the
situation.
Conclusion
In conclusion, to parents: be
observant of your child behaviour daily when they are from school - if they are
not bullied, they may be bullies. Do not be quick to deny that your child is a
bully. Take those allegations serious. On the other hand, if your child is a
victim, do not delay. Act immediately. Normally, if your child is exceptional
at school (like myself back then) he will be loved by teachers. Likely, he will
be bullied by envious older school mates. In my case, I suffered many other
incidents of bullying from jealous schoolmates, especially, male
counterparts.
Share your comments and experiences
on bullying.
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