CHILD HARMED BY ACRIMONIOUS DIVORCE
KV v PV [2021] 2020-13126 (GJ)
During acrimonious divorce proceedings the clinical psychologist reported on the child (aged 11 at time of the judgment). He found that the child had an unhealthy and inappropriate knowledge of the acrimonious litigation between the parties and that he was progressing towards an alienated child. The psychologist recommended that the acrimony desist immediately and also recommended a parenting coordinator and a psychotherapist. But the recommendations were not implemented and the child’s condition regressed to where the child refused to go to the applicant, who then approached the court.
Parker AJ discusses whether the best interests of the minor child was served by the parties; the voice of the child; the Children’s Act; and whether a parenting coordinator could represent a child and be a legal representative for the child.
A mediator is appointed to resolve the appointment of a parenting coordinator and the other experts.
The clinical psychologist is to re-investigate the matter.
A curatrix ad litem is appointed to act on behalf of the child.
Both parties shall be equally liable for the costs of the mediator, curatrix ad litem and other experts.
CONFIDENTIALITY AGREEMENT AND WRONGDOING
Jacobs v KwaZulu-Natal Treasury [2021] DA7-20 (LAC)
In 2009 Ms Jacobs was on a selection panel to consider applicants for an assistant manager position. Ms Van der Merwe was recommended for the appointment as she had obtained a higher score than Ms Jamile in the system test. But a few weeks later Ms Jacobs noticed that the minutes had been changed to reflect Ms Jamile as the candidate. Ms Jacobs was persuaded to sign the changed minutes. In 2015 Ms Jacobs was asked by a labour union representative to give evidence about the 2009 selection proceedings, in arbitration proceedings for a Ms Nelson, which evidence could be in affidavit.
Despite her 21 years’ service, Ms Jacobs was later charged and dismissed for misconduct, on the grounds that she breached the confidentiality agreement for the selection process when she disclosed information as evidence in arbitration proceedings, without first obtaining the permission of the employer. Ms Jacobs was unsuccessful at the bargaining council and at the Labour Court.
Kubushi AJA finds that an employer may not invoke a confidential agreement to conceal wrongdoings in the workplace and an employee who has signed a confidentiality agreement does not require the permission of his or her employer to reveal wrongdoings in the workplace if required to do so in legal proceedings. If permission was to be obtained first, any dishonest conduct would never see the light of day. See paras [37]-[38].
The appeal is upheld and the order of the Labour Court replaced with one reviewing and setting aside the arbitration award and ordering the reinstatement of Ms Jacobs with retrospective effect.
(Waglay JP and Davis JA concurred.)
SUMMONS NOT APPROVED BY BUSINESS RESCUE PRACTITIONER
Firm-O-Seal CC v Wynand Prinsloo & Van Eeden Inc [2021] ZAMPMHC 35
Firm-O-Seal issued summons against their former attorneys, but it was under business rescue and the business rescue practitioner did not know about the summons and did not authorise its issue. The practitioner’s attorney later sent a letter confirming this and instructing the withdrawal of the action. This was not done and the practitioner then signed a power of attorney in which he authorised Firm-O-Seal’s attorneys to proceed with the action, “ratifying” any steps and/or actions already undertaken. The defendant’s raised a plea relating to Firm-O-Seal’s locus standi (as well as pleas on prescription).
Ratshibvumo J discusses s 137 of the Companies Act 71 of 2008 (effect of business rescue on shareholders and directors); the case law; and the forms of sanctions in case of directors who fail to perform their function under the authority of the practitioner or his express instructions.
The court finds that the action by the directors in instructing an attorney to issue summons was void for not having been approved by the practitioner and that their decision was incapable of being ratified ex post facto.
The defendants’ special plea on locus standi is upheld and the plaintiff’s claims are dismissed with costs.
ABOUT THE EDITOR
Louis Podbielski spent ten years at Juta working on various law reports and has read many thousands of judgments for case selection. He has considerable experience in writing flynotes and headnotes, compiling case annotations, and in refining subject indexes. During his four years at LexisNexis he was involved with legal data, analytics and in developing various legal tech solutions. He now runs his own case law service Louis Case Law
You can read his full CV and more about Louis on his LinkedIn profile where he shares interesting and recent cases.
