A tale of two toddlers: why the high court should not accept Skelton’s recommendations.

 Introduction

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

 Introduction

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.