The welfare of children in a divorce or separation is the most important aspect of any divorce. Although most couples believe children’s welfare is one of the most important factors to consider in a divorce, a great percentage of parents that divorce or separate see conflict as an inevitable part of the process and are determined to fight battles in court.
From time to time one comes across an intransigent parent who is incapable of objectivity when considering what is best for the child. It may well be that you do not like your partner, but the child’s view of the parent is different. He or she will have love and trust for that person, capable of transcending even the most dreadful scenes that may have been witnessed.
Unfortunately it occurs often that one parent use the machinery of the law in a wrongful manner in an attempt to “legally abduct” or alienate a child by making false allegations against or about the other parent. Often one would find that a parent will for example falsely accuse the other parent of sexually molesting the child or accusing the other parent of emotional abuse towards the child.
In a recent matter a mother who was the custodian parent brought an application for a protection order against the father on behalf of their 8 year old daughter because according to her the father abused the child emotionally, when the father in fact only disciplined the child. The father was trying to make telephonic contact with his daughter for days but the mother frustrated the contact by not answering the phone and replying to his sms messages. When the father eventually did manage to speak to his daughter he disciplined her over the phone for not contacting him. The child burst out in tears and the mother used the incident as the basis for a protection order against the father for alleged emotional abuse of the child. The court granted an interim protection order in the father’s absence and the father was only able to see his child under supervision, previously the father had contact with his child every alternate weekend. A social worker was then appointed as well as a psychologist to investigate. Needless to say the child was dragged through court appearances at the Children’s court.
A child prevented from seeing a parent, they still love will eventually turn the resentment against the one trying to enforce the unenforceable. Parents often fail to comprehend the impact on the children of the conflict in their relationship.
The adults in the child’s life, can make the divorce and separation experience for a child much less harmful by being aware of several ways to help the child:
The child must feel and experience unconditional love from each parent.
The child must feel free of fault for the divorce and separation.
The child must feel that each parent respects the rights of the other parent.
The child must feel that he/she will be okay after the divorce and separation.
The child must feel that each parent will be okay after the divorce and separation.
Children sense and feel their parent’s emotions and especially the parent’s emotions toward one another. During a divorce and separation, adults experience some very strong and difficult emotions. It is difficult for a human being to understand how he/she could have so much love and passion for another person at one point in time, and then later have so much disdain and even hatred for that same person. It is okay for parents to talk to the child about the fact that they don’t love each other any more but the child must hear, sense, and feel that while the parents don’t love each other any more and don’t want to live in the same house, they do respect each other’s rights as a parent to the child. For example, both parents should encourage the child to spend time with the other parent, to respect to the other parent, to obey the other parent, and to love the other parent. This can be very difficult when a parent thinks the other is making poor decisions.
The goal for divorced or separated parents should always be to maintain the best co-parenting relationships possible by moving past previous relationship issues and focusing on children’s well-beings. Conflict within a relationship or marriage where there are children involved or after a divorce or separation is the most harmful thing parents can do for their children’s development. If children go through their parents’ divorce, they have lost some access to both their parents to an extent. If the parental combat continues, the children have not only lost that access, they are still involved in that conflict and it harms children. Focusing on the children instead of the relationship problems can help divorced couples to be better parents, not messed up parents.
Family Law Attorney
Bertus Preller & Associates Inc.
021 422 2461
Is there a duty on children to support their parents?
Children have a responsibility to support their parents and grandparents, but always subject to the rule that support must be claimed from closer relatives first.
The basis of a child’s duty to support parents is the sense of dutifulness or filial piety. In certain circumstances, even a minor child may have to support parents. As always, the criteria of need on the part of the person to be maintained and ability to support on the part of the person from whom support is claimed, must be present.
A parent who claims support from a child must prove his need and the child’s ability to support but a more stringent criterion of need is applied to parents than to children – indigence on the part of the parent is stated to be a condition.
In the case of Smith v Mutual and Federal Co Ltd 1998 4 SA 626 (C) the court emphasized that, to prove need, a stringent criterion of need must be established. For the claimants to succeed, they are required to prove not only that the deceased had provided support, but also their own indigence and inability to support themselves. Indigence is defined as extreme need or lack of the basic necessities of life.
In Oosthuizen v Stanley 1938 AD 322 328 the court referred to “the quality and condition of the persons to be supported”. In the same case, it was pointed out that where a parent must be supported it is not only his own needs but also those of his dependents that must be considered. In Van Vuuren v Sam 1972 2 SA 633 (A) 642 Rabie JA referred to the same criterion, but stressed that the support of parents must be confined to the basic needs, namely food, clothing, shelter, medicine and care in times of illness.
Is there a duty on grandparents to support their grandchildren?
The maintenance obligation towards a child is primarily the burden of the parents of the child. However, if the parents are not capable of meeting this obligation, it is inter alia transferred to the grandparents.
In Barnes v Union and South West Africa Insurance Co Ltd the court ruled:
“It seems clear that there is an order of priority under the common law. ‘If father and mother are lacking or are needy the burden of maintaining grandchildren and other further descendants has been laid by the civil law on the parental and maternal grandfather and the rest of the ascendants.”
Per this text there is a priority upon whom the burden to maintain children falls if the parents cannot maintain them. The burden first falls upon the grandparents, and if they cannot pay, the burden is transferred to the great-grandparents, before brothers or sisters are called on to pay maintenance. It would seem as if the direct line must first be exhausted before the collateral line is engaged for support.
Compiled by: Bertus Preller - Family Law Attorney
Bertus Preller & Associates Inc.
Ground Level, The Chambers, 50 Keerom Street, Cape Town, 8000
Telephone: +27 21 422-2461 or +27 21 422-2573 or +27 21 422-2597
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Can a maintenance order be varied where the parties agreed in a settlement agreement that maintenance will not be subject to variation?
It frequently happens that parties include a clause in a Divorce Settlement Agreement that neither party shall have the right, after divorce, to approach the maintenance court for a variation of the spousal maintenance. Effectively this means that the maintenance may not be increased or decreased.
According to section 8 of the Divorce Act, 70 of 1979 a maintenance order, made in terms of this Act, may at any time be rescinded or varied or, in the case of a maintenance order or an order with regard to access to a child, be suspended by a court if the court finds that there is sufficient reason. The Maintenance Act 99 of 1998 (“the Act”) provides at section 6 as follows:
“6 Complaints relating to maintenance
(1) Whenever a complaint to the effect-
(b) that good cause exists for the substitution or discharge of a maintenance order; or
has been made and is lodged with a maintenance officer in the prescribed manner, the maintenance officer shall investigate that complaint in the prescribed manner and as provided in this Act”.
The Act further provides at section 16(1) as follows:
16 Maintenance and ancillary orders
(a) in the case where no maintenance order is in force--
(i) make a maintenance order against any person proved to be legally liable to maintain any other person for the payment during such period and at such times and to such person, officer, organisation or institution, or into such account at such financial institution, and in such manner, which manner may include that an arrangement be made with any financial institution for payment by way of any stop-order or similar facility at that financial institution, as may be specified in the order, of sums of money so specified, towards the maintenance of such other person, which order may include such order as the court may think fit relating to the payment of medical expenses in respect of such other person, including an order requiring such other person, if the said other person qualifies therefor, to be registered as a dependent of such person at a medical scheme of which such person is a member;
(b) in the case where a maintenance order is in force--
(i) make a maintenance order contemplated in paragraph (a) (i) in substitution of such maintenance order; or
(ii) discharge such maintenance order; or
(c) make no order.
In terms of section 6(1) of the Maintenance Act, a maintenance order (whether in terms of a consent agreement or not) may be varied or discharged if a complainant can demonstrate “good cause” therefore.
In Odgers v De Gersigny  the Supreme Court of Appeal held that where parties have agreed in a consent agreement that the ex-wife shall be maintained for x amount of years and the agreement makes no mention of remarriage or death, the ex-husband will have to continue paying the maintenance if the ex-wife married before the time ran out, as a consent agreement is contractual in nature and parties will be held to their bargain. However, it should be noted that this case was concerned with the interpretation of a consent agreement and not with whether there existed “good cause” to set the consent agreement aside.
In Georghiades v Janse van Rensburg  the court held:
“Generally speaking, our courts except that circumstances must have changed substantially and that it would be unfair to allow the order to stand in its original form before rescission, variation or suspension of an existing maintenance order will be granted. In Havenga v Havenga, Harms J, pointed out that, although, in general, they will not be sufficient reason for the variation or rescission of a maintenance order in the absence of a real change in circumstances, changed circumstances are not a statutory prerequisite and they may sometimes be sufficient reason although circumstances have not changed”.
The validity of a waiver of the right to apply for the rescission, variation or suspension of a maintenance order was for long controversial, the essence of the debate being whether such a waiver was contrary to public policy. Those who have argued that it was, considered the waiver to be undesirable in that it deprived the court of its jurisdiction to rescind, suspend or vary the order. Those who took the opposite view stressed freedom of contract.
The cases of Knight  Gawith  Cillier  and Claasens  concerned agreements between divorcing parties in which one party only waived the right to variation.In Gawith and Claasens such waivers were found to be valid; in Cilliers the waiver was found to conflict with legislation then in force; in Knight Corbett J expressed grave doubts about the correctness of decisions in which such waivers had been held to be valid but considered himself bound by the previous decisions to that effect in his division. He nevertheless found the relevant clause to be undesirable on other grounds.
As a general rule a maintenance order made in terms of the Divorce Act may at any time be rescinded, varied or suspended by a court if the court finds that there is sufficient reason to do so, see Reid v Reid. The application for variation may also be to extend or shorten the period during which maintenance is payable.
In Georghiades Griesel J said as follows:
“ Section 8 of the Act creates an exception to the general rule that an order of court, once pronounced, is final and immutable. It permits the Court, for 'sufficient reason', to rescind, vary or suspend a maintenance order granted earlier. This provision was introduced so as to authorise the Court to amend maintenance orders on good cause shown, so as to enable spouses to come to Court 'to redress injustices occasioned by a maintenance order which no longer fits the changed circumstances'.”
The learned Judge went on to state that each case must be decided on its merits and, referring to case law, drew a distinction between cases relating to a fixed amount payable till death or remarriage and cases where maintenance was payable for a limited period. In this regard the following was stated:
“ Counsel also relied on the cases of Girdwood v Girdwood , Davis v Davis  and Hoal v Hoal . Comparisons were made, inter alia, between relevant clauses of the consent papers in those matters and those of the consent paper in the present matter. In this regard it bears repetition that limited assistance can be obtained from considering the terms of agreements which featured in other cases and that each case must be decided on its own facts".
In Bond v Bond  the court was asked to vary a consent order incorporated in the divorce decree regulating the parties' divorce, the court in the present inquiry, focused on the interpretation of one of the clauses (relating to maintenance) in the order. The respondent contended that the applicant was precluded from obtaining a variation of the consent paper. The court held that a basic principle of interpretation is that a court will always first look to the wording of the terms that had been agreed upon by the parties, and will as far as possible give the language used by the parties its ordinary grammatical meaning. The only circumstances where this situation will be deviated from, is when it leads to inconsistency, repugnancy or an outcome contrary to public policy. Once the literal meaning has been ascertained, then regard must be had to the context in which a word or phrase is used. Regard must also be had to the nature and purpose of the contract. In doing so, the common intention of the parties at the time of concluding the consent paper must be ascertained according to the above mentioned cannons of construction. In this case, the respondent undertook to maintain the applicant "until her death, remarriage or cohabitation in a relationship akin to that of marriage". That was what would constitute the "maintenance period". There was no automatic termination of the maintenance, unless one of those events occurred. In terms of section 8(1) of the Divorce Act 70 of 1979, a maintenance order may be rescinded, varied or suspended at any time if the court finds that there is sufficient reason therefore. The only limitation on the court's power to rescind or vary a maintenance order, is that "sufficient reason" must be shown. The court concluded that the applicant was entitled to apply for an increase as she had.
In Girdwood, supra, the court held that in the case of waiver of a spouse’s right to claim variation of maintenance after divorce, there would have to be a clear indication in the settlement agreement that the spouse was fully aware of the statutory right to claim variation, and that he or she expressly or by his or her conduct waived that right.
In the case of Barkhuizen v Napier  the Constitutional Court found that the proper approach to the constitutional challenges to contractual terms was to determine whether the term challenged was contrary to public policy as evidenced by the constitutional values, in particular, those found in the Bill of Rights. This approach left space for the doctrine of pacta sunt servanda to operate, but at the same time allowed courts to decline to enforce contractual terms that were in conflict with the constitutional values even though the parties might have consented to them.
In the case of Schutte  the Supreme Court of Appeal found that a clause in a settlement agreement that prohibited the parties to approach a court to vary maintenance was not against public policy.
It goes without saying that a non-variation clause may have bizarre consequences for the parties. For example, where a husband becomes unemployed or is sequestrated after a divorce his dilemma will be that he will not be able to approach the maintenance court for a reduction of his maintenance obligations. This in itself can be viewed as against public policy.
It is clear that the court will always be able vary a maintenance order when there is sufficient reason to do so. Although a settlement agreement is contractual in nature it may be argued that since it is impossible to foresee the future circumstances of the parties considerations of fairness and justice should be applied. With that in mind it is submitted that in special circumstances a courts' jurisdiction should not be ousted to vary a maintenance order that simply does not fit in with reality. Settlement agreements are not agreements that are cast in stone. For example, a settlement agreement may deal with the care and contact arrangements of the children and stipulates how contact between the parents and the children should be exercised. As children grow older the essence of the contact also changes as the circumstances evolve, the same can be said of maintenance.
 2007 (2) SA 305 (SCA) at p309
 2007 (3) SA 18 (C) at para 
 1967 1 SA 40 (C)
 1966 3 SA 596 (C)
 1977 1 SA 561 (O)
 1988 4 SA 163 (W)
 Reid v Reid 1991 (1) SA 443 (E)
 At para 13 at page 22
 At para 26 at pages 26 G to 27 C
 Girdwood v Girdwood 1995 (4) SA 698 (C) at 708B
 Davis v Davis 1993 (1) SA 621 (C)
 2002 (3) SA 209 (N) the court also held that if the parties do not specifically exclude their right to invoke section 8(1) of the Divorce Act 70 of 1979, either of them can seek variation of the arrangements regarding maintenance, care or contact they agreed upon in their settlement agreement
  JOL 23915 (C)
 2007 (7) BCLR 691 (CC)
 1986 (2) All SA 70 (SCA)
Compiled by: Bertus Preller - Family Law Attorney
Bertus Preller & Associates Inc.
Ground Level, The Chambers, 50 Keerom Street, Cape Town, 8000
Telephone: +27 21 422-2461 or +27 21 422-2573 or +27 21 422-2597
Facsimile: +27 086 572 8373
When mothers lie about the true identity of the biological father...
A news story broke a few weeks ago informing that the German Justice Ministry drafted legislation which will require mothers in paternity cases to reveal who they had slept with. This move was apparently in response to a court ruling in 2015 in which a man sued his wife after she admitted he might not be the biological father of their child. The man tried to force his wife to reveal to him the name of her former lover, however, the woman successfully appealed to the constitutional court, which then ruled that there was no law in Germany under which the woman was obliged to disclose such information. However, the judge in the case stated in the ruling that that new legislation on the issue would be welcome.
The law when passed will oblige the mother of a child to name “the man who was present at the time of conception”, on the request of a partner or ex-husband who is paying child maintenance and support. In terms of the law a mother would only have the right to remain silent if she had very good reasons not to name the real biological father, and a court would determine whether this was indeed the case. The idea behind such a law is that it will enable a man who has erroneously been paying child maintenance and support to recover what he has paid from the true father of the child.
The law has been named the “Cuckoo Kids’ Law” in the German media, after the German phrase for children conceived in adultery, “cuckoo children”.
So, the question is, will it be a good idea to have such a law in South Africa?
In doing some research it is obvious that paternity fraud is a worldwide problem. For example, it was reported that, in California, there was a 20% chance that a child born to a married couple was not the biological child of the husband and in a contested paternity hearing, there was a 33% chance that the alleged father was not the natural father. A 2005 review of studies into so-called paternal discrepancy published in the British Medical Journal found that the rate was around 4% meaning 1 in 25 children is biologically fathered by someone other than the man who believes he is the father. A study in America found that more than 95% of woman would not tell a man that the child wasn’t his.
It is therefore clear that one can agree on two issues: firstly, that it is best in most cases that a child knows the true identity of his or her father and that a law along the lines anticipated in Germany would reduce that 1 in 25 figure. Secondly, it is unfair that a man is obliged to pay maintenance for a child that is not his, in circumstances where the mother conceals the fact that he is not the father. Once the mother discloses that the man paying child maintenance is not the child’s biological father, then he is no longer obliged to pay, and he can seek reimbursement for the child maintenance that he already paid.
If a mother knowingly conceals the paternity of her child, she could be convicted of paternity fraud. She could be criminally prosecuted, although proceeding in this way this could have a negative impact on the best interests of the child, who loves and cares for his or her mother.
I have been involved in a few matters where fathers mistakenly supported another man’s child. Although there have not been a lot of reported cases on paternity fraud in our law journals the wronged father, the biological father and the child could in fact all have legal claims against the mother.
For example, the father who was deceptively led to believe that he was the father will have a monetary claim against the mother for all the money that he has spent and paid on behalf of the child from birth, which include the child’s education costs, medical expenses and daily living expenses. He will also have a claim for damages against the mother, for pain and suffering caused by pretending that he is the child’s biological father.
The true biological father of a child will also have a damages claim against the mother for intentionally not disclosing that he had a child. The child, who established a healthy father-child relationship with a man who is not his or her biological father also has a claim for damages against the mother.
A woman whose deception is proved in such cases has very little room to manoeuvre. The only defence for such a mother would be that she was not aware that her partner was not the biological father of the child. If she can prove that she was not aware of this fact, it will be very difficult for any damages claims to be brought successfully against her.
Paternity tests are necessary when a mother denies these claims and difficulty arises when the mother of the child refuses to grant a paternity test. This can create huge problems as our law is somewhat unclear in these cases.
The South African Children’s Act confirms in Section 36 a presumption in respect of a child born out of wedlock (parties who were not married to each other). The presumption is that the person whom had sexual intercourse with the mother at any time when that child could have been conceived will be presumed to be the biological father of the child in the absence of evidence to the contrary which raises reasonable doubt.
Section 37 of our Children’s Act states that if a person in proceedings in which paternity of a child is challenged refuses to submit him/herself, or the child, to take blood samples in order to carry out a scientific test to prove the paternity of the child, then a presumption in our law exists in which the failure of such a party to agree to such a test may be used as evidence to prove the contrary. The effect of this section is that it compels a court to warn the person who has refused to have his/her or the child’s blood sample taken ‘of the effect’ which such refusal might have on his/her credibility. The problem is that the section does not go far enough and does not resolve the main issue, namely the truth about the paternity of the child.
A year ago there was a report in the US of twins who was born with different fathers. What happened here was that two eggs from the same mother were fertilised by sperm from two different men during separate acts of sexual intercourse within the same ovulation period. In such a case the presumption mentioned above would not be helpful.
So, in summary as our law stands one cannot be compelled to take a paternity test.
In 2012, a woman was arrested in KwaZulu Natal after a mother told a Durban regional court magistrate that she had handed over R65 000 to the woman who was a Facebook friend she had never met who was supposed to be helping her to manipulate a paternity test. The woman pleaded guilty to five charges of fraud, forgery, uttering, extortion and crimen injuria and was sentenced to 5 years’ imprisonment.
The basis of a paternity matter is that the applicant will have to show that such a test would be in the best interest of the child. In 2010 in the case of YM v LB 2010 ZASCA 106 our Supreme Court of Appeal (SCA) was given an opportunity to provide judicial clarity on the law relating to court-ordered blood testing of potential parents refusing to voluntary submit themselves (and/or the minor child) to such testing, but the Court most unfortunately elected to side-step the issue based on the facts of the matter. The SCA found that where the paternity of the child has been shown on a balance of probabilities, scientific tests on a child should not be ordered. In this matter paternity was not really in dispute as both parties (at various times before the attorneys joined the show) believed that the man in question was the father of the child. The SCA also noted that the rights of privacy and bodily integrity may be infringed if it is in the best interests of the child. However, it confirmed the statement made by a judge in an earlier case that it may not always be in an individual’s best interest to know the truth. The court noted that in some cases it may be justified to order tests, but that the discovery of the truth should not be generalized.
The unreported case of Nel v Jonker (WCHC) case number A653/2009 was the first reported judgment dealing specifically with misattributed paternity. The ex-husband had regarded the child, born four months into his marriage with the mother, as his biological child and had maintained her as such. Only 16 years after the birth, and 10 years after the divorce, did he discover through DNA testing that the child had actually been fathered by another man. The maintenance court varied the divorce order by deleting his (future) maintenance obligations towards the child since he was not the biological father of the child. The court of first instance subsequently awarded damages to the cuckolded ex-husband for the R50 000 that he paid towards the child’s maintenance since the divorce. This order was taken on appeal. On appeal the Judge overturned the damage award that the maintenance court granted to the ex-husband. The Judge found that the ex-husband did not meet all the requirements of the claim, specifically, his error in paying maintenance was found to be unreasonable and that there was no proof that the mother of the child was enriched by the maintenance payments. The reading of the case leaves one with a feeling of dissatisfaction because the set of facts was not ideal to deal with this complex issue, and partly because of the fact that the pleadings and evidence were deficient, making a precedential judgment on misattributed paternity impossible.
Personally I believe that there should be a law in forcing a mother to name the real father of a child if paternity comes into question.
Compiled by: Bertus Preller - Family Law Attorney
Bertus Preller & Associates Inc.
Ground Level, The Chambers, 50 Keerom Street, Cape Town, 8000
Telephone: +27 21 422-2461 or +27 21 422-2573 or +27 21 422-2597
Facsimile: +27 086 572 8373
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The question as to when the value of accrual should be determined in a divorce was finally settled by the Supreme Court of Appeal in the matter of Brookstein v Brookstein.
The issue in this case was whether the value of an accrual should be determined, ie, at the close of pleadings, or at the dissolution of the marriage, either by death or by divorce.
The provisions of the Matrimonial Property Act 88 of 1984 (the MPA) are clear and unambiguous. In terms of s 3 thereof, a spouse acquires a right to claim an accrual at the ‘dissolution of a marriage’. An exception arises in terms of s 8 of the MPA. In terms of this section, a spouse is entitled to approach the court for immediate division of the accrual, where his or her right to share in it at dissolution of the marriage ‘will probably be seriously prejudiced by the conduct or proposed conduct of the other spouse’. It is only then that the date for determination of an accrual is brought forward, instead of at ‘dissolution of the marriage’. Furthermore, in terms of s 4 of the MPA the net value of the accrual of the estate of a spouse is determined at the dissolution of the marriage.
This issue has given rise to dissenting decisions in two lines of cases in the high court. The one view is that the correct date upon which the accrual must be determined is at the stage of litis contestatio, (the close of the pleadings) whereas the other view is that this must be calculated at the date of dissolution of the marriage. In MB v NB 2009 ZAGPJHC 76; 2010 (3) SA 220 (GSJ) Brassey AJ held that although s 3 establishes the moment at which the contingent right possessed by a spouse becomes perfected i.e., at the dissolution of the marriage, it does not establish the moment by reference to which the respective estates of the parties must be assessed. The learned acting judge was of the view that the problem was one of procedure, not substance, and owed its origin to the fact that litigation takes time to complete. In his view, the established principle was that the operative moment was litis contestatio, for that was the moment when the dispute crystallises and can be presented to court for decision. The view in MB v NB was followed in the case of MB v DB  ZAKZDHC 33; 2013 (6) SA 86 (KZD) and KS v MS  ZAKZDHC 43; 2016 (1) SA (64) (KZD).
However, in JA v DA 2014 (6) SA 233 (GJ) Sutherland J correctly pointed out at para 11 that the views of Brassey AJ were obiter and disagreed with the view that the date of the close of pleadings is the date upon which to determine the content and value of the estates. In his view, that date was irrelevant for this exercise and the date of dissolution was the only relevant date upon which to calculate the respective estates. Because the event of litis contestatio was purely procedural, it had no bearing on the definition of, or identification of any alleged right which was the subject of litigation, nor had it any bearing on the determination when, by operation of law, or upon any given facts any right comes into being.
Sutherland J then stated the following at para 17:
‘When, as in this case, a claim is based on the existence of a right and the claim is for a performance measured by value it is not possible to calculate that value at a moment prior to the coming into existence of the right.’
The SCA found that the view of Sutherland J that the time when the right comes into existence is determinative of the calculation of the value of that right is undoubtedly jurisprudentially correct. The court did not agree with the view expressed in Le Roux v Le Roux (2010) JOL 26003 (NCK) which was followed in KS v MS that this conclusion will result in a piecemeal adjudication of issues resulting in further litigation between the parties. This view was based upon the proposition that a litigant would have to engage in two distinct actions. The first would be for a divorce and the second for an order in terms of s 3 of the MPA. The SCA agreed, however, with the view of Sutherland J that it would not be inappropriate to sue for both a divorce and an order pursuant to s 3 of the MPA in a single action, in which the accrual order is made dependent upon the grant of a divorce order.
The SCA further found that the other problems averted to by Brassey AJ and Sutherland J which may result from this determination of the date upon which the accrual must be calculated, cannot obscure what is the clear meaning of the Act. As stated in Natal Joint Municipal Pension Fund v Endumeni Municipality  ZASCA 13 2012 (4) SA 593 (SCA) para 18:
‘Judges must be alert to, and guard against, the temptation to substitute what they regard as reasonable, sensible or businesslike for the words actually used. To do so in regard to a statute or statutory instrument is to cross the divide between interpretation and legislation. . .’
Consequently, MB v NB and MB v DB as well as KS v MS which held that the date for determination of accrual is at litis contestatio rather than at the dissolution of marriage, were wrongly decided.
Bertus Preller studied at the universities of the Free State and Johannesburg. Bertus is also an experienced mediator and arbitrator. He is the author of Everyone's Guide To Divorce and Separation, published by Random House (2013) and he writes regularly on news24.com. He is also the founder of Divorcelaws, South Africa's premier website on Family Law. He is a member of the International Bar Association and serves on the Family Law Committee and the African Regional Forum of the Association.
In this case the question was the question whether a plaintiff, the mother, who appeared in person in a divorce matter, was guilty of contempt of court where the presiding judge gave the mother directions in terms of Uniform Rule 37(8)(c), but she failed to adhere to.
The main issue in the divorce was the care and contact arrangements in relations to the parties’ minor son (the son). The son was living with the mother. At a pre-trial hearing in November 2015 the court directed the mother in terms of r 37(8)(c) to facilitate a meeting with a representative of the family advocate’s office in order to allow the latter to complete an assessment of the son in his domestic environment. The mother failed to adhere to the direction.
The mother was ordered to appear before the present court to answer to charges of contempt of court for her failure to answer to the direction given by the court. In the contempt of court charge the mother was represented by an advocate who appeared amicus curiae. It was argued on her behalf that a direction in terms of r 37(8)(c) is not an order of court and that contempt proceedings were accordingly not appropriate.
Gamble J held that, provided the mother has acted with wilfulness or mala fides, her failure to adhere to the direction given in November 2015 is indeed capable of being addressed through contempt proceedings.
The mother’s assumptions of bias on the part of the representative of the office of the family advocate were manifestly unreasonable in the context of clear directions to participate in the obligatory investigation being conducted by the family advocate.
The court accordingly held that the mother acted in contempt of court. It decided to afford an opportunity to the parties to address the court afresh on the aspect of an appropriate sanction, before handing down such action. The matter was accordingly postponed to a later fixed date.
Baloyi v Baloyi  ZAGPPHC 728:
In this case that concerned a divorce the main issue to be decided was the primary residence of the two minor children born from the marriage between the parties, a boy who of 6-years old and a girl of 4-years. Each party contended that it would be in the best interests of the minor children to reside with them and advanced a number of reasons in support of their contentions.
In this matter the court was faced with a situation where both the Father and the Mother are good, loving parents, who are able to care for their children. Whilst together the Mother was the primary caregiver. Since February 2014 the Father was caring for the children with the assistance of a nanny.
Although the Father and the Mother’s relationship was very acrimonious, no serious allegations were made against each other. The Mother’s concern that the nanny was taking care of the children was not born out by the evidence. The children were at school during the day (until 13:30 and 15:30 respectively) and with the nanny during the rest of the afternoon.
During the evenings the Father took care of the children. The Father also took the children to school. The Mother was a professional woman who was working and studying. The Mother’s further concern was that the children cried because they did not want to go back home to the Father. The Father on the other hand testified that at times the children did not want to visit the Mother.
The court noted that experience had shown that children will often give different versions to different parents in a situation like the present. The children did not want to be separated from either parent and still indulge the hope that their parents would reconcile.
The Father’s concern was that the Mother was not always exercising her contact. The Mother on the other hand testified that the Father sometimes frustrated her contact with the children. The court noted that from the evidence it was not a case of lack of interest on the Mother’s part, but that she was rather worn out by the continued conflict between her and the Father over the children.
The Family Advocate’s concern was that the Mother was not frank and truthful with the children about the divorce, which may have created a false sense of comfort which in turn may have led to instability on the part of the children. The Mother’s aforesaid conduct as well as her failure to contribute towards the children’s maintenance was in the court’s view, indicative of a lack of insight on her part in what was in the children’s best interests. The Mother had furthermore chosen to concentrate on her studies and the court noted that together with any kind of employment, it could have made stiff demands oninter alia her free time. The Father had shown remarkable commitment. He had on the other hand re-arranged his life to best suit the children. He was able to spend time with the children, communicate with them and fulfil the nurturing role.
Experience has shown that the companionship of children’s parents is of inestimable value to the children.
The court was particularly struck by the fond manner in which the Father spoke about his daughter. The children were doing well at school. They appeared to be happy and secure.
The evidence revealed that both the father and the mother were loving and capable parents who were at various stages the minor children’s principal carers. The children were too young to express their own views.
In P v P 2007 (5) SA 94 (SCA) at para  it was held that:
“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 finding of facts in the exercise of its inherent jurisdiction as the upper guardian of minor children…”
The factors set out in Section 7 of the Children’s Act, Act No. 38 of 2005, constitute a non-exhaustive check list of criteria which serve as guides relevant to the application of the best interest standard.
The question of what a child’s best interests are must be determined according to the facts and particular circumstances of each case and not on generalisations such as the “tender age” doctrine or the principle of “preserving the status quo”.
Undue weight should furthermore not be placed upon any one factor, but these factors, like all other relevant factors, must first of all be considered against the backdrop of the specific circumstances of each case and secondly weighted against all other relevant factors to be considered in determining what would be in the best interests of the child.
The Constitutional Court in AD & DD v DW  ZACC 27; (2008 (3) SA 183 (CC) held that:
“To apply a pre-determined formula for the sake of certainty, irrespective of the circumstances, would in fact be contrary to the best interest of the child concerned”.
In her work, “Divorce mediation and the best interest of the child” Lesbury van Zyl on p 67 makes the following remarks in respect of the principle of preserving the status quo:
“Judges, being aware of children’s need for security and stability, are reluctant to move them and so cause them further distress than the family break-up has already occasioned. However, this is not always a wise policy, for it means that permanent custody is often awarded on the basis of an arrangement made when the parents were in turmoil and least able to make reasonable decisions. Here too, as with the maternal preference rule, the lawyer’s knowledge of the strong influence of the status quo may influence the advice they give their clients. Besides, if parents, who have temporary custody realise that they are in a superior bargaining position, they may try to delay proceedings, since the longer they have temporary custody the stronger their position, become.”
Sweeping statements such as young children should reside with their mothers and/or contact with their fathers should be restricted to short periods of time, are untenable.
Ordinary human experience tells one that the continued involvement, companionship, love and support from both father and mother after separation and divorce, enhances a child’s sense of security.
In Chodree v Vally 1996 (2) SA 28 (W) at 32 F-G/H it was held that: “… love and affection from both also enhance the security and stability of a child…”
The Court should further not only take a short term view of the possible unsettling effects occasioned by any change in the children’s lives, but also consider the possible long term benefits to be obtained in each specific case.
Divorce inevitably occasions change in the lives of children such as adjusting to the daily absence of one parent, while living with the other and going back and forth between two different households. Each individual child also responds differently towards a divorce.
In M v M 1973 (2) All ER 81 (Fam Div.) 85 it was held that:
“Where the parents have separated and one has the care of the child, access by the other often result in some upset in the child. Those upsets are usually minor and superficial. They are heavily outweighed by the long term advantages to the child of keeping in touch with the parent concerned so that they do not become strangers, so that the child later in life does not resent the deprivation and turns against the parent who the child thinks, rightly or wrongly, has deprived him, and so that the deprived parent loses interest in the child and therefore does not make the material and emotional contribution to the child’s development which that parent by its companionship and otherwise would make.”
There is further no doubt that over the last number of years the roles and responsibilities of parents within the family structure as well as social norms and patterns have changed.
Fathers have also taken up parenting roles, and mothers have also followed careers. The norm these days is rather that of working parents who manage with the assistance of aftercare, domestic workers and family.
It was held in Van Pletzen v Van Pletzen 1998 (4) SA 95 (O) at 101 B-D/E that mothering is not only a component of a woman’s being, but is also part of a man’s being, and that a father, depending on the circumstances, possesses the capacity and capability to exercise custody over a child as well as a mother.
In Van Der Linde v Van Der Linde 1996 (3) SA 509 (O) at 515 it was held that the concept of mothering is indicative of a function rather than a persona. It includes the sensitive attachment which flows from the attention devoted from day to day to the child’s need of love, physical care, nutrition, comfort, peace, security, encouragement and support.
In V v V 1998 (4) SA 169 (C) at p176 it was held that:
“The old position where the custody of young children was invariably granted to mothers has change. As far as young children are concerned, the pendulum has swung to accommodate the possibility of a father being a suitable custodian parent to young children.”
Therefore primary residence and contact were not to be given on preconceived notions, assumptions or judicial preferences but must be the result of a well-considered decision based on an individual and full investigation.
Parents who abandon their children
It comes as no surprise that the deadbeat dad, the fully-grown man, who, having had his fun, abandons his responsibilities towards his children.
As South African family life changes, fatherhood is shifting in important and sometimes amazing ways. Today, fathers who live with their children are taking a much more active role in caring for them and helping out around the house.
The ranks of stay-at-home fathers and single fathers have grown considerably in recent decades. At the same time, more and more children are growing up without a father in the home.
What one must never forget is that it is not really the parents who have rights it is the children who have the rights to have a meaningful relationship with both their parents. Parents have responsibilities to their children, these responsibilities are enshrined in law. The sad reality is that too many people flout these responsibilities and do not put their children first when a relationship ends. This means the children then become the pawns in a game to hurt the other person. Many fathers and mothers I have worked with know or have been subjected to terrible allegations of abuse and violence towards their former partners and their children all in the name of hindering them from seeing their children to hurt them. Sadly is it is always the children who lose out every time.
There are many real stories about children who have been “left” with their mother after a divorce or separation. Often these fathers abandon the family and leave all the responsibilities to the mother or her new partner to care for his children. I am in such a situation. I care for two lovely children who have been abandoned by their father who they have not seen for more than 8 years with no emotional support and no maintenance, for the past 8 years I raised them as my own and I am proud that they call me dad.
Research has found that serial fathers who leave their homes and go on to start a second family are the men most likely to lose contact with their children. More than 1 in 5 men in the UK who live with second families never meet their children born during earlier relationships, according to research. Less than 1 in 12 fathers in the survey said that they see their children from their first family every day and nearly one third said they do not have a close relationship with them. According to the survey, 129,000 fathers did not have any contact with their children and 300,000 did not pay any maintenance to their former families. The study underlined concerns over the impact on children in single-parent families over the lack of men in their lives. In the UK a million children live in ‘men deserts’, in families without fathers and in neighbourhoods and schools where they rarely meet an adult male. Another survey found that nearly one million men have children they do not live with, around one in 20 of all fathers.
But it is not only dads who flout their responsibility towards their children since studies had shown that about the same percentage of mothers who did not live with their children paid all the child maintenance they owed as dads who didn’t. A recent research paper in the United States suggested that toddler dads are not quite as useless as the numbers and their popular image would imply.
According to a study, which appeared in the Journal of Marriage and Family, in the United States it was found that many fathers who didn’t pay child support in cash, nevertheless made a substantial contribution in kind towards their children. Almost 50% of the fathers in the study who were cash-poor nonetheless tried to contribute in other ways for example by providing baby products, food and clothing and school expenses.
Many people believe that a person can never lose their rights and responsibilities over a child. While a person may have parental rights and responsibilities in respect of a child, the extent of such rights and responsibilities may be altered if it is in the best interest of the child. Section 28 of the Children’s Act, 38 of 2005, provides that an application may be made for an order to terminate, extend, suspend or restrict the parental rights and responsibilities of a person.
Over time, the circumstances surrounding a child can change and may result in many of the child’s interests being neglected or improperly catered for. Occasionally the circumstances have materially transformed to such an extent that a person’s right or ability to properly give effect to their parental rights and responsibilities, in a manner that is in the best interests of the child, are doubtful. It is therefore that the legislature introduced Section 28 of the Children’s Act.
An application in terms of Section 28 may be launched to suspend a person rights for a period;
A Section 28 application may be launched by the following persons:
It is also significant to note that where a Section 28 application is launched by a person who has no parental rights and responsibilities, that person can also launch an application in terms of Section 23 to have rights of contact and care granted to them.
When considering an application in terms of Section 28 the court must take the following into account:
As every decision affecting a child must be made in the best interests of the child, it follows that the persons having the rights and responsibilities in respect of a child must exercise them in a manner that is in the child’s best interests. If they do not, the law provides for a mechanism to prevent any potential harm or neglect to the child’s best interests, among other things in the form of a Section 28 application to have a persons’ parental rights and responsibilities terminated, suspended, extended or limited.
Do not reproduce if you do not intend to be the best parent alive.
Statistics suggest that close to 98% of divorces settle out of court. For the unlucky few who can only obtain finality and closure with the aid of attorneys, lawyers and judges, the journey is long, tortuous, and expensive. A divorcing husband who claimed his wife’s attorney ran up its legal bills with unnecessary discovery and irrational legal claims won’t be able to pursue his lawsuit alleging fraud and breach of fiduciary duty a Supreme Court in the USA found.
The husband alleged the litigation strategy of his wife’s attorney was to “build its fees and harass and injure” him by “pursuing unreasonable legal positions, demanding extensive and unnecessary discovery, promoting and claiming outrageous asset valuations, raising claims without proper foundation … and billing excessive time.”
The attorneys had billed $800,000 in legal fees in a marital estate worth about $15 million. The husband contended that the attorney had an improper motive to engage in protracted and vexatious litigation to build fees that would be paid through the marital estate.
The Supreme Court said the husband failed to establish elements of a fraud claim and that he also failed to establish that he acted in reliance on a misrepresentation of material fact. The husband’s breach-of-fiduciary-duty claim failed because an attorney owes no duty to an adverse party, the court said. The husband argued that the attorney owed a duty to the marital estate, but the argument had no merit, the court said.
The case, although conducted in the USA brought vital issues to the forefront of the legal community globally, including how law firm practices and policies that result in excessive billing impact on both parties to a divorce, deplete resources from marital estates, and compromise the integrity of the judicial process in this area of family law.
While one may be disappointed by the decision, the case brought light to a serious problem facing litigants, attorneys, and our courts.
As a family law attorney one’s goal with any client should be a favourable and cost-effective outcome. The prime hindrance to such a goal is the attorney who litigates to litigate, files applications of no potential value, seeks unnecessary discovery of remote or irrelevant information, encourages animosity and hostility, and drives up the costs to the attorney's benefit, and to the parties' detriment.
The problem is huge in family law, because the clients are unsophisticated legal consumers, are scared and/or angry, and can be easily convinced of the need to declare war. These are the same attorneys who dump a client when he or she is tapped out and can't fund the circus litigation anymore.
The recent case of Paterson v Chinn and Another (14057/2014)  ZAKZDHC 73 concerned the relocation of two children with their mother from the South Africa to the UK. The court ruled that the children would have a better life with their mother in the UK than to remain with their father in South Africa.
The applicant (mother) in terms of section 18(5) of the Children’s Act 38 of 2005 (the Children’s Act) sought inter alia; an order authorising her to relocate with minor children; [J……] [M…..] [C…….], a boy born on 11 October 2009 and [J…..] [J……] [C….], a girl born on 21 June [2……], to the United Kingdom (UK), on permanent basis, and consent to obtain South African passports on behalf of the said minor children.
The aforesaid minor children were born out of love relationship between the applicant and respondent (the father). The parties were co-holders of full parental responsibilities and rights in respect of minor children, as contemplated by section 18(1) and (2) of the Children’s Act. The children were primarily residing with the applicant subject to the respondent’s right to maintain contact with them on reasonable basis. The respondent made monthly contribution to the maintenance of the minor children in the amount of R2000 per child. The applicant had the intention to settle in UK for an indefinite period. In terms of section 18(3)(c)(iii) and (iv) of the Children’s Act the consent of the non-custodian parent is required for the departure or removal of minor children from the Republic of South Africa and for the children’s application for the passports.
The respondent refused to grant the required consent and his refusal was mainly grounded on that the applicant had not properly investigated the practicalities of her decision as she inter alia had no structured plan for the proposed relocation. The respondent averred that the entire relocation application was based on nothing more than speculation and uncertainty in the hope for a potentially better life in England, when currently the applicant and minor children lived a good stable life in South Africa. According to the respondent, the application was neither bona fide nor reasonable. The respondent brought a counter-application for an order arranging his contact with minor children. However, it was agreed between the parties that it was not necessary to deal with such counter -application since the relief sough therein by the respondent was adequately covered in the applicant’s Notice of Motion.
As indicated above, the minor children were born out of a love relationship between the parties which was not legitimised by subsequent marriage. There was no parenting plan and nor was there a court order setting out the respondent’s specific rights of contact. However, the Family Advocate was been directed to hold an enquiry and submit a report pertaining to the best interests of the minor children in relation to the relocation application. The Family Counsellor had also submitted a report in this regard. Both the Family Advocate and the Family Counsellor in their reports stated that it would not be in the best interest of the minor children to grant the applicant leave to immigrate with the minor children to UK.
The applicant intended to relocate with the minor children from the Republic of South Africa to the UK, England, on permanent basis, before the commencement of the new school year which commence in September 2015.
The love relationship between the parties developed some time before 2007. However, the parties engaged in December 2007 and according to the applicant such relationship was due to the respondent’s alcohol abuse mendacity and infidelity terminated in June 2012. Hence, the parties officially separated in March 2013. As the respondent was at the time the minor children were born living in a permanent life partnership with the applicant, he thereby acquired full parental responsibilities in respect of both minor children.
Since March 2013 the minor children had been in the care of the applicant and primarily resided with her. However, the respondent maintained contact with the minor children since June 2013. After separation with the applicant, the respondent moved in with one someone else during March 2013 and they got married in June 2013 the same year.
Prior to her engagement to the respondent the applicant had lived and worked in England for eight (8) years. However, since her return to South Africa from England the applicant had been retrenched twice, in May 2010 and she remained unemployed for nine (9) months, and, second, in June 2013, and she was out of employment for five (5) months. This was the position despite that she attended numerous employment interviews, all was in vain. For eight years that she resided in England, the applicant had never been out of employment.
The applicant grew up in South Africa and her father had a British citizenship. The applicant started thinking of relocating in March 2013 since she was then a single mother. Pursuant thereto, in January 2014 the applicant started investigating employment opportunities in England and making school arrangements for the minor children. The applicant approached various recruitment agencies in England with the intention to ascertain whether with her qualifications and experience she would be able to secure employment. The applicant stated that without having determined dates for her arrival in England, it was not possible for her to obtain offers of employment. However, she had allegedly been advised that there were vacancies in the area where she intended relocating to, and for which she was suitably qualified.
The applicant was employed as a sales executive (representative) earning R22 576 and she had been so employed since 2013. She did not have any tertiary qualifications. According to the applicant in her current position there was no room for further promotion or development. She had found it difficult, if not impossible, for her to find higher income earning positions in South Africa and it was against this background she had chosen to investigate options in England. She thought that relocating to England would have helped to improve her earning capacity which would, in turn, enable her to maintain and provide for the minor children.
She intended to relocate to Chorley area in England where her brother resided. The latter offered to provide her with a support structure until such time she found employment and accommodation. The respondent refused to discuss with the applicant the reasons for the proposed relocation, and, as a consequence he refused to give his consent thereto. She found it impossible to relocate alone leaving the minor children with the respondent, as their primary care giver. She stated that the respondents though he loved the children he did not adequately fulfil his parental responsibilities and rights in respect of them. This, according to the applicant, was largely due to his sporadic contact with the minor children and his failure to spend quality time with the minor children while they were in his care. The respondent consumed alcohol in excess, and he took the minor children to adult venues such as pubs and bars. The applicant stated that to be separated from the minor children indefinitely would have a severe negative impact on the emotional and psychological well – being of the minor children as well as of herself. Her children were her first priority and she did everything within her power to see to it that they were brought up in a safe, loving and stable home environment.
The applicant stated that it was in the best interests of the minor children that she remained their primary care giver and that their primary place of residence remained with her. For the children’s upbringing the applicant heavily relied on the support and assistance of her parents, both financially and physically. Her parents assisted with caregiving and transporting of the minor children to various activities. The minor children enjoyed a close bond with their maternal grandparents and spent time with them three to four times a week. The applicant averred that if she was not be allowed to relocate with the minor children to England, they, the children, would be deprived of the close relationship they enjoyed with the grandparents and, the applicant would be deprived of a substantial support system. The children had no contact with their paternal grandparents.
The respondent alleged that the applicant’s decision to relocate was not bona fide, reasonable and genuinely taken. His ability to spend time with the children was going to be severely curtailed and his rights in this regard virtually nullified. The respondent claimed to be a South Africa by heart and so the children. He did not want them to be raised in England, in his absence. The respondent averred that the applicant had a good life in South Africa. Her career had grown exponentially over the years and by no means was she struggling financially. She had a stable employment and earned a salary almost double to that of the respondent though she possessed no tertiary education. This had not hampered her in any way in her career. In England the applicant was going to share a house with someone though temporarily, whereas in South Africa she lived in a two bedroom house. According to the respondent the applicant lived a better life in South Africa then she did in England before. In respondent’s submission the applicant’s allegation that she would have a better life in England were simply unfounded and speculative at best. It was not certain that the applicant would find better suitable accommodation in England. As a consequence, the respondent submitted that it was therefore not in the best interests of the minor children to relocate to the UK.
The issues for decision by the court were whether:
1. The applicant’s decision to relocate to England is bona fide, reasonable and genuinely taken;
2. It was in the best interests of the minor children to emigrate with the applicant to England.
In the case of Jackson v Jackson 2002(2) SA 303 (SCA) the judge said:
“…It is no doubt true that, generally speaking, where, following a divorce, the custodian parent wishes to emigrate, a Court will not lightly refuse leave for the children to be taken out of the country if the decision of the custodian parent is shown to be bona fide and reasonable. But this is not because of the so-called rights of the custodian parent; it is because, in most cases, even if the access by the non-custodian parent would be materially affected, it would not be in the best interests of the children that the custodian parent would be materially affected, it would not be in the best interests of the children that the custodian parent be thwarted in his or her endeavour to immigrate in pursuance of a decision reasonably and genuinely taken ….”
The court stated that whether the proposed move was in the best interest of the child, the court had to consider the custodian parent’s interests, the reasonableness of his or her decision to relocate, the practical and other considerations on which the decision is based, and the extent to which he or she had properly thought through the advantages and disadvantages to the children of the propose move. This was the position in the case of F v F 2006 (3) SA 42 (SCA) at p 50C-D.
In the case of Edge v Murray 1962(3) SA 603 (WLD) the Judge said:
“It is true that the custodian parent generally has the right to regulate the child’s life and determine such matter as the place where it should live and the school which it should attend, and any changes that should from time to time be made in those respects, and the court will not interfere with the exercise of that discretion if the custodian parent acts bona fide in what he or she believes to be the best interest of the child.”
Following her separation with the respondent in March 2013 the applicant had to raise the minor children single handily and secured accommodation for herself and children. Since she could not afford a two- bedroomed house she moved in with her parents. She and her two minor presently occupied a bedroom at her parental homestead. In May 2013 she was retrenched from her employment and as a consequence she was out of employment for five (months). During the period of her unemployment she was supported by her parents, both financially and physically. The children had a very close bond with their maternal parents. These were the people who provide the applicant with a support system. On the other hand, the respondent had undertaken to pay for a caregiver, to look after children and he failed to honour such an undertaking. Further, there had been a short payment of maintenance by the respondent and in which event the applicant’s parents had to step in and assist her with the support of the children. As a result, the applicant relied on her parents for financial support. According to the applicant it had been agreed between the parties that the respondent would pay R6, 448-50 towards maintenance. However, during the applicant’s period of unemployment the respondent reduced the agreed maintenance to R3, 838 which put the applicant under severe financial strain. The respondent was in terms of the agreement obliged to pay R6, 448-560 towards maintenance for the two minor children yet he only paid R4, 250 per month.
The applicant was employed as sales representative (representative) and earned R22 576 plus R4000 contributed by the respondent towards the maintenance of the minor children of the parties. However, the applicant stated that with such amount of money, the maintenance amount inclusive, she was not managing to make the ends meet. Her monthly expenses were running at R31 245, leaving a shorty fall of R4669. This raised fear in the applicant that as the years go by the expenses to maintain the minor children would increase to a level where she could not afford to provide for the children. She therefore found herself being forced to consider and explore other opportunities in order to increase her earning capacity so to be able to sustain herself and minor children. In South Africa the applicant was unable to increase her earning capacity due to her limited educational qualifications. The applicant’s parents were retired and they wished to relocate to the UK and the direct consequence of the intended relocation was that the applicant would no longer have any support system.
The court was of the opinion that the decision made by the applicant to relocate could not be faulted and that its bona fides could not be doubted. Instead, in the Judge’s view, it was a rational and well – balanced judgment as to what she considered to be best for her and children. The Judge also took cognisance of the fact that the applicant had also taken into account the access the children would have to their father and that she was willing to have such contact continued. The applicant even proposed that the respondent could suspend his monthly contribution towards the maintenance of the children so to save for the air tickets for the respondent’s and the minor children’s visits. As the custodian of the minor children, the court was of the opinion that the applicant had given mature and rational thought to the matter and exercised a value judgment as to where their best interests are. This was in line with the view expressed in the matter of Godbeer v Godbeer 200(3) SA 976(WLD).
The over-riding considerations whether the children’s interests would be best served by permitting their removal from the country. Section 28(2) of the Constitution of the Republic of South Africa 1996 enshrined the principle that:
“a child’s best interests are of paramount importance in every matter concerning the child.”
This was also confirmed in the matter of Minister of Welfare and Population Development v Fitzpatrick 2000(3) SA422 (CC) at P428C.
Section 9 of the Children’s act provides:
“In all matters concerning the care, protection and well-being of a child the standard that the child’s best interest is of paramount importance, must be applied.”
It is common cause that the applicant was the custodian parent in the present case. Myriad duties flow from custody, including the duty to provide the child with accommodation, food, clothing and medical care, the duty to educate and to train the child, the duty to maintain and support the child, and a duty to care for the child’s physical and emotional well-being. The court referred to the matter of J v J 2008(6) SA 30(C) where it was held that the custodian parent generally has the right to have the child with him or her, to regulate its life and to decide all questions of education, training and religious upbringing. This was also stressed in the matter of Calitz v Calitz 1939 AD 56 and Van Oubenhove V Gruber 1981(4) SA 857 (A).
The courts have over the years demonstrated that a custodian parent enjoys a broad discretion to act by their reluctance to displace his or her authority, this was confirmed in the matters of Edwards 1960(2) SA 523(D); Edge v Murray 1962(3) SA 603(W); Meyer v Van Niekerk 1976(1) SA 252(T); Bestuursligaam Van Gene Loow Laerskool v Roodtman  2 All SA 87(c); J v J case, supra.
The court said that in deciding whether the applicant as the custodian parent in this case should be allowed to relocate with minor children to UK, the minor children’s best interest must undoubtedly be the main consideration. What is actually in the child’s or children’s best interests depends on the facts of each particular case. See Lubbe v Du Plessis 2001(4) SA 57(C); F v F 2006(3) SA 42 at D 166E SA42 (SCA) at P 47E-F.
The judge was of the view that in deciding whether or not relocation would be in the child’s best interests, the court had to evaluate, weigh and balance a myriad of competing factors including the child’s wishes in appropriate cases. See F v F, supra, at P48c. In order to provide guidance in this regard the Legislature incorporated in section 7 of the Children’s Act a comprehensive check list of factors according to which the court can determine, on the facts of each individual case, what will best serve the interests of the child or children concerned:
“7. Best interests of child standard –
(1) whenever a provision of this Act requires the best interests of the child standard to be applied, the following factors must be taken into consideration where relevant, namely-
(a) The nature of the personal relationship between –
(i) The child and parents, or any specific parent; and
(ii) The child and any other care-giver or person relevant in those circumstances.
(b) The attitude of the parents, or any specific parent towards -
(i) The child; and
(ii) The exercise of parental responsibilities and rights in respect of the child;
(c) The capacity of the parent, or any specific parent, or of any other care-giver or person, to provide for the needs of the child including emotional and intellectual needs.
(d) The likely effect on the child if any change in the child’s circumstances including the likely effect on the child of any separation from
(i) both or either of the parents; or
(ii) any brother or sister or other child or any other caregiver or person with whom the child has been living;
(e) the practical difficulty and expense of a child having contact with the parents, or any specific parent, and whether that difficulty or expence will substantially affect the child’s right to maintain personal relations and direct contact with the parents, or any specific parent, on a regular basis;
(f) the need for the child –
(i) to remain in the care of his or her parent, family and extended family; and
(ii) to maintain a connection with his or her family, extended family, culture or tradition;
(k) The need for a child to be brought up within a stable family environment and, where that is not possible, in an environment resembling as closely as possible a caring family environment,-
(l) …. ”
The question which ultimately had to be decided was whether it was in the best interests of the minor children to emigrate with their mother to UK, leaving their father back in South Africa or whether their interests would be better served by the retention of the status quo, with the children spending more or less equal time with each parent. The court expressed the view that a child’s future should be balanced against the great benefits to be obtained if the child does not emigrate with a custodian parent to foreign country. However, according to the Judge, a non-custodian parent does not lose the right to reasonable access simply because the children have been removed from the jurisdiction. Accordingly, the Judge took the view that should the court found that the interest of the children would be best served by allowing the applicant to emigrate with them; it would be competent for the court to define the respondent’s rights of access before the removal of the children. See also Botes v Daily and Another 1976(2) SA 215(N) at p220H.
In the case of Du Preez v Du Preez1969 (3) SA 529(D), the court had the following to say:
“this is not to say that the opinion and desires of the custodian parent are to be ignored or brushed aside, indeed, the Court takes upon itself a grave responsibility if it decides to override the custodian parent’s decision as to what is best in the interest of his child and will only do so after the most careful consideration of all the circumstances, including the reason for the custodian parent’s decision and the emotions or impulses which have contributed to it.”
See also Baily v Bailey 1979(3) SA 128(A).
The applicant’s concern was that her lack of relevant educational qualifications would eventually render her unable to provide for her children, if she had to remain in South Africa. This concern arose from the fact that where she was currently employed there were no prospects of development and ultimately promotion. As a result her chances of improving her earning capacity were virtually nil, and so was the chances of finding alternative employment due to her lack of relevant qualifications. Whereas in England she would qualify for various jobs. To the contrary, the respondent submitted that the applicant’s intended relocation to England was based on hope and expectation of a potentially better life in England, with her minor children without their father, when they currently enjoyed a good life with their father. Further, the respondent expressed unhappiness about his children living with the applicant’s brother until the applicant found employment and accommodation and he stated that that would be extremely disruptive to the minor children though he did not disclose what type of disruption was anticipated. Further, the respondent stated that his son was at a crucial stage as he was five (5) years old and he needed his father and that it would not be adequate for him (the respondent) to visit his children on one occasion.
The respondent claimed to have a very stable employment which allowed him to provide for his children. Surprisingly, to the court, the respondent was failing to make the contribution agreed upon between the parties towards maintenance in the amount of R 6 448.50. Nor, according to the Judge did he state that he would increase his contribution towards the maintenance of the minor children. There was nothing, according to the court to show that he made any provision for the children. His statement was that he was earning R12 000.00, and R4000 of which he paid towards the maintenance of the minor children. This, in the court’s view, was indicative of the fact that the respondent were not able to increase his contribution towards the maintenance of the children. Nor could he make any provision for the care, wellbeing, welfare and the future of the children. Though the applicant averred that the respondent generated a substantial amount from the sale of snakes, the respondent concern was that that his children would essentially grow up without a stable father figure in their lives. He wanted to see his children on continuous basis and watch them grow up in front of him.
The respondent further stated that the applicant’s parents were now retired and that there was no evidence to show what their financial condition was. According to the applicant both her parents had their pensions and were, therefore, in a financial position to assist her should it become necessary. In the respondent’s submission the entire application was based purely on speculation and hope and she had not secured accommodation, employment, schooling and forensic psychologist report on the best interests of children.
The applicant on the other hand, stated that she was battling to find a good school for the children. The school fees were bewteen R2200 and R2375 per child. The respondent had not paid towards school uniforms, stationery and extra medical bills over the past years. Her parents were continuously meeting her financial short falls. The children were not on a good medical aid – they were only on a plan which she was not able to afford. She could not afford a two-bedroomed apartment for herself and children. As a result, she had to move in with her parents. She had to pay R6000 for a two-bedroomed apartment. She reached her ceiling career wise in South Africa and it would be difficult to improve. In UK she would be financially better off than in South Africa. She would earn between 24 and 30, 000 pounds. She had worked in England for 8 years. All her family would relocate to England. One of her brothers had already been in England for 12 years. He was employed as a car sales manager. Her parents and the other brother would also soon relocate to England. The applicant did not have any tertiary education and this hampered her ability to obtain lucrative employment. Not having their grandparents within close vicinity was certainly not in their best interests.
In response to the respondent’s endeavour to exercise his rights of contact with the children the applicant stated that in order for the respondent to maintain regular “face to face” contact with the minor children he could Skype them, at least twice a week. However, the respondent rejected this proposal and argued that he had a close relationship with his son and he will not be able to maintain this relationship if the applicant took the child out of the country. He stated further that he would like to teach his son his ways and habits, such as hunting. The respondent also rejected the applicants’ proposal that in order to be able to purchase an international travel air tickets and accommodation for himself when visiting the children in England and the children visiting him in SA, he must suspend his monthly contributions towards the maintenance of the minor children. She also undertook to pay her costs of her travel and accommodation when accompanying the children during their visit to SA, so to ensure the safety of the children.
The Family Advocate recommended that the children remain resident in the Republic of South Africa, and not relocate to the United Kingdom. The minor children should continue primarily residing with the applicant, on condition that the applicant remained resident in South Africa for so long as the children were residing with her. The Family Advocates recommendations were based on that the applicant had not yet secured any employment in England, and that she made application on the assumption that she would easily find employment because of her qualifications. Although the applicant claimed that both her parents and brother who live in South Africa would also relocate to England, all these family members, according to the Family Advocate, would have to rely on her brother who was employed as a salesman in England for support, in addition to herself and children. None of these family members according to the Family Advocate had settled there or secured employment. The Family Advocate went on to say that although the applicant was of the opinion that the younger children found it easier to adapt to new circumstances, the opposite could be said: children in the age group three to six years find it difficult to maintain a long distance relationship with a parent, especially the girl who required physical handling and care to form an attachment with the parent. Both children became attached to the respondent, despite the fact that contact was previously sporadic. Children develop and assimilate their parents’ heritage and culture, as well as traditions. Two of the children were both at the developmental stage, where they were still exploring their environment as points of reference. Granting consent for the applicant to relocate to England with the children according to the Family Advocate would deprive them of this learning experience in their personal development because they would only have their mother’s environment as point of reference on an on-going basis. There were other alternatives the Family Advocate said, for the applicant other than relocating to England. She was gainfully employed in South Africa and there could still be career opportunities for her ahead, as she had been with the current company for a period of one and half years. There was therefore no real urgency for her to relocate to England.
The Family Counsellor was also of the opinion that the applicant did not have sufficient reasons to deprive the children of their right to have an on-going relationship with the respondent by means of regular and frequent physical contact. The Family Counsellor concluded by saying that it stood to reason that the relocation to England would therefore not be in the children’s bests interests. Accordingly, the Family Counsellor recommended that the applicant’s application to relocate to England be dismissed. It was argued on behalf of the respondent that the Family Advocate was invariably a qualified lawyer with sufficient experience and expertise to enable him or her to give the court extremely valuable assistance in coming to a decision. The primary purpose in appointing the Family Advocate was to identify and establish what is in the best interests of the child or children concerned. Both the Family Advocate and Family Counsellor allegedly weighted and evaluated all the relevant facts and circumstances pertaining to the welfare and interest of the minor children.
According to the Respondent an expert witness is there to assist the court. If he or she is to be helpful he or she must be neutral. The evidence of such witness is of little value where he or she, is partisan and consistently asserts the cause of the party who calls her.
The court pointed out that the reason for the Family Advocate’s recommendations were that the applicant had not secured employment in England. The evidence however showed that the applicant had earlier on been employed in England for a substantial period of time (eight years). The agency also assured her employment opportunities in the area she intended relocating to and for which she would be suitable qualified. As support thereto, the applicant attached a copy of an email from an Employment Agency. Further, her brother and her parents were prepared to provide a backup support system to her and children. The respondent conceded that there was nothing to suspect that the applicant may not find suitable employment in England and be in a much worse position than she currently was to the detriment of the children.
The court pointed that there was evidence by the applicant that her parents had their own pensions and there was absolutely nothing to suggest that her brother who also intended to relocate to England would depend on the other brother, who was already in England, for accommodation and support. With regard to the adaptability of the minor children to the new environment, no evidence had been tendered to show that the Family Advocate was qualified to make such an opinion without the assistance of an expert report in this regard. Lastly, according to the court the Family Advocate based his conclusion on that there were other alternatives for the applicant other than relocating to England. However, he did not state what those alternatives were. The applicant had categorically stated that she had reached a ceiling in her career wise and there were no chances for her to increase her earning capacity due to her lack of relevant educational qualifications. All this, in the court’s view, demonstrated quite clearly that both the Family Advocate and Family Counsellor did not approach this matter with an open mind, weigh and evaluate all the relevant facts and circumstances pertaining to the welfare and best interests of the children, let alone applying their minds to the issues raised in this matter.
The court carefully weighed and balanced the reasonableness of the primary caregiver`s decision to relocate, the practical and other considerations on which such decision was based, the competing advantages and disadvantages of relocation, and finally how relocation affected the child’s relationship with the non-primary giver. In essence, the court weighed and evaluated the circumstances impacting directly and immediately to the basic care, well-being and the education of the minor children. To do this balancing exercise, fairly and correctly the court had to be apprised of all the relevant information. Equipped with this information, the court balance the interest of the minor children remaining in South Africa, where their father had easy access to them, against the risks to the minor children of not getting appropriate care and adequate education in the country where they relocate to. In the exercise of her parental responsibilities and rights, the court stated that the applicant, as a custodian parent, had a broad discretion to choose where to reside with the minor children. However, the court stressed that such a discretion should be exercised subject to the limitation that the responsibilities and rights in respect of the minor children must, at all times, be exercised and performed in the best interest of the children.
The court referred to the matter of F v F, supra, where the court held:
“From a constitutional perspective, the rights of a custodian parent to pursue his or her own life or career involve fundamental rights to dignity, privacy and freedom of movement. Thwarting a custodian parent in the exercise of these rights might well have a severe impact on the welfare of the child or children involved. A refusal of permission to emigrate with a child effectively forces the custodian parent to relinquish what he or she views as an impotent life-enhancing opportunity. The negative feelings that such an order might inevitably evoke are directly linked to the custodian parent`s emotional and psychological well –being. The welfare of a child is, undoubtedly, best served by being raised in a happy and secure atmosphere. A frustrated and bitter parent cannot, as a matter of logic and human experience, provide a child with that environment.… Courts must properly consider the impact on the custodian parent of a refusal to remove a child insofar as such refusal may have an adverse effect on the custodian parent and in turn the child.”
The court said that in determining what is in the best interest of the child a court must decide which of the parents is better able to promote and ensure their physical, moral, emotional and spiritual welfare. This can be assessed by reference to certain factors or criteria set out in section 7 of the Children’s Act.
The court stressed the point that the applicant had to demonstrate that the minor children’s care, well-being and education would be better provided (better off) in UK as compared to South Africa: As a single woman with two minor children in South Africa the judge remarked that the applicant had numerous safety concerns and that her safety and of her minor children were, obviously, her source of concern and anxiety in her life. The applicant stated that in England she and her minor children would have safe environment.
On the applicant’s submission should she be forced to remain in South Africa, she would not be in a position to continue maintaining the minor children. She would have no support base since her parents would have relocated to England. She had to downgrade her accommodation and the minor children’s schooling down to make ends meet. The respondent was not contributing towards school uniforms and stationery. In South Africa she was battling to afford a small two-bedroomed cottage for herself and her minor children, whereas in England she would easily be able to afford a three bedroom house. In England there was family support systems and the minor children there could attend school at no costs at all. In England the minor children could receive a good quality education which provided them with better opportunities for the future. Also they would have a stable home environment. Conversely, the respondent did not even had a home. He continued to reside with a friend he moved in with soon after the divorce with his wife. Thirdly, the respondent had not paid extra medical bills over the past years and the applicant’s parents were continuously meeting the financial short falls. Until the applicant was certain that she would be relocating it was impossible for her to receive concrete proof that children would be enrolled and that she would find employment.
The applicant was experiencing a monthly shortfall of R4669, the contribution received from the respondent having been added on; she stated that due to her lack of relevant qualifications she was not in a position to increase her earning capacity or to be pointed to a higher level. It could, therefore according to the court, reasonably be inferred therefrom that the applicant would in the near future find herself not being able to honour her primary duty of meeting the minor children’s socio-economic needs. See Centre for Child Law and Another v Minister of Home Affairs 2005(6) SA 50 (T) at 57C. It was therefore evident, according to the court, from the above that a refusal to allow the applicant as a custodian parent to emigrate with minor children to UK would impact negatively on her and in turn on the minor children. Although the respondent gave some good reasons for refusing the applicant’s relocation with minor children to England the court was still of the view that the best interests of the minor children out weigh all those.
In conclusion the court found that the Applicant demonstrated capacity to provide for the needs of the children including securing a permanent residence for herself and children and thereby created a sense of stability. On the other hand, the respondent had no fixed abode he was moving from one place to the other and therefore he was not in a position to provide a stable family environment for the minor children, he had various commitments like hunting and others. Such commitments rendered him unable to spend quality time with the minor children. Further, the nature of his employment made it impossible for him to get time off or leave during the festive reason.
The children had a very close bond with their maternal grandparents and the court agreed with Adv. Thobela-Mkhulisi for the applicant that the applicant had given careful thought to all practical considerations of a move to the UK and has weighed and balanced the real advantages and disadvantages to the children on the proposed move. The applicant wanted the respondent to keep regular contact with the children and she was prepared to do anything possible within her powers and means to ensure that such relationship was maintained. She even proposed the suspension of the monthly contribution by the respondent towards the maintenance of the children so to be able to purchase international air tickets for himself and children when visiting one another. However, the respondent refused to stop payment of maintenance towards the minor children for that purpose. He insisted that the applicant had stable employment and accommodation notwithstanding what the applicant had said in this regard respectively.
The applicant averred that the employment opportunities available in England would give her greater financial security and such income would enable her to provide adequately for her children. The respondent conceded that the standard of living of the applicant and children would not decrease in England if the applicant was able to find employment and accommodation. More so, according to the court, the applicant’s brother had offered to provide her and children with accommodation and to support her until she secured employment. According to the applicant her brother (who resides and worked in England) had provided her with valuable information and resources about living in Chorley England. It was ideal for the applicant and the minor children to reside there. It had all the amenities required for family suburban and it would provide safe and secure environment for her and children.
In South Africa the applicant indicated that there were no opportunities for promotion or development in her employment. Nor was she suitably qualified so to be able to find a lucrative job.
The court mentioned that there were a number of social assistance benefits available in England which were not available in South Africa. The minor children would qualify for free schooling, as their mother could emigrate on an ancestral visa. The minor children could also qualify for free health care on the English National Health Service. The expense of schooling and health care were extremely high in South Africa, and the educational career opportunities were minimal in South Africa as compared to UK. In the latter the tertiary education of the children would be subsidised.
The court had no hesitation to conclude that the interests of the minor children would be best served by allowing the applicant to relocate with her minor children to England where they would be able to have a safe home environment and to live a fulfilled life.
In the result the court ordered that the applicant was authorised to remove the two minor children born of the love relationship between the parties, namely [J……] [M……] [C……] a boy born on 11 October [2……] and [J……] [J…….] [C…….] a girl born on 21 June [2……], permanently from the jurisdiction of the court for permanent residence in the United Kingdom, England and that the respondent be entitled to maintain contact with the minor children, as follows:
(i) In South Africa, or England, for a period not less than three weeks during the minor children’s England school summer holiday;
(ii) In England, wherever the respondent is visiting that country at all reasonable times;
(iii) Telephonic and Skype contact at all reasonable times.
To relocate with children from one province to another is not always that easy and the main consideration will always be what is in their best interests. In the recent case of CG v NG  JOL 33246 (GJ) the parties were engaged in divorce proceedings. The applicant sought an order allowing her to relocate from Johannesburg to Cape Town with their minor children. The application came before Court by way of urgency.
The Applicant requested the following order:
At a previous court appearance the matter was referred to the office of the family advocate for a report on the primary residence of the minor children since the Court at that time considered the matter and thought that it was imprudent to make a decision about the applicant's relocation to Cape Town with the minor children without having had the benefit of an expert's report, the family advocate.
When the matter came before Court, the primary purpose was to finalise the relocation question. To the Court's total surprise, the applicant instead proposed that the matter be postponed with costs reserved to enable her to challenge the report of the family advocate with which she was in disagreement with.
The applicant contended that the postponement would not be prejudicial to the respondent as she was undertaking not to move to Cape Town until receipt of her own private independent expert report. Her further motivation for the postponement was that the matter should be postponed as it touches on the lives of the minor children.
The respondent, quite correctly in the court’s opinion, opposed the application for postponement. The court viewed the applicant's attempt to have the matter postponed as tantamount to saying that now that the report of the family advocate was not in favour of the relocation of the minor children, the case must be postponed to afford her an opportunity to supplement her papers so that the court can ultimately agree with her.
The court stated that parties come to court to have finality on their matters. It is only in those deserving instances where the court will consider a postponement favourably and this case did not seem to be one of those. Firstly, the court argued that this matter was brought as a matter of urgency and secondly the Court had to put pressure on the office of the family advocate to produce a report within three weeks so that the parties could have certainty.
The court was further of the view that it was indubitably financially prejudicial to the respondent to come to court expecting the matter to be resolved only to be confronted with a postponement.
The court did not grant the postponement and the Court had to deal with the only remaining issue between the parties and that was whether or not the applicant should relocate to Cape Town with the minor children. The law on matters of relocation is clear. The relocation must be in the best interest of the minor children as is prescribed in the Children's Act 38 of 2005. In addition, an applicant in the position of the applicant is at liberty to relocate with minor children provided his or her intention is bona fide and reasonable. The test applies to both relocation within the borders of South Africa and abroad. This was the position in the cases of Jackson v Jackson 2002 (2) SA 303 (SCA) and B v M 2006 (9) BCLR 1034 (W).
The two questions that arose in this matter were:
Whether or not an applicant's proposed move is bona fide and reasonable is a factual enquiry and each case must be assessed on its own merits.
The applicant was living in Johannesburg, Linkxfield, while married to the respondent and to date of the matter before the court she continued to do so. Her relationship with the respondent became estranged a result of which she held the view that it will benefit her to be next to her family, mother, father, brother and sister-in-law all of whom were in Cape Town. Her family will gave her the emotional support that she could not get in Johannesburg. Furthermore, once the minor children were settled, her mother would give her support by fetching them from school such that she could look for employment. As the primary custodian parent of the minor children she argued that her move to Cape Town would be in their best interest and she did not see herself being separated from them as that would prejudice her relationship with them and her proposed move to Cape Town were also supported by her psychologists.
The applicant asserted further that the respondent whom she described as "exceedingly wealthy" could still exercise his rights of access to the children notwithstanding the fact that he would be in Johannesburg and the children in Cape Town.
In response to the applicant's averments, the respondent alleged that it will not be possible for him to travel to Cape Town on a weekly or monthly basis as this would necessarily involve increased costs for him. Moreover, it would take him away from his only source of income, his work.
The relocation of the minor children meant that he would have to seek accommodation in Cape Town, transport and time off work in order to exercise his rights. His ability to generate income would be immensely impaired with devastating repercussions for both the minor children and the applicant especially as she was unemployed and fully dependent on the monthly maintenance that he paid.
The family advocate unequivocally recommended that the status quo be maintained because to move the minor children to Cape Town would reverse the stability that prevailed since the introduction of increased access by their father. The applicant herself agreed that all three minor children liked their father and that they could not wait to visit him. The family advocate also alluded to the fact that the eldest of the minor children appeared settled with her friends at school.
The court held that moving them to Cape Town under those circumstances could upset their routine and bring unnecessary shock to their lives at the time when they were beginning to settle. The court stated that the family advocate is an expert in these kind of matters and he undoubtedly compiled the report with the best interest of the minor children in mind. The Court had no reason to doubt the outcome and dismissed the application and ordered the applicant to pay the costs as between attorney and client.
Recently, in a case in the High Court in Pretoria, the question of whether a spouse guilty of “substantial misconduct” such as adultery should be punished has come under the spotlight.
One of the most significant policy questions involving the division of marital property is whether the division should be influenced by marital misconduct. At present, a majority of jurisdictions hold that marital misconduct is a factor to be considered
The recent case of an Mpumalanga couple, who divorced after 26 years of marriage because the woman had affairs, sparked a closer look at whether the Divorce Act is outdated.
A magistrate ruled that the woman forfeited some of the financial benefits she and her husband acquired during their marriage, as she had cheated on him on several occasions.
The parties in this case were married out of community of property with an antenuptial contract that included the accrual system. The magistrate found in favour of the husband and granted an order of partial forfeiture of marital benefits against the wife. He also ordered her to pay the costs. The woman then lodged an appeal to the High Court to appeal the magistrate’s order.
Section 9(1) of the Divorce Act 70 of 1979 states:
“(1) When a decree of divorce is granted on the ground of the irretrievable break-down of marriage the court may make an order that the patrimonial benefits of the marriage be forfeited by one party in favour of the other, either wholly or in part, if the court, having regard to the duration of the marriage, the circumstances which gave rise to the break-down thereof and any substantial misconduct on the part of either of the parties, is satisfied that, if the order for forfeiture is not made, the one party will in relation to the other be unduly benefited.”
According to the Judge in the High Court, the magistrate, correctly found that the woman was guilty of misconduct. However, the Judge said, this was not the sole cause of the break-up of the marriage and he found that the husband had “reluctantly” agreed that he rejected his wife’s efforts to reconcile. The Judge was also of the view that it was seldom that a marriage would break down solely due to the conduct of one party.
The Judge referred to the evidence by the husband, in which he admitted his wife was a diligent, wife and a good mother who resigned from her work to devote all her time to their children and the family. This, according to the man, allowed the family to prosper. The judge said that, although her contribution towards the growth of her husband’s estate was not quantified, it could be inferred that she used most, if not all, of her earnings while she was employed, towards the maintenance of the household.
The magistrate’s erred in his finding that the woman would unfairly benefit from their marital estate if he did not order a portion of it forfeited due to her misconduct. It is trite law that a party can only benefit from an asset brought into the estate by the other party, and not from his or her own asset. The wife in this case could thus not forfeit the assets which came about as a result of her contributions. The Judge was further stated that the magistrate, in awarding a cost order against the wife, wanted to punish her for her misconduct. He said the logic behind section 9(1) was that a spouse should not benefit financially from a marriage he or she had wrecked.
Although the Divorce Act 70 of 1979 did away with the “fault” principle a few years ago as a ground for divorce, the Act still allowed for the forfeiture of financial benefits if a spouse committed adultery. It appeared fault still played a role in our divorce system. The judge questioned whether “misconduct” was still relevant.
In light of the recent decision of the Constitutional Court in the case of DE v RH 182/14 it follows that Section 9 of the Divorce Act is archaic and outdated as it was aimed at punishing a party. The court ruled the Justice Minister and Speaker of Parliament be added as parties and that interested parties may enter the fray as friends of the court.
In the past our courts relied on the guilt principle in order to reach their decisions. South Africa’s courts have been called upon to pronounce on section 9(1), however, they have been unpredictable regarding the weight to be attached to each of the factors listed in section 9(1) when granting an order of forfeiture of patrimonial benefits. In 1992 that the Appellate Division in the case of Wijker clarified the position and stated that all three factors do not have to be present and they need not be considered cumulatively. South African courts generally, have failed to properly interpret section 9(1) and neglected to provide proper guidance on what the phrase “unduly benefited” means within the context of the Act.
As stated above courts have to consider three factors before granting a forfeiture order:
· The duration of the marriage;
· the circumstances which gave rise to the breakdown thereof;
· and any substantial misconduct on the part of either of the parties.
It is clear from previous decisions by our courts that when the marriage is regarded by a court as of short duration, the court will order forfeiture if it is established that if the order is not made one party will be unduly benefited. In the case of Swanepoel v Swanepoel, the court held that a marriage which was concluded on 15 December 1990, where one of the parties left the common home on 4 June 1995, was of a short duration and in Malatji v Malatji, the parties married on 14 February 2002 and the defendant left the common home during June 2003, the marriage was held to be of short duration.
The Act does not say what circumstances may be considered by our courts in judging what led to the breakdown of the marriage. Cases are also not clear on this point and such an analysis have to be made on a case-to-case basis. Misconduct such as itself is not a factor which can bring about a forfeiture order, such misconduct must be substantial and the concept of substantial misconduct is not defined in the Act. Our courts have also not been helpful in this regard.
In the case of Beaumont v Beaumont it was stated “...ln many, probably the most cases, both parties will be to blame, in the sense of having contributed to the break-down of the marriage... In such cases, where there is no conspicuous disparity between the conduct of the one party, and that of the other, our Courts will not indulge in an exercise to apportion the fault of the parties, and thus nullify the advantage of the “no-fault” system of divorce.”
The legislature has not gone far enough to address the deficiencies and injustices inherent in the guilt principle and therefore the court’s decision was correct that the Justice Minister and Speaker of Parliament be added as parties and that interested parties may enter the fray as friends of the court to.
The fault principle is generally stated as a guideline in the Act. It must be removed from the statute book in clear and unambiguous terms. In my submission, its retention only serves to plague divorce law with confusion and uncertainty.
“[A better society] will and must be measured by the happiness and welfare of the children, at once the most vulnerable citizens in any society and the greatest of our treasures.” – Nelson Mandela’s Nobel Peace Prize Acceptance Speech, 10 December 1993.
Child abuse is a global problem. Studies indicate that 25% to 50% of children globally suffer from physical abuse, and around 20% of girls and 5 to 10% of boys experience sexual abuse. There are substantial consequences not only for the affected persons, but also for society as a whole, and these can no longer be overlooked.
News headlines on child sexual abuse is now a daily recurrence, with some reading:
“Sexual abuse at Cape Town crèche”, “Top Cape school fires music teacher facing sexual assault”, “Jehovah’s Witnesses hid child sex abuse, inquiry told”, “Six men guilty in latest UK child sex abuse case”, “UK child sex abuse stuns judge”, “French judges on way to CAR to probe alleged child sex abuse”, “Case against Bloemfontein sexual assault parents postponed again”.
This year child sexual abuse has remained a prominent feature on the news agenda with details emerging about a range of high profile abuse cases. Trusted individuals such as, Bob Hewitt, Rolf Harris and Dr Myles Bradbury were convicted of multiple counts of sexual abuse against children and popular South African Dutch Reformed Minister and Author Ds. Solly Ozrovech was accused of sexually abusing children.
Many children worldwide are affected by such violence, yet it is seldom acknowledged, in part because it is so commonplace. Child sexual abuse is a hideous crime. For the vast majority of us, the idea of violating, hurting and abusing a child is intolerable. Nonetheless, these crimes are not as rare as we would like to think. Every day, countless children around the world are sexually abused and exploited.
Over 90% of sexually abused children were abused by someone they knew. In the UK have seen the number of recorded sexual offences against children increase by between 12% and 39% in 2013/14 compared with the previous year. For ChildLine UK in the past year, counselling sessions where the main concern was sexual abuse or online sexual abuse accounted for 45% of discussions.
According to a UNICEF research document it is estimated that almost 3,500 children under the age of 15 die from physical abuse and neglect every year in the industrialized world. The greatest risk is among younger children. A small group of countries Spain, Greece, Italy, Ireland and Norway appear to have an exceptionally low incidence of child maltreatment deaths; Belgium, the Czech Republic, New Zealand, Hungary and France have levels that are four to six times higher. The United States, Mexico and Portugal have rates that are between 10 and 15 times higher than those at the top of the league table.
In Australia the number of children being sexually assaulted by family members has more than doubled in the past 5 years, with almost 10 incidents being reported to police every week. While police have pointed to mandatory reporting requirements for the increase, campaigners have warned that the dominant image of a child sex offender being a stranger is leaving children vulnerable to offenders who are known to them.
Data from a 2011 study in Germany on a nationally representative sample of individuals aged 16 to 40 found that about 6% of women and 1% of men reported incidents of sexual harassment in their youth.
A 2006 national survey collected data from girls and women aged 16 to 70 in Italy on their experiences of being touched sexually or forced to do any other sexual activity against their will. Around 7% said they experienced sexual violence by a non-partner before age 16 with the most commonly reported perpetrators being acquaintances, relatives and strangers.
The Optimus Study carried out in Switzerland in 2009, collected information from adolescent boys and girls (aged 15 to 17) on their experiences of sexual victimization. Around 40% of girls and 20% of boys reported incidents of sexual victimization that did not involve physical contact at some point in their lives.
In 2012, Prevent Child Abuse America released an economic analysis positing that the prevalence of child abuse and neglect in the United States costs over $80 billion annually. It is estimated that the economic cost of child abuse in East Asia and the Pacific exceeds $160 billion based on economic losses due to death, disease and health risk behaviours attributable to child abuse and in the UK 3.2 billion pounds.
South Africa is reported to have one of the highest rates of sexual violence in the world. Several small scale studies have found that adolescent girls are at particular risk for experiencing forced sex with estimates ranging from 39% to 66%. Despite this, nationally representative data on the prevalence of sexual violence against children remain limited. An analysis of the 2010/2011 police records found that a total of 28,128 sexual offences against children under the age of 18 were reported to the police, representing just over 50% of all the reported crimes committed against children that year. An analysis by victim’s’ age using the 2008/2009 police-recorded data reveals that around 6 in 10 of the reported sexual offences committed against children that year affected those below the age of 15 and that about one quarter of the child victims were under the age of 10. It is important to note however, that research has consistently found that most sexual assaults are not reported to the police, and even when they are, the age of the reported victim is often unknown. A 2011-2012 nationally representative survey found that around 1 in 20 secondary school students (5%) reported at least one act of unwanted sexual contact (regardless of whether penetration occurred or not) at school in the year preceding the survey. Girls were much more likely to report having been recently sexually violated at school than boys (8% and 1%, respectively). Another study conducted in the Eastern Cape and KwaZulu-Natal provinces found that 28% of men reported previously raping a woman (whether alone or with accomplices). Reports of rapes by multiple perpetrators were especially high, with 20% of men reporting that they participated in a gang rape. However, only 5% of men admitted that they had raped a child under the age of 15.
Gauteng emerges as the province with the largest number of recorded crimes against children, although KwaZuluNatal has a larger child population. Northern Cape records the highest rate of recorded crime, closely followed by Western Cape and Free State. While the reported rates of crimes against children are extremely high, many incidents go unreported. The hidden nature of violence against children arises, among others, from the fact that young children usually lack the capacity to report violence and many others may fear further harm by the perpetrator or may worry that interventions by authorities may make their situation worse.
South Africa has an excellent and extensive legislative framework for protecting children. Both the Constitution and the Children’s Act ensures that children’s rights are protected and that provisions are made to ensure the best interests of the child.
Sexual violence in childhood hinder all aspects of development: physical, psychological and social. Apart from the physical injuries that can result, exposure to HIV and other sexually transmitted infections, along with early pregnancy, are also possible outcomes. Other physical consequences of sexual violence include a range of self-harming behaviours, such as the development of eating disorders, like bulimia and anorexia.
Children who have been abused are also more likely to attempt suicide; the more severe the violence, the greater the risk. Researchers have consistently found that the sexual abuse of children is associated with a wide array of mental health consequences, including symptoms of depression and panic disorder. Anxiety and nightmares are also commonly observed in younger children who have experienced such violence. The psychological impact of sexual violence can be severe due to the shame, secrecy and stigma that tend to accompany it, with child victims often having to find ways to cope in isolation. The risk of developing adverse mental health outcomes has been found to increase in relation to the frequency and severity of children’s exposure to sexual violence and to exert a lasting impact.
It is clear that the child violence situation in South Africa needs urgent and serious attention. Much of the needed policy and legislation is in place. The challenge now is to establish the coordinating and other mechanisms to ensure efficient and effective implementation of the policies, legislation and related programmes so as to fulfil the implied commitment to a better society characterised by the welfare and happiness of the country’s children.
Bertus Preller – Family Law Attorney
Bertus Preller & Associates Inc.
T: +27 21 422 2461
Today the Constitutional Court handed down judgment in an appeal in the case of DE v RH 182/14 concerning the continued existence of a spouse’s right to claim damages for adultery against a third party.
The applicant, Mr DE, sued the respondent, Mr RH, in the North Gauteng High Court, Pretoria for damages on the basis that Mr RH had an extra-marital affair with Mr DE’s former wife, Ms H. Mr DE had launched his action based on the general remedy for the infringement of personality rights, specifically claiming for insult to his personality and the loss of comfort and society of his spouse. Mr DE was successful in respect of the claim for insult but the High Court found that the loss of comfort and society of his spouse could not be proved because there was no evidence to show that the adultery had caused the breakup of Mr DE’s marriage.
Mr RH appealed against these findings to the Supreme Court of Appeal. That Court recognised that our law currently allows for the claim of insult against a third party in the case of adultery. However, of its own accord, it raised the question whether the claim should continue to exist. In dealing with this issue, the Supreme Court of Appeal judgment canvassed the historical trajectory of the claim, foreign law, changing societal norms and the detrimental financial and emotional costs of an action of this nature. It concluded that in light of the changing values of our society, the claim based on adultery had become outdated and could no longer be sustained. The Court therefore abolished it.
From a legal point of view both the Supreme Court of Appeal and the Constitutional Court was correct in their findings that a claim against a third party for damages in case of adultery is no longer part of our law. Mr RH’s appeal to the SCA against the judgment of the trial court was originally focused against findings of fact and the application of such facts to the law. The Supreme Court of Appeal having addressed itself in some detail to the evidence adduced at the trial, found that not much reliance could be placed on credibility findings of the trial court which had been biased in its judgment and which had erred in its finding on the facts. Mr DE did not appeal against the SCA’s findings of fact and only directed his intended appeal on a question of principle, namely whether the finding that adultery is no longer part of our law is consistent with constitutional values and norms.
The facts before the Supreme Court of Appeal was inter alia that serious problems existed in the marriage between the Mr DE and Ms H. Mr DE demonstrated a profound lack of love, affection, caring and concern for Ms H’s physical, emotional and spiritual well being. He behaved in an abusive manner towards Ms H. This included evidence on one occasion of a physical assault and on another, of marital rape. Ms H took a decision to end the marriage and she left the matrimonial home with her children on 23 March 2010, having informed Mr DE that she was no longer prepared to continue with the marriage. Evidence led at the trial showed that a romantic attachment had developed between Mr RH and Ms H only after she had left the marital home. It was also common cause that a sexual relationship between Mr RH and Ms H had developed only after the consortium in the marriage had ended.
The delict of adultery was abolished in many foreign jurisdictions such as England, Scotland, Canada, Australia, France, the Netherlands, Germany and most states of the United States of America (which countries have no less regard for the sanctity of marriage than any other parts of the world), have recognized and accepted that the action is not desirable or necessary to protect the institution of marriage.
The origins of the claim are deeply rooted in patriarchy. Originally only a man had the right to pursue a claim against a third party that had committed adultery with his wife. Wives were viewed as mere chattels. And that probably explains why the claim was available only against the third party, and not the wife who – in essence – was a co-wrongdoer. As time went on, South African courts began questioning the discriminatory nature of the claim. Making contentions based on Christian principles of fidelity, which are applicable both to husbands and wives.
The Constitutional Court was of the opinion that love and respect are foundations of a solid marriage and not legal rules. Those are within the control of the spouses themselves. After all, it is they who undertook to be truthful and faithful to each other. The Constitutional Court was further of the view that the obligation pre-eminently rests on the spouses themselves to protect and maintain their marriage relationship. Subject to some cultural variations, love, trust and fidelity are the bedrock on which a marriage relationship is built. Whittle or take that away, the relationship may perish. It is the spouses that must avert anything negative befalling the foundation of their marriage.
The Court was further of the opinion that the he delictual claim is particularly invasive of, and violates the right to, privacy. The Supreme Court of Appeal dealt with the abusive, embarrassing and demeaning questioning that Ms H suffered in the High Court. She was “made to suffer the indignity of having her personal and private life placed under a microscope and being interrogated in an insulting and embarrassing fashion”. Likewise, in order to defend a delictual claim based on adultery, the third party is placed in the invidious position of having to expose details of his or her intimate interaction – including sexual relations – with the adulterous spouse. That goes to the core of the private nature of an intimate relationship.
The court further made the point that our modern day idea of the sacrosanctity of marriage and its concomitant protection by the law are by no means what they were in, say, the times of King Henry VIII, who – because of Roman Catholic tenets, at a time when there was not much separation between church and state – could not even get a divorce and was forced to decree that thence forth the Church of England would be separated from the papal authority of the Roman Catholic Church. Needless to say, he was then free to follow his heart’s desire, although he was excommunicated by the Pope for this conduct. We have come a long way from those strictures and gymnastics. That is because times are changing, and the law – though still recognising the sanctity of marriage – has moved with the times both in its conception of the institution of marriage and the punitive extremes to which it will go to protect it.
Counsel for Mr RH, Advocates Kuny and Ndlokovane, correctly argued that there is a glaring inconsistency in the action for adultery in that it is available against the third party only and not against the adulterous spouse, who is clearly a co perpetrator, and being the party who has promised fidelity, is arguable more legally and morally culpable than the third party. They also argued that the action for adultery is often used by an aggrieved spouse in a divorce action as a weapon in terrorem to exact a settlement which such party might not otherwise be capable of achieving and it often leads to abuse. They also highlighted in argument the obvious difficulties that would arise in determining what constitutes adultery between same-sex partners. It is also arguably not possible to apply the action equally and in a non-discriminatory manner in polygamous marriages which are legally recognised under our constitution and which incorporate asymmetrical concepts of sexual fidelity.
Advocate Dave Smith SC, who appeared for the ex-husband in the high court and in the appeal court, had argued for the important role that a civil claim for adultery played. It sent out a message that marriage was ‘holy’ and that outsiders should not interfere. Adultery was a sin according to all the major religions. He also argued that such a claim was a “release mechanism” that gave the “injured spouse” a legal way of “soothing his or her feelings.”
In his introductory remarks during judgement, Justice Mbuyiseli Madlanga, writing for all members of the court, said the decision was “undoubtedly of historical moment” in South Africa. Chief Justice Mogoeng Mogoeng agreed, but, with Justice Edwin Cameron, he added an additional brief judgment saying that the law had a role in supporting marriage by helping ensure that barriers to family life were removed, but “The rest is in the hands of the parties to the marriage.”v“The law cannot shore up or sustain an otherwise ailing marriage,” he said. “It continues to be the primary responsibility of the parties to maintain their marriage.” “For this reason the continued existence of a claim for damages for adultery by the ‘innocent spouse’ adds nothing to the lifeblood of a solid and peaceful marriage,” the Chief Justice said.
There is no evidence that the action for adultery would deter a spouse in a marriage from committing adultery nor would it deter a third party from committing adultery with a married person. It has long been recognized that adultery is a symptom of the breakdown of the marital relationship and not the cause. In 1978, the Law Commission on divorce, which was responsible for the present Divorce Act 70 of 1979 (introducing the no-fault system of divorce), stated that “Adultery and malicious desertion are for the most part only the ultimate acts which indicate that a marriage has broken down. They are more often the effects of a marriage having broken down than the causes of breakdown”.
Sources: Media Statement and Judgment Constitutional Court and Heads of Arguments of the parties.
Get the judgement here:
Paternity fraud is committed when a mother names a man to be the biological father of a child, for self-interest, when she knows or suspects that he is indeed not the biological father. It happens more often than many of us realise, a woman falls pregnant and is uncertain of who the real father of her child is. Whether she’s married and trying to conceal an affair, or she’d prefer the lover she sees as more reliable to father her child. But to lying about her child’s fatherhood can have a distressing impact on all parties involved. Years may pass, but when the truth comes out the consequences are life-changing.
The need to know one’s own human biological identity is as strong as the need to have your own family. In paternity fraud disputes, there are many potential victims: the non-biological father who pays erroneously maintenance, the child deprived of a relationship with his/her biological father, and the biological father who is deprived of his relationship with his child. Other victims include the child’s and the non-biological father’s families. In particular, financial hardship may have resulted for the non-biological father’s due to the maintenance and child support that he has to pay and his other children and spouse in cases in which the man was forced to make maintenance payments for another man’s child.
In a recent case in the UK a father was at the centre of a case of paternity fraud after he was tricked into raising another man’s child as his own for 6 years. In this case the Judge ruled that the man’s ex-wife could not be forced to hand back tens of thousands of pounds in maintenance payments even though they were the result of “fraud”. The man was cheated by his ex-wife, into believing that the baby she conceived through fertility treatment at a clinic in Spain was his child. In fact, the child, was the product of a sperm sample provided by her former boyfriend instead of one he had given. The judge in the case ruled that the man had been the victim of “clear deceit and fraud” and ordered his ex-wife to pay him £10,000 in damages for emotional harm, as well as refunding some housing expenses and paying legal bills – which came to about £100,000 in total. The court did not order her to pay back the £60,000 she received in child maintenance from the man after they separated – even though the court found she must always have known he was not the real father. Case law determined that child maintenance cannot be recovered in such cases. Crucially, the finding in his favour does nothing to bring back the son he once had.
In a recent case in the United States a woman found out that her twins had been fathered by two different men in a paternity case. The woman was applying for public assistance and named her romantic partner as the father of both children. In the course of her testimony in court, she admitted to sleeping with a different man about a week after she believed she had conceived the twins with her partner. This prompted a paternity test, which revealed that each man had fathered one of the twins. The original partner was then ordered to only pay child support for one of the children. This kind of occurrence is rare, but not unheard of a doctor who testified in the case gave evidence that 1 in 13,000 paternity cases for twins involve two different fathers.
Studies that was conducted in Australia has shown that between 10% and 16% of the general population are victims of paternity deceit. In Australia, mothers are being forced to pay back thousands of dollars to men they wrongly claimed fathered their children following a contentious reform of child support laws. The Australian face of paternity fraud is a Melbourne man named Liam Magill. In 2002, Magill’s ex-wife Meredith was ordered to pay him $70,000 for general damages and the economic loss he suffered as a consequence of her false declaration that he was, as one newspaper report put it, the biological father of “her lover’s children”.
In the UK, single mothers are deliberately naming the wrong man as the father of their children when making maintenance claims. Child Support Agency figures show that nearly 1 in 5 of the contested paternity claims it handled cleared the man originally named as the father. Its figures for 2007-2008 show that out of 3,474 DNA paternity tests ordered, 661 (19%) named the wrong man. Government-approved DNA testing kits, have exposed 4,854 false paternity claims since records began in 1998-99. A British survey conducted between 1988 and 1996 confirmed the 10% figure. A recent poll in the UK on a survey on attitudes to truth and relationships has found that 19 out of 20 women confess lying to their partners or husbands. 83% owned up to telling “big, life-changing lies,” with 13% saying they did so often. Half said that if they became pregnant by another man but wanted to stay with their partner, they would lie about the baby’s real father. 42% would lie about contraception in order to get pregnant, no matter the wishes of their partner.
In the United States it is alleged that almost 30% of DNA paternity tests, excluded the man as the father of the child in question. The exclusion rate however includes a number of factors. One is a woman may allege several men as possible fathers because she was sexually active with these individuals. These are not men who were misled into believing they were fathers and then later discover they are not. The testing merely sorts out which man is the biological father and excludes the others.
In 2012, a woman was arrested in KwaZulu Natal after a mother told a Durban regional court magistrate that she had handed over R65 000 to the woman who was a Facebook friend she had never met who was supposed to be helping her to manipulate a paternity test. The mother wanted the test to reflect her present boyfriend as the biological father of her six-month-old baby, not the real father who she considered “unstable”. The mother who pleaded guilty to attempted fraud and received a 3 year suspended sentence, testified that the woman had initially asked for R1 500 but, thereafter kept on demanding more money, not only for herself, but for “blackmailers” who wanted money for their silence and others including two magistrates who were said to be helping her. Sick of “living a lie” the mother then went to the police. The woman pleaded guilty to five charges of fraud, forgery, uttering, extortion and crimen injuria and was sentenced to 5 years imprisonment.
Issues regarding paternity have been dealt with in a number of cases in the South African Courts. The South African Children’s Act confirms in Section 36 a presumption in respect of a child born out of wedlock (parties who were not married to each other). The presumption is that the person whom had sexual intercourse with the mother at any time when that child could have been conceived will be presumed to be the biological father of the child in the absence of evidence to the contrary which raises reasonable doubt.
In 2010 in the case of YM v LB 2010 ZASCA 106 our Supreme Court of Appeal (SCA) was given an opportunity to provide judicial clarity on the law relating to court-ordered blood testing of potential parents refusing to voluntary submit themselves (and/or the minor child) to such testing, but the Court most unfortunately elected to side-step the issue based on the facts of the matter. It is not suggested that the court was wrong in its final decision, but it was hoped that it would provide guidelines as to this issue of compelling adults and children to undergo blood tests to determine paternity. In this case the court of first instance ordered the parents and child to undergo paternity testing, the decision of the court was then taken on appeal. The issue had been unclear for about 30 years and certainty regarding the obligation and power of the court to order such tests against the wishes of one of the parties would have been valuable. It was indeed a missed opportunity to clarify the law once and for all. The SCA found that where the paternity of the child has been shown on a balance of probabilities, scientific tests on a child should not be ordered. In this matter paternity was not really in dispute as both parties (at various times before the attorneys joined the show) believed that the man in question was the father of the child. The mother’s maternity was obviously never in doubt. The court also stated that as paternity is determined on a balance of probabilities, the man is not entitled to demand scientific proof and that in relevant instances, the court has the inherent power as upper guardian of all minor children to order such tests if it is in the best interests of the child. The SCA also noted that the rights of privacy and bodily integrity may be infringed if it is in the best interests of the child. However, it confirmed the statement made by a judge in an earlier case that it may not always be in an individual’s best interest to know the truth. The court noted that in some cases it may be justified to order tests, but that the discovery of the truth should not be generalized.
The basis of a paternity matter is that the applicant will have to show that such a test would be in the best interest of the child. This in itself is extremely difficult as there seems to be no research done in South Africa as to the impact on a child that learns, at a much later stage, that his/her presumed father was not the biological father. One may argue that paternity testing may have a negative short-term impact on the family as it may reveal relationships that were previously unknown. After all, it has been acknowledged that from a broader family perspective, family genes are considered to be a valued possession passed down in a family through succeeding generations.
Would it be better not to know the truth or to keep the truth from a child at any age and one wonders whether this is indeed in the interests of a child? In disputed paternity claims the emotional trauma of uncertainty definitely taints the relationships between the parents and sometimes also the relationships between the probable father and the child. Trauma such as this can be easily be resolved through testing.
Section 37 of our Children’s Act states that if a person in proceedings in which paternity of a child is challenged refuses to submit him/herself, or the child, to take blood samples in order to carry out a scientific test to prove the paternity of the child, then a presumption in our law exists in which the failure of such a party to agree to such a test may be used as evidence to prove the contrary. The effect of this section is that it compels a court to warn the person who has refused to have his/her or the child’s blood sample taken ‘of the effect’ which such refusal might have on his/her credibility. The problem is that the section does not go far enough and does not resolve the main issue, namely the truth about the paternity of the child.
The unreported case of Nel v Jonker (WCHC) case number A653/2009 was the first reported judgment dealing specifically with misattributed paternity. The ex-husband had regarded the child, born four months into his marriage with the mother, as his biological child and had maintained her as such. Only 16 years after the birth, and 10 years after the divorce, did he discover through DNA testing that the child had actually been fathered by another man. The maintenance court varied the divorce order by deleting his (future) maintenance obligations towards the child since he was not the biological father of the child. The court of first instance subsequently awarded damages to the cuckolded ex-husband for the R50 000 that he paid towards the child’s maintenance since the divorce. This order was taken on appeal. On appeal the Judge overturned the damage award that the maintenance court granted to the ex-husband. The ex-husband argued that he supported the child in the bona fide and reasonable belief that it was due and payable. The Judge found that the ex-husband did not meet all the requirements of the claim, specifically, his error in paying maintenance was found to be unreasonable and that there was no proof that the mother of the child was enriched by the maintenance payments. In adding, the court noted that prescription could have reduced his claim, but as it was not pleaded it was not necessary to consider. With regard to considerations of public policy the court did not find it necessary to make a final decision in this regard. The reading of the case leaves one with a feeling of dissatisfaction because the set of facts was not ideal to deal with this complex issue, and partly because of the fact that the pleadings and evidence were deficient, making a precedential judgment on misattributed paternity impossible.
What is disturbing is the fact that it is impossible to accurately estimate just how widespread paternity fraud is. One may assume that there are a plethora of men in South Africa who are currently raising another man’s child, blissfully unaware of the devastating truth. For each of these men, the truth will only be revealed if the woman who duped them decides to confess, or for some reason, a paternity test is taken. Looking at jurisdictions around the world, there are various ways to deal with the question of refunding of the maintenance payments. On the one side of the scale certain jurisdictions by legislation deny such an action mostly on the best interests of the child. It has also been argued that where a man accepts fatherhood, he cannot recant his fatherhood merely based on the fact that he is not the biological father – fatherhood after all comprehends much more than just biology. In other jurisdictions legislation and the courts provide for a re-claim of maintenance contributions. Which side of the scale South African courts will lean towards in future remains to be seen.
A last question that can be asked is whether the mother of a child can be prosecuted for the crime of (paternity) fraud or whether public policy should exclude this possibility? Fact is that it remains fraud and such actions should be prosecuted. The scenario is becoming more common around the world and also in South Africa. With DNA tests becoming cheaper and more available, the courts or the legislature will have to deal with this problem soon.
KLVC v SDI and Another  1 All SA 532 (SCA)
Section 21(1)(b) of the Children’s Act 38 of 2005 (the Act) provides, that an unmarried father of a child, regardless of whether he has lived or is living with the mother of the child, acquires full parental rights and responsibilities over the child if he –
‘(i) consents to be identified or successfully applies to in terms of section 26 to be identified as the child’s father or pays damages in terms of customary law;
(ii) contributes or has attempted in good faith to contribute to the child’s upbringing for a reasonable period; and
(iii) contributes or has attempted in good faith to contribute towards expenses in connection with the maintenance of the child for a reasonable period’.
In KLVC v SDI and Another  1 All SA 532 (SCA) the issue the court had to deal with was whether the father, had satisfied the requirements of the section and accordingly acquired full parental rights and responsibilities over his minor child. During the father’s temporary trip overseas, the mother relocated the four-month-old minor from Durban to the UK without the consent of the father or authority of a court. As a result the father instituted proceedings in a UK court for return of the child to South Africa. The UK court was unable to decide if the removal of the child from South Africa was wrongful in that it was done without the required consent of the father or authority of court. It accordingly referred the question for determination by a South African court.
The High Court found that the father had satisfied the requirements of the section and accordingly acquired full parental rights and responsibilities over the minor child. The mother then appealed but her appeal was dismissed with costs by the Supreme Court of Appeal.
The Supreme Court of Appeal judges held that determining whether or not an unmarried father had met the requirements of the section was an entirely factual enquiry. It was a type of matter, which could only be disposed of on a consideration of all the relevant factual circumstances of the case. An unmarried father either acquired parental rights or responsibilities or did not. Judicial discretion had no role in such an enquiry. The concept of a contribution or attempt in good faith to contribute to the child’s upbringing for a reasonable period was an elastic one, which permitted a range of considerations culminating in a value judgment as to whether what was done could be said to be a contribution or a good faith attempt at contributing to the child’s upbringing over a period which, in the circumstances, was reasonable.
In this case the father had demonstrated sufficiently that he had acquired full parental responsibilities in respect of the minor. As co-guardian, his consent was required prior to the removal of the child from South Africa by the mother. By removing the minor without such consent the mother acted in breach of the father’s parental rights and responsibilities.
Divorce is never easy, especially when there are children involved. Occasionally there will be a tale of divorced couples who amicably share the care of their children and who are successful in raising children who are psychologically sound and happy. If you are lucky to have a reasonable ex-partner, an amicable resolution can be reached. But there are times when the opposite occurs and where one parent alienates a child from the other.
Brian’s story, obtained from a Facebook post:
“I have been alienated from my children now for nearly 5 years, believe me, it gets harder each and every day. Yet, as a dedicated and loyal father I pay my maintenance on a monthly basis, give my ex an annual increase, all of this for 2 children I do not see. People say that when they are older they will come back into my life. By that time we will be strangers to each other. By that time the children can be so brain washed, that their decision is based on fear. Parental alienation is actually not the correct term, as the child or children are isolated not only from the one parent, but from an entire family. My ex allows my children no contact with my parents, or relatives like uncles, aunts, cousins etc. Where does one draw the line? I was the one facing countless false accusations. It was a constant barrage. You put out one fire out only to be confronted by the next accusation the next week. After spending millions of rands over several years, you eventually throw in the towel. It is either that, going insolvent or suicide. Those are the choices you have. I threw in the towel, but was not far away from suicide. Surely the legal system should find out why a former spouse denies the entire family of her former husband access to the children. Surely they cannot all be evil and bad people. Unfortunately the legal and justice system failed me”.
In a recent matter before the High Court in Pretoria Judge Peter Mabuse sent a clear message to parents who alienate their children from the other parent, the honourable Judge stated:
“It is humanly incomprehensible why one parent would refuse the other parent the right of access to their own child. “In my view – and here I am not laying down any general principle – a parent should encourage frequent contact between their children and parents”
In a recent case in the UK, High Court Judge Mrs Justice Parker made the following remark:
“Parents who obstruct the relationship with either mother or father are inflicting untold damage on their children and it’s about time the professionals truly understood this. I regard parental manipulation of children, of which I distressingly see an enormous amount, as exceptionally harmful”.
Parental alienation is a phrase often used in the context of high conflict divorce or separation. A key feature of parental alienation is a child’s strong alignment with one parent whilst rejecting a relationship with the other, despite a prior normal, loving, warm relationship. In countries such as Brazil and Mexico it is a crime to alienate a parent from his/her children.
Examples of parental alienation are:
to carry out campaigns for disqualifying a parent’s behaviour upon exercising his/her parenthood;
to obstruct the exercise of parental authority;
to obstruct the contact between a child or adolescent with one of their parents;
to obstruct the legal right to exercise family life;
to deliberately withhold from a parent relevant personal information on the child or adolescent, including school-related, medical, and address changes;
to file false charges against a parent, their family members, or against grandparents;
to obstruct or prevent their presence in the child or adolescent’s life;
to change residence to a distant place, without justification, in order to make it difficult for the child or adolescent to live with the other parent, their family member, or grandparents.
In the Australia in the case of V versus V the Court was faced with a situation where the mother unilaterally and unreasonably denied a father access to his children. After constant litigation between the parties over a period of 4 years involving 17 court orders and directions of some 16 judges the Court eventually, indicated that it was time that the litigation should be brought to an end for the sake of the children and transferred residence of the children to the father. The Judge made the following remark in this case:
“Unfortunately the courts at all levels are well accustomed to intractable contact disputes which drag on for years with little or anything to show for the outcome except numerous court hearings, misery for the parents, who become more entrenched in their positions, wasted court resources, and above all serious emotional damage to the children. These disputes are expensive, ….. They take up a disproportionate amount of time in court, thereby depriving other cases of timely hearing. Constant litigation in respect of residence and/or contact is not only destabilising for parents and children who become a battleground to be fought over at any cost, but it is a process which progressively results in entrenched attitudes as if engaged in a war of attrition. There is also a perception that courts allow parents with care to flout court orders for contact and permit the parent with residence to exclude the parent from the lives of the children so that the other parent is worn down by years of futile litigation which achieves nothing and only ends when the parent gives up the struggle, or the children are old enough to make their own decisions, assuming they have not been brainwashed in the meantime.”.
Dr Craig Childress, a US psychologist and expert in the field of parental alienation explains parental alienation as a situation in which one parent consciously or subconsciously turns their shared children against the other parent, through various means of manipulation. It often involves the premise that one parent falsely accuses the other of abuse and indoctrinates the child into believing that abuse took place, whether it be mental, physical, sexual, or a combination.
While there are many true cases of abuse, what is key according to Dr Childress is to look at the child’s behaviour. “It’s the child’s behaviour that need to be observed. Unnecessary levels of anxiety or fear of the alienated parent can be a sign.” Eventually, children can become so indoctrinated and eager to please who they view as the “powerful parent,” they may start hating or abusing the targeted parent themselves. According to Dr Childress, parents who indoctrinate children into alienating the other parent are linked to narcissist borderline pathogenic parenting. The symptoms of narcissism include: grandiosity, entitlement, absence of empathy, haughty, arrogant behaviour and delusional belief systems.
Researcher Amy Baker says that parents who try to alienate their child from the other parent subtlety, or not so subtlety gives a three-part message to the child. She says:
“I am the only parent who loves you and you need me to feel good about yourself; the other parent is dangerous and unavailable; and pursuing a relationship with the other parent jeopardizes your relationship with me.”
Despite recognition in some of our high court judgements, parental alienation is poorly understood and rarely acknowledged in our family justice system. Whilst there is recognition of the long term psychological impact on the child, there is little research into the sense alienated parents make of their lives when being rejected.
In many cases before our courts alienated parents are subjected to false allegations of domestic violence against their ex-spouse or partner, false allegations of physical, emotional, sexual, abuse or neglect against their child. In Family law proceedings in South Africa, a child’s best interests is paramount and therefore allegations of abuse generally result in the instant interruption of direct contact with the child while fact finding, safeguarding and clinical assessments are undertaken. It goes without saying that parents who are then unable to see their child experience a presumption of guilt and a need to prove their innocence.
The legal process in determining the trust of such allegations is time consuming. The absence of direct and meaningful contact during this period often prolongs the alienation, making meaningful relationships more difficult and unlikely. One of the key determinant factors in the perpetuation of the alienation process is “time since last direct contact” according to Dr Fiona Fidler an Australian psychologist.
The lack of power that alienated parents experience is found in their experiences with, and opinions of our legal system. There is a belief that the legal process is itself helpless, powerless or unwilling to enforce the repeatedly broken contact orders which it has sanctioned.
Research presented by Dr Sue Whitcombe to the Annual Conference of the British Psychological Society’s Division of Counselling Psychology in London found in a study of 54 parents that have been alienated from their children that they initially had direct contact with their child when their relationship broke down but that contact broke down at a later date. 94% participants had engaged in family law proceedings in the courts regarding their children and 70% reported that their ex-partner repeatedly broke one or more of the court orders in place. As such, many parents feel that their former partner holds all the power. 78% of these parents had not seen their children for more than a year and 72% of the children had been cut off completely from the alienated parent’s extended family.
Dr Whitcombe also found that there was a “lack of knowledge and understanding” about parental alienation and this resonated from her own experience when raising the topic with mental health professionals, practitioner psychologists, colleagues in social care and education. It therefore goes without saying that a failure to recognise an alienation dynamic, and differentiate it from justifiable estrangement leads to inappropriate therapeutic or judicial intervention, with potentially long term detrimental repercussions for the families and individuals concerned.
According to Dr Childress the only way to deal with a parent who alienates a child from is to obtain the child’s protective separation from the borderline alienating parent. Until one obtain this protective separation, efforts to restore the child’s authentic affectionate bonding will simply lead to the child’s further triangulation into the “spousal” conflict because of the increasing psychological pressure placed on the child by the alienating parent to maintain the child’s symptomatic rejection of the other parent, thereby turning the child into a psychological battleground.
Childress uses the image of a “hostage situation” with a psychologically disturbed and highly controlling narcissistic parent, who can unleash an intense anger and rejection toward the child if the child dares to deviate from the parentally desired responses. He believes that unless one is able to free the child from this hostage situation, one cannot reasonably ask the child to go against the will of the personality disordered “hostage taker” because of the excessive degree of psychological torment the child will be subjected to if the child does show an affectionate bond with the target parent.
Childress also believes that to convince the child to show affectionate bonding towards a targeted parent the alienating parent will increase the psychological pressure on the child to remain symptomatically rejecting the targeted parent. This essentially according to him turns the child into a psychological battleground which will destroy the child. He says further that to begin to restore the child to balanced and normal-range functioning, one must first protect the child from the distorted and pathogenic parenting of the personality disordered alienating parent. No qualified therapist according to him should attempt “reunification therapy” without first obtaining a protective separation of the child from the distorting pathogenic influence of the narcissistic-borderline personality disordered parent.
Essentially, the situation represents the Judgment of Solomon. Two women came before Solomon, each claiming that a baby was theirs. Solomon ordered the child cut in half, and that half be given to each woman. The child’s true mother intervened and told Solomon not to cut the baby in half, but to instead give the child to the other woman. Solomon recognized this woman to be the child’s true mother since she was willing to give up the child rather than see the child destroyed, and Solomon awarded the child to the true mother.
In attachment-based “parental alienation”, the personality disordered narcissistic borderline alienating parent is entirely willing to psychologically destroy the child rather than see the child bond with the targeted parent. Any steps to restore the child’s normal range and balanced functioning, will increase the psychological pressure on the child to remain symptomatic, and the narcissistic-borderline parent is willing to psychologically destroy the child in the process if it is necessary to prevent the child from forming an affectionate bond with the alienated parent.
The sad reality is that in many instances an alienated parent is unwilling to psychologically destroy the child and placed in a position where such a parent relinquish the child to the psychologically disturbed, personality disordered parent, the emotionally and psychologically false parent, because the alienated parent is unwilling to “cut the child in half.”
Unfortunately the wisdom of our legal system often fall short in recognizing a child’s true psychological and emotional parent, the parent who is relinquishing the child (i.e., is being rejected and abandoned by the child) because this parent is unwilling to destroy the child in order to possess the child. The time has come for our courts to recognize the false parent, the narcissistically self-absorbed parent who is willing to psychologically and emotionally destroy the child in order to possess the child as a narcissistic object and symbol of his or her narcissistic victory over the other parent.
Regrettably, this level of sophisticated wisdom is far too often lacking from the Court. Childress makes a valid point and believes that the wisdom of our Courts is dependent upon the wisdom provided from mental health in identifying the underlying pathology, and currently our mental health practitioners are woefully inadequate in reliability identifying the pathology associated with attachment-based “parental alienation.” According to him the Courts’ wisdom is lacking because: “…mental health has failed in its responsibility to the targeted parent and child. The mental health response to attachment-based “parental alienation” needs to change dramatically before Courts will be able to act with the decisive clarity necessary to solve the tragedy of parental alienation.”
It is clear that the biggest challenge currently facing targeted parents and children is that many mental health professionals either are not aware of, or don’t fully understand, parental alienation. Educating legal and mental health professionals about parental alienation is a critical step in helping parents and children overcome the actions of an alienating parent. If we don’t recognise this, our children and their parents will continue to suffer.
My heart goes out to the many good parents out there, who suffer as a result of alienation.
Compiled by Bertus Preller
Family Law Attorney at Bertus Preller & Associates Inc. Cape Town
Tel: +27 21 422 2461
The murder of teacher Jayde Panayiotou’s has highlighted yet again the incidence of Domestic Violence in South Africa. One of the most common forms of violence against women is that performed by a husband or intimate male partner. Although women can also be violent in relationships with men, and violence is also found in same-sex partnerships, the overwhelming health burden of partner violence is borne by women at the hands of men.
Intimate Partner Violence accounts for almost 63% of the overall interpersonal violence burden on females. More women are killed by their current or ex–intimate male partner in South Africa than in any other country with a rate of 8.8 per 100 000 women. In a study of 1 229 married and cohabiting women, a prevalence of 31% intimate partner violence was found and a study on physical violence among South African men found that almost 28% reported perpetration of violence in their current or most recent partnership. In South Africa, a woman is killed by domestic violence on average roughly every eight hours and the rate of intimate femicide, the killing of women by their partners, is five times higher than the global average.
To put that figures into perspective, there are more than seven times as many murders in South Africa than there are for example in the United States and South Africa has a population of just 51 million compared with the 317 million population in the United States. Statistically speaking, Panayiotou, (if her husband was involved in her killing) was one of three women killed by an intimate partner on the day she died in the country.
Intimate partner violence includes acts of physical aggression, psychological abuse, forced intercourse and other forms of sexual coercion, and various controlling behaviours such as isolating a person from family and friends or restricting access to information and assistance.
In 2012, Interpol labelled South Africa the "rape capital" of the world. Still, less than 1% of rape cases are reported to the South African Police Services. In 2013 the Washington Post reported that South African Police stations were running out of rape kits, which are needed to collect evidence.
It is difficult to get trustworthy statistics on violence against women in South Africa. Although the number of reported cases is very high, many cases go unreported. The incidence of domestic violence is difficult to measure since the police do not keep separate statistics on assault cases by husbands or boyfriends. When the South African Police Service reports on crime statistics each year, it does not say how many of these crimes were committed in the context of domestic violence. Very little can therefore be gathered from the South African Police Services analysis of the crime statistics, which for example only show common assault to have declined while assault with intent to cause grievous bodily harm has decreased.
Intimate partner violence is the most common form of violence experienced by South African women, according to the South African Stress and Health (SASH) survey. Such violence was reported by about one in eight women (13,8%) in the study and by 1,3% of men.
Violence by an intimate partner has been linked to many immediate and long-term health outcomes, including physical injury, gastrointestinal disorders, chronic pain syndromes, depression and suicidal behaviour.
The South African Domestic Violence Act of 1998 includes, physical abuse, sexual abuse, emotional, verbal and psychological abuse, economic abuse, harassment, damage to property, entry into the complainant’s residence without consent, where the parties do not share the same residence or any other controlling or abusive behaviour towards a complainant, where such conduct harms, or may cause imminent harm to, the safety, health or well-being of the complainant.
During 2009 - 2010, 291,546 people applied for a protection order in South Africa. 58.2% protection orders were and 21.2% withdrawn. In a study an analysis was done of 600 applications for protection orders from three magisterial jurisdictions in the Western Cape. It was found that 78% of applications were brought by women against men. The highest prevalence of domestic violence in South Africa has been reported in the Limpopo Province. Of the women and men who applied for an interim protection order in the Western Cape (depending on the different population groups) 62–73% reported physical violence, 89.5–100% verbal abuse, 57.1–61.5% psychological/ emotional abuse, 21.4%–38.2% economic abuse and 7.1–11.4% sexual abuse.
It goes without saying that South Africa has a serious problem when it comes to Domestic Violence. The unhelpful police statistics needs to be addressed urgently. While it may not be legally practicable to create one crime of domestic violence (given the diverse acts), it should be possible for the police to record the relationship between the offender and victim and to routinely report on this. In South Africa we have a National Register for Sex Offenders, maybe the time has arrived to implement a National Register of Domestic Violence Offenders.
Bertus Preller - Family Law Attorney
Bertus Preller & Associates Inc.
T: +27 21 422 2461
WT & others v KT (933/2013) ZASCA 9 (13 March 2015)
The Supreme Court of Appeal handed down judgment in a case concerning whether assets of a discretionary family trust form part of the joint estate of parties married in community of property.
W (the plaintiff in the court below and the first appellant) who was married to K (the defendant in the court below and the respondent) in community of property, instituted divorce action in the Gauteng Local Division, claiming a decree of divorce as well as ancillary relief. Whilst K did not oppose the decree of divorce sought by her husband, she filed a counterclaim relating to the extent of the assets of their joint estate. In her counterclaim, K claimed that assets of a trust established prior to the marriage formed part of the joint estate of the parties.
K’s contention that assets of the trust formed part of the joint estate was based on:
(a) W deceiving her.
(b) The trust being W’s alter ego.
The high court found in favour of K that the joint estate included the assets of the trust. On appeal, the SCA held that there was no evidence supporting K’s contention of W’s deception. The SCA further held that K’s belief that she would be an equal owner of the matrimonial home, which had been registered in the name of the trust, was not corroborated and was improbable given the undisputed evidence relating to establishment of the trust.
Get the full judgement on the link below:
The case of M v B (10175/2013)  ZAKZPHC 49) concerned an application for an interdict restraining the respondent from posting further defamatory postings about the applicant on her Facebook page.Earlier decisions by Satchwell J in Dutch Reformed Church Vergesig & another v Sooknunan 2012 (6) SA 201) (GSJ) and Willis J (as he then was) in H v W  2 All SA 218 (GSJ) contain a comprehensive description of the various terms associated with social networking and Facebook.
The parties involved in the present application, RM, the applicant and the father of the child, and RB, the respondent and the mother of the child, had been in a relationship. They were the biological parents of a five-year-old daughter. The applicant and respondent were never married. The child stayed with the respondent. In terms of an arrangement the applicant had contact with his daughter every alternate weekend. After one such weekend the respondent made certain postings on her Facebook page relating to the applicant’s care of their daughter and referring to the use of alcohol and drugs.
A Facebook debate ensued with many of the respondent’s Facebook ‘friends’ critical of the applicant’s behaviour. At the time of the posting the respondent had 592 ‘Facebook friends’. The applicant alleged that the postings had defamed him as a father and were detrimental to his business reputation. He approached the High Court for an urgent interdict ordering the respondent to –
(a) remove the messages from her Facebook page;
(b) refrain from posting further defamatory statements about him on her Facebook; and
(c) refrain from publishing defamatory statements about him in any other way.
Satisfied that a prima facie case had been made for relief, the court granted a rule nisi as prayed for. In the application for final relief the main area of dispute concerned the ability of the court to restrain material not yet known to the court as per (b) and (c) above.
Chetty J pointed out that other than a denial that the postings were defamatory, the respondent did not make out any argument of the public interest in respect of the statements attributed to the applicant. The rule nisi had therefore to be confirmed in respect of prayer (a).
The court held that not every defamatory statement about the applicant by the respondent would be actionable. If she were to repeat her conduct in the future and make derogatory or defamatory statements about him, the applicant could always approach the court for relief in the form of an interdict or sue for damages. The court further held that despite the possibility of defamatory postings on the internet posing a significant risk to the reputational integrity of individuals, to have granted the relief sought in prayers (b) and (c) above, would have been too drastic a limitation and restraint on the respondent’s freedom of expression. The court accordingly dismissed prayers (b) and (c).
As a case had been made on the papers by the applicant for the first part of the rule nisi it was accordingly confirmed. The respondent was ordered to pay the costs of the application.
Financial Services Laws General Amendment Act changes: Living Annuities and divorce
Section 37D(1)(d) of the Pension Funds Act previously permitted for deductions (in terms of a divorce order as contemplated in section 7(8) of the Divorce Act) to be made from the member’s benefit or minimum individual reserve.
The section was recently amended by the Financial Services Laws General Amendment Act. As of 28 February 2014, Section 37D(1)(d) of the Pension Funds Act states that a registered fund may:
"deduct from a member’s or deferred pensioner’s benefit, member’s interest or minimum individual reserve, or the capital value of a pensioner’s pension after retirement, as the case may be – ”
What is the effect of the amendment?
The effect is that the deductions in section 37D in respect of maintenance and divorce orders as well as income tax have been extended to the "member’s interest and capital value of a pensioner’s pension after retirement”.
The question now really is whether "capital value of a pensioner’s pension after retirement" includes annuities purchased post-retirement, like an Investment-Linked Living Annuity (ILLA). If so, does this mean a non-member spouse may now claim from such annuities as part of a divorce order? The answer is no if regard is had to the below:
1. Pension Funds Act 24 of 1956
As a general rule a fund may only make a deduction from a member’s benefit if such a deduction is permitted in terms of the Pension Funds Act, the Income Tax Act and the Maintenance Act. This general rule however has exceptions as set out in section 37D.
Section 37D(1)(d)(i) now reads that a registered fund may deduct from "a member’s or deferred pensioner’s benefit, member’s interest or minimum individual reserve, or the capital value of a pensioner’s pension after retirement as the case may be) any amount assigned from such benefit or individual reserve to a non-member spouse in terms of a decree granted under section 7 (8) (a) of the Divorce Act, 1979 (Act No. 70 of 1979)”.
The key terms (underlined above) are defined in the Pension Funds Act as follows:
· "Deferred pensioner” is defined as a member who has not yet retired but left the service of the employer concerned prior to normal retirement date leaving in the fund the member’s rights to such benefits as may be defined in the rules.
· "Member” is defined as meaning, in relation to --
- a fund referred to in paragraph (a) of the definition of "pension fund organisation”, any member or former member of the association by which such fund has been established;
- a fund referred to in paragraph (b) of that definition, a person who belongs or belonged to a class of persons for whose benefit that fund has been established,
(a) but does not include any such member or former member or person who has received all the benefits which may be due to him from the fund and whose membership has thereafter been terminated in accordance with the rules of the fund;
· "Pensioner” is defined as meaning a person who is in receipt of a pension paid from the fund.
Once a member retires and purchases a member owned annuity, he is no longer a member of the fund – he has effectively received all the benefits which may be due to him from the fund and his membership will thereafter be terminated in accordance with the rules of the fund.
Moreover, the words "the capital value of a pensioner’s pension after retirement” explicitly refers to "pensioner”, which in turn refers to the fund.
Even if you argue that this aims to include a pension paid by the fund (i.e. a fund owned annuity), where the fund still has commitments to the member, it would still not have any force or effect until the definition of "pension interest” in the Divorce Act is amended to include this.
It’s also interesting to note that section 37D(6) of the Pension Funds Act has been amended only to add the reference to "deferred pensioners”:
"(6) Despite paragraph (b) of the definition of "pension interest” in section 1 (1) of the Divorce Act, 1979 (Act 70 of 1979), the portion of the pension interest of a member or a deferred pensioner of a pension preservation fund or provident preservation fund, that is assigned to a non-member spouse, refers to the equivalent portion of the benefits to which that member would have been entitled in terms of the rules of the fund if his or her membership of the fund terminated, or the member or deferred pensioner retired on the date on which the decree was granted.”
2. Divorce Act 70 of 1979
Section 7(7) of the Divorce Act provides that a 'pension interest' (as defined in section 1) will be deemed to be a part of the assets at divorce:
"7) a) In the determination of the patrimonial benefits to which the parties to any divorce action may be entitled, the pension interest of a party shall, subject to paragraphs (b) and (c), be deemed to be part of his assets”
The wording of section 7(7) makes it clear that the non-member spouse is only permitted to a portion of the member spouse’s notional benefit if it qualifies as "pension interest” as defined.
"Pension interest” is defined in section 1 as referring to the benefits to which such member would have been entitled in terms of the rules of the fund if his membership of the fund would have been terminated on the date of the divorce on account of his resignation from his office, i.e. the member spouse must still hold a pension interest in the fund as at the date of divorce.
If a resignation benefit had already become payable to him before the divorce, he could not again be deemed to become entitled to a resignation benefit at the date of divorce. He would therefore no longer have a "pension interest” for the purposes of sections 7(7) and 7(8) of the Divorce Act read together with section 37D(4)(a) of the Pension Funds Act.
The Financial Services Law General Amendment Act has not made any amendments to the definition as quoted above and ccordingly, annuities purchased post-retirement remain excluded.
It might have been the intention of the legislature to close the "loophole” whereby someone can retire from a fund and purchase an annuity thereby effectively excluding it from the scope of section 7(7) and 7(8) of the Divorce Act. However, until the definition of "pension interest” in section 1 of the Divorce Act is accordingly amended, the changes will not affect annuities purchased upon retirement.
The primary issue between the parties had been whether the law of Mauritius or of South Africa governed their proprietary rights upon divorce. Put simply, the proper law of the marriage had to be determined.
The parties were married to each other on 29 June 1983 in Mauritius. A month later they moved to South Africa and continued to live here until their divorce in November 2011. In about July 2006 the respondent, the wife (plaintiff in the court below) sued the appellant, the husband (defendant in the court below) for divorce in the South Gauteng High Court, Johannesburg, contending that the marriage relationship between her and the respondent had irretrievably broken down.
In her particulars of claim the plaintiff alleged that at the time of her marriage to the defendant he was domiciled in Mauritius and that the proprietary consequences of the marriage ‘are governed by the law of Mauritius’, alternatively, that the parties were married to each other in Mauritius according to the laws of South Africa and that the proprietary consequences of the marriage ‘are accordingly governed by the law of South Africa’. On either basis, she alleged that during the subsistence of the marriage she had contributed to the maintenance and or increase of the husband's estate by the rendering of services and the saving of expenses, which otherwise would have been incurred. She listed the contributions she had made in cash and in kind. She claimed that it was just and equitable that her husband be directed to transfer to her such part of his assets so as to effect an equal division between the parties of their combined net asset values, alternatively, that he pay to her the monetary equivalent thereof. In a further alternative she claimed that the parties were married according to South African law in community of property.
In his plea the husband pleaded that at the time of their marriage he and his wife had agreed that their matrimonial regime would be governed in terms of the provisions of Mauritian law, and in particular in terms of the provisions of the regime legal de separation de biens - separation of goods. The husband pleaded that at the time of the marriage, he and his wife had made a declaration that their marriage was to be governed by the regime legal de separation de biens which was recorded by a marriage officer. The husband pleaded further that in terms of the said regime each party retains its separate estate during the marriage and on dissolution thereof, neither party has a claim against the estate of the other party.
At common law, the proprietary rights of spouses are governed, in the absence of express agreement, by the law of the husband’s domicile at the time of the marriage (lex domicilii matrimonii or the law of the matrimonial domicile) (Frankel’s Estate & another v The Master & another 1950 (1) SA 220 (A) at 241; Sperling v Sperling 1975 (3) SA 707 (A) at 716F-G; Esterhuizen v Esterhuizen 1999 (1) SA 492 (C) at 494C-D; C F Forsyth Private International Law: The Modern Roman-Dutch Law Including the Jurisdiction of the High Courts 5 ed 2012 at 295). The rationale for this rule, according to the Roman Dutch and Civilian authorities, is that the parties are assumed in the absence of any indication to the contrary, to have intended to establish their matrimonial home in the country where the husband was domiciled at the time of the marriage and to have submitted themselves to the matrimonial regime obtaining in that country.
This court assessed the evidence and determined that, at the time of his marriage, the appellant had in fact been domiciled in Mauritius, and accordingly that Mauritian law governs the proprietary regime of the marriage. In analysing Mauritian law, this court held that the separation of goods regime provides that each party to a marriage retains its separate estate during the marriage, and that on dissolution thereof neither party has a claim against the estate of the other unless they have funded the acquisition of particular assets in the other party’s estate, to which they would then be entitled a share. However, as in this matter there is insufficient evidence to show that the respondent contributed to the acquisition of either of the properties of which she sought a share, she has not made out a claim to either of them. Accordingly, the appeal is upheld with costs, and the respondent’s claim for 50 per cent of the value for the properties concerned is dismissed.
In terms of the Pension Funds Act, No 24 of 1956 and the Government Employees Pension Law Amendment Act, No 21 of 1996, the pension interest is payable at the time of divorce. This is known as the 'clean-break' principle).
Until recently, however, a payment governed by the Post Office Act is only payable upon termination of membership by the member in the fund (through death, retirement or resignation).
In the decision of Ngewu and another v Post Office Retirement Fund and others  1 BPLR 1 (CC), the Constitutional Court had to decide when pension benefits accrue to divorced spouses where Mrs Ngewu was married to a Post Office employee who was a member of the Post Office Retirement Fund. It was common cause that Mrs Ngewu was entitled to a 50% share of her husband’s pension interest. However, under the rules of the Fund, her share would not accrue upon divorce but only when Mr Ngewu terminated his membership in the Fund.
All parties agreed that the Post Office Act, No 44 of 1958 was unconstitutional in so far as it did not provide for the payment of the pension interest at the time of divorce.
The Constitutional Court held that this differentiation violated the right of equality before the law and equal protection and benefit of the law. Consequently, the Constitutional Court declared s10 to 10E of the Post Office Act unconstitutional but ordered that the declaration of invalidity be suspended for eight months for the legislature to cure the defect. The defect was subsequently cured in terms of the Government Employees Pension Law Amendment Act.
As a result of the judgments in the present case as well as the Wiese v Government Employees Pension Fund and Others (CCT 111/11) 2012 (6) BCLR 599 (CC) case, the assigned portion of the pension interest would be deemed to have accrued as is payable on the date of the divorce order.
The decision in MB v DB 2013 (6) SA 86 (KZD) concerned a divorce action between parties married out of community of property with the application of the accrual system. The issue was which party bore the onus of proof with regard to the nature and quantum of the assets excluded in their antenuptial contract from forming part of the accrual in the defendant’s (the husband’s) estate. The plaintiff (wife) relied on the evidence of a chartered accountant to prove the value of the husband’s estate and, therefore, of her potential share of the accrual. The husband led no evidence to demonstrate how he had dealt with the excluded assets over time, instead contending, inter alia, that:
Lopes J held that it was the husband, being the one in possession of all the facts relating to the assets reflected as excluded in the antenuptial contract, who bore the onus of proving which assets were to be excluded and why; to demonstrate what had happened to those assets, how they were converted from time to time, and what their present values were that fell to be excluded from the calculation of his net worth.
The operative moment when the value of the respective estates of the parties had to be assessed was at litis contestatio, (ie, close of pleadings) not when the divorce order was made.
Because the husband led no evidence to demonstrate how the excluded assets were dealt with by him from time to time, the court held that it would not be possible to determine what had happened to those excluded assets without making reasonable deductions from the discovered documents.
The court reasoned that South African courts should follow the approach to evidence adopted in a number of English cases when dealing with failure by a party to discharge his or her duty to disclose financial information in divorce proceedings. In terms of the approach followed in English law, courts were entitled to draw inferences (where they can be properly made) and to take notice of inherent probabilities in deciding whether or not assets formed part of the non-discloser’s estate.
The court accordingly ordered the division of the husband’s estate, the exact details of which fall outside the scope of the present discussion. The husband was ordered to pay the costs of the present action.
Cases and Articles on Divorce Law and Family Law in the SA courts.
Legal news and case law in the South African courts, compiled by Family Law attorney, Bertus Preller.
Bertus Preller is a Family Law and Divorce Law Attorney in Cape Town.