TC V SC - Case no: 20286/2017 – Cape Town High Court
Judgment delivered on 18 April 2018
Case Summary - Facilitation in Child Disputes
In an application in terms of Rule 43 for interim relief pending a matrimonial action the core issue was whether the High Court had the power, by virtue of its inherent jurisdiction as the upper guardian of minor children, to make an interim order appointing a facilitator to deal with parenting disputes over the objection of one of the parents. The applicant ("father") and the respondent ("mother") were in the midst of an acrimonious divorce. They had two young boys, "C", age 9, and "M", age 7.
In this case, Judge Denis Davis who presided over the matter observed:
“…. sadly often the case in divorce situations, the conflict generated by the breakdown of the marital relationship spilled over into the parenting relationship. The children became an arena of struggle where spousal conflict played out in the form of disputes about care and contact and other parenting issues”.
As commonly in many divorce cases where children are involved the family dynamics in the case were complex. The mother and the father had been characterized by their experts as "high conflict", ie, a type of person who manifests all or-nothing thinking, inflexibility, unwillingness to compromise, and a tendency to accuse and blame. Both parents accused each other of alcohol abuse, the allegations against the father implying a significant risk for the children. And then there was the fact that C was a "high needs child": he suffered from insulin dependent diabetes mellitus - a chronic, potentially life-threatening disease which required round the clock management - as well as autism spectrum disorder ("ASD"), and possibly also from attention deficit hyperactivity disorder ("ADHD"). (The suspected diagnosis of ADHD had yet to be confirmed following an evaluation.) C's issues presented a particular challenge for co-parenting in the family, as the potential for different approaches to the proper treatment of C provided fertile ground for frequent and ongoing conflict between the parents.
The father was aggrieved since he claimed that his contact with the children was unfairly restricted by the mother since they separated in 2016, based on what he regarded as spurious or exaggerated allegations of alcohol abuse and poor diabetic management on his part.
The father instituted action for divorce on 22 June 2016 ("the action"). In the action he sought inter alia an order regulating shared parental responsibilities and rights in respect of the children. However, the mother in her counterclaim sought an order that the father's contact with the children had to be supervised because of his history of alcohol abuse.
The Expert Report
After their separation, the father and mother were unable to agree on what was in the children's best interests. Each one appointed an expert to conduct an assessment and made recommendations regarding appropriate care and contact arrangements and other parenting matters. The experts so appointed, Ms Leigh Pettigrew ("Pettigrew") for the father and Ms Pam Tudin (''Tudin") for the mother ("the experts"), were mandated in terms of a Court order dated 13 June 2017 to file a joint report containing such recommendations.
Pettigrew and Tudin mentioned that they had developed a modus operandi where they were able to collaborate on the same case, despite having been appointed by opposing parties, on the basis that they both attended all consultations and interviews with children, parents and collaterals, had sight of all correspondence received from the parties, shared all pertinent information and wrote up a joint report reflecting areas of agreement and disagreement.
The reason for this novel and commendable approach was set out in a joint minute of interim care and contact arrangements, dated 3 April 2017, in which the experts stated that:
"The writers felt that given the high levels of conflict in this matter, given the fact this matter has been ongoing for a significant period of time, given that there is no obvious indication that the matter will settle any time shortly, and finally, given that the children have been exposed to a great deal of acrimony, the writers are strongly of the opinion that this model of assessment will serve to reduce the potential for setting the experts up to sustain conflict. Rather the model aims to calm the situation by virtue of its capacity to hold both party's [sic] views without it offering them a chance to use the same to perpetuate unnecessary differences at the children's expense. Both parties expressed their agreement with this assessment model to Ms Pettigrew and Ms Tudin."
The experts performed an in-depth assessment of the family, working separately prior to March 2017 and together thereafter 2017. Their joint report was eventually completed on 15 September 2017 ("the PT report"). The investigation was a Herculean effort which took 73% hours (excluding report writing) over a period of almost 13 months. The PT report recorded that the experts spent almost 30 hours interviewing and observing the parties and the children, and 17% hours interviewing 22 collateral sources which included 7 experts, notably Dr Carrihill, a Paediatric Endocrinologist and Jana Forrester, an Educational Psychologist and specialist on ASD, both of whom had been involved in treating C. Significantly however, no mention was made in the PT report of the experts having consulted with Dr Lesley Carew, the child psychiatrist who has been involved in treating C for anxiety since 2012 ("Dr Carew").
The PT report contained a comprehensive set of recommendations for care and contact in respect of C and M, which included:
In the latter regard, the PT report contained the following paragraph which according to the Judge was significant:
"It has been strongly recommended by Dr Carrihi/1 that C needs to be on the Medtronic Enlite system sooner rather than later, in C's best interests, in order that more accurate monitoring, amongst other reasons, can take place so that 'safety and control of diabetes management' is better. In this regard both parties are to ensure that C is on this svstem bv no later than November 2017." [Emphasis added.]
Soon after the release of the PT report on 15 September 2017, and as is usually the case in divorce cases conflict arose between the mother and the father regarding the status and implementation of the recommendations. The father evidently wanted to see that all the recommendations had to be implemented immediately, while the mother was apparently in no hurry to do so. Her attitude was that the recommendations were subject to negotiation between the parties and would only become binding if and when sanctioned by an order of Court following the trial.
The father's attorney wrote to the mother's attorney in October 2017, demanding confirmation that the mother agreed to abide by the recommendations of the experts - particularly those in regard to extended contact - failing which an urgent application would be made to court for the immediate implementation of the experts' recommendations pendente lite (in the interim pending the divorce). No mention was made in the October 2017 letter regarding C's diabetes and the need to use the Medtronic Enlite sensor.
The mother's position at that stage, as conveyed in her attorney's response in October 2017, was that she was prepared to agree to the extended weekend contact, but not to the mid-week sleepover contact, which she felt would be too disruptive for the children. She also objected to being forced to have a carer present at all times while the children were with her, as she felt that there was no basis for this requirement in her case as opposed to that of the father. Another bone of contention was where the children were going to spend Christmas 2017.
In November 2017 the father's attorney wrote to the mother's attorney suggesting a round table meeting the next day for the purpose of reaching agreement on the issues in dispute regarding the experts' recommendations and resolving the regulation of the parties' parental rights and responsibilities. It was stated in the letter that:
"If, however, agreement is not reached pursuant to the meeting, our instructions are to proceed with an urgent application as the current situation is untenable and not in the children's best interests. Of particular concern to our client is the implementation of the contact arrangements, including holiday contact, the management of C's diabetes in accordance with Dr Carrihi/J's recommendations, including C's use of the Medtronic Enlite sensor in accordance with paragraph 116. 2 of the recommendations, which ought to have been implemented from today and the appointment of a facilitator team (paragraph 112 of the recommendations). In respect of this last issue and to the extent that your client is raising issues, as is my client, regarding the best interests of the children, the immediate appointment of the facilitators will allow for the resolution of the disputes within that forum." [Emphasis added.]
The proposed settlement conference unfortunately did not take place in November 2017 as the parties could not agree on what was to be dealt with at the meeting. The mother was vehemently opposed to a piecemeal settlement of the divorce, while the father was equally adamant that discussion would only be entertained regarding the parental rights and obligations of the parties and would not extend to financial issues.
On 1 November 2017, evidently in expectation that the proposed settlement meeting would not happen, and that litigation was imminent, the mother's attorney wrote to the father's attorney and conveyed that the mother was amenable to the extended weekend contact proposed by the experts, but not the mid-week sleepovers. She did however tender midweek contact every alternate Wednesday afternoon after school until 19h00. It was pointed out that the remaining dispute in regard to contact concerning 1 night in a 14-day cycle hardly warranted an urgent approach to court, especially when the allocation of a trial date was imminent. It was recorded that any application to enforce additional contact would be strenuously opposed.
The Court Application
Notwithstanding this warning, the father on 6 November 2017 launched an application for urgent relief in terms of Rule 43, with an urgent hearing sought on 21 November 2017. In terms of the notice of motion urgent interim orders were sought:
Annexure "X" to the notice of motion was a 21-page document which was not signed by the parties, but which, in every other respect, resembled a parenting plan envisaged in sections 33 and 34 of the Children's Act 38 of 2005 ("the Act"). It also contained detailed provisions pertaining to the care and contact of C and M, based on the recommendations in the PT report. The contents of annexure "X" were not couched as interim measures pendent lite, but as a long-term provisions regulating the parties' parental rights and responsibilities in respect of C and M. As Annexure "A" was essentially a draft parenting plan.
The draft parenting plan inter alia made provision for:
The application was opposed by the mother, who delivered an answering affidavit on 20 November 2017 wherein she disputed the alleged urgency of the matter and the attempt to impose on her the terms of a parenting plan to which she had not agreed. In particular the mother objected to the appointment of facilitators without her consent, the forced change of C's insulin pump-sensor by 30 November 2017, the imposition of a mid-week sleepover every alternative week and the insistence that the mother have a carer present from 19h00 until 07h00 at all times when the children are with her.
Adv Pincus SC, who appeared with Adv Reilly for the mother, argued that the Court did not have jurisdiction to grant an order in the terms sought in prayer 2 of the Notice of Motion on the grounds that:
Adv Dicker SC, who appeared for the father, contended that the document in annexure "X" was not a parenting plan but a draft order containing detailed measures for regulating care and contact arrangements in respect of C and M pendente lite. She argued that the Court, as the upper guardian of minor children, can make any such order as may be required, and in such detail as may be necessary, in order to regulate care and contact arrangements in the best interests of minor children. She contended that the appointment of a facilitator in this case was necessary to avoid ongoing conflict and litigation between the parties about parenting issues, which was detrimental to the well-being of C and M, and that the Court had the power to make such an order in terms of its inherent jurisdiction as upper guardian.
Judge Davis was of the view that if annexure "X" was regarded as an unsigned parenting plan, then Mr Pincus was clearly correct that it cannot be made an order of court. On the other hand, if annexure "X" was regarded in substance as a draft order containing provisions regulating care and contact arrangements, then it would be highly pedantic to refuse to grant any relief in terms thereof merely because the "prayers" were contained in a document annexed to the notice of motion as opposed to being set out individually in the notice of motion. And when Courts are dealing with children care must be taken that the interests of minors were not "held to ransom for the sake of legal niceties" or "mechanically sacrificed on the altar of jurisdictional formalism”.
As regards the appointment of a facilitator, Judge Davis indicated to Counsel during the hearing on 21 November 2017 that the question whether or not the Court has jurisdiction to appoint a facilitator to non-consenting parents was one of importance which required time for further research and consideration.
Does the court have the power to impose a facilitator on parents in the absence of consent by both parents?
The alternative dispute resolution process referred to as facilitation in the Western Cape, and as case management in Gauteng, is known internationally as parenting co-ordination. Judge Davis used the term parenting coordination and parenting coordinator ("PC") respectively.
Parenting coordination is a non-adversarial dispute resolution service provided by mental health professionals or family law lawyers who assist high conflict parents in divorce situations to resolve child-related disputes in an expeditious and child-focused manner, in order to minimise parental conflict with its associated risks for children. According to Judge Davis it was a sui generis process which required legal, psychological and conflict resolution skills, and combines assessment, education, case management, conflict management and decision-making functions.
Parenting coordination evolved in response to the widespread recognition that the level and intensity of the parental conflict prior, during, and after divorce proceedings, rather than the divorce itself, is thought to be the most dominant factor in a child's psychological and social development post- divorce. Exposure to conflict can result in problems such as perpetual emotional turmoil, depression, substance abuse, and educational failure.
The Association of Family and Conciliation Courts ("AFCC"), an international, interdisciplinary association of professionals which has published guidelines for parent coordination, described it as "a child-focused alternative dispute resolution process in which a mental health or legal professional with mediation training and experience assists high conflict parents to implement their parenting plan by facilitating the resolution of their disputes in a timely manner, educating parents about children's needs, and with the prior approval of the parties and/or the court, making decisions within the scope of the court order or appointment contract."
Thirteen states in the United States of America had adopted statues or court rules permitting parenting coordination, some with and some without decision-making authority, and that at least ten states were using parenting coordination without specific authority. That number has doubtless since increased.
In South African there is presently no statute or court rule governing the appointment of parenting coordinators. The practice which has developed in the Western Cape was that divorcing parents, acting on the recommendations of their legal and mental health advisers, consent to the appointment of a PC who is assigned with mediating parenting disputes between the parties and, where mediation has not been successful, empowered to make directives which are binding until set aside by the Court on review. The agreement to appoint a PC is usually embodied in a consent paper or parenting plan which is made an order of Court when the parties divorced. An agreement to appoint a PC may also be embodied in an interim parenting arrangement which is made an order of Court during Rule 43 proceedings for interim relief pendente lite.
The Western Cape Courts had over the years appointed PC's by agreement between the parties, or at least in circumstances where its power to appoint a PC was not pertinently challenged by one of the parties, the question of whether or not the appointment of a PC constituted an unlawful delegation of judicial authority was the issue before Judge Davis. The mother opposed the appointment of a PC, and the point raised by Adv Pincus was that the appointment of a PC with decision-making power to break deadlocks between parents is an impermissible delegation of the Court's judicial authority.
Adv Pincus relied on the decision of the South Gauteng High Court in Hummel v Hummel in which the Court refused an opposed application for the appointment of a PC empowered to make decisions binding on both parents. Sutherland J in that case held that no court has the jurisdictional competence to appoint a third party to make decisions on behalf of parents in relation to their children.
Adv Pincus also referred the court to the decision in Wright v Wright, in which Van Staden AJ, in the face of opposition by the mother to the appointment of a new PC to replace one which had resigned, declined the father's request for the appointment of a replacement PC. Van Staden AJ referred to the decision in Hummel, with apparent approval, and went on to hold that in the particular case before him parenting coordination was not a practical alternative since the mother was opposed to it and the father had been unhappy with the rulings made by the previous PC. He was of the view that in these circumstances the parties would have to agree to accept the reasonable determinations of a PC as final before parenting coordination would be a practical option. Although the decision in Wright might, at first blush, be construed as support for the statement of principle laid down in Hummel, it seemed to Judge Davis that a closer examination of Van Staden AJ's reasoning in Wright showed that the decision was based not on principle but on expedience in that the Court declined to appoint a PC because the resistant attitude of the parties meant that parenting coordination was unlikely to work.
Adv Dicker argued that the Court had the power to appoint a PC notwithstanding the opposition of a parent where it would be in the best interests of the minor child involved. She relied in this regard on section 28(2) of the Constitution of the Republic of South Africa Act 108 of 1996 ("the Constitution"), sections 6(4) 16 and 7(1)(n) of the Act, and the Court's inherent jurisdiction at common law as the upper guardian of all minors.
Adv Dicker referred the court to the decision of Hay v B and Others in which Jajbhay J had to balance a child's right to life against the parent's religious beliefs, which prohibited blood transfusions. The learned Judge held, with reference to the Constitutional principle that the child's best interests were of paramount importance, that:
"The High Court is the upper guardian of all minors and, where it is in the best interests of such minor to receive medical treatment, an order that the minor receive such treatment is appropriate notwithstanding the refusal by the minor's parents to consent to such treatment." [Emphasis added]
Judge Davis was of the opinion that Jajbhay J's approach in Hay demonstrated that a High Court may permissibly resort to its inherent jurisdiction as the upper guardian of minor children in order to fulfil its duty to protect the Constitutional rights of children. And, stated that where necessary, a Court may, in terms of section 173 read with section 39(2) of the Constitution, develop and extend the common law relating to its inherent jurisdiction as upper guardian in order to respect, protect, promote and fulfil the fundamental rights of children.
Adv Dicker also referred Judge Davis to an article by Professor Madelene de Jong in which the learned author argued that there was authority, inter alia on the basis of section 28(2) of the Constitution and the inherent jurisdiction of the Court as upper guardian of minors, to sustain a Court appointment of a PC in the best interests of the child where the parents would otherwise be engaged in frequent conflict and re-litigation. She further suggested appropriate limitations on the appointment of a PC with a view to countering the objection that the appointment of a PC is an improper delegation of judicial authority.
Judge Davis was of the view that the opinion of the judgment in Hummel was prone to the criticism that the Court didn't have an understanding of the proper function of parent coordination. Judge Davis had drawn this conclusion because the court in the Hummel matter regarded the case manager as "a creature of statute invented to facilitate the achievement of the aims of section 33; ie the formulation of a plan and to promote agreement on the provisions of such plan." This conflated the role of the person referred to in section 33(5) of the Act, whose task is to assist the parents to reach agreement on the terms of a parenting plan, with that of the PC, whose proper task is to assist the parents to implement the terms of an agreed parenting plan.
In Hummel the Court held, with reference to section 33(5) and section 34 of the Childrens Act, that there was no hint that a Court could impose a parenting plan on a pair of parents in the absence of agreement. This approach was correct according to Judge Davis. But the Court in the Hummel matter went on to say, with reference to section 33(5) of the Act, that "the role [of] any other 'suitable person' (by any other name, including 'case manager) is to facilitate decision making rather than be the decision-maker." This statement, in the Judge Davis’ view, indicated an erroneous equation of the function contemplated in section 33(5) with that of parenting coordination. According to Judge Davis it was understandable how this confusion of functions arose in Hummel: since in that matter there was no agreed parenting plan and the case manager appointed to monitor contact arrangements had attempted unsuccessfully to assist the parties to agree on a parenting plan, and because parenting disputes were ongoing the court was asked to authorise the case manager to make wide-ranging decisions for the parents absent the framework of an agreed parenting plan.
Section 33(5) of the Children's Act states that:
"In preparing a parenting plan as contemplated in subsection (2) the parties must seek - (a) the assistance of a family advocate, social worker or psychologist; or (b) mediation through a social worker or other suitably qualified person."
Section 34 of the Children's Act deals with the requirements for having a parenting plan registered with the family advocate or made an order of court. In essence the parenting plan must be in writing and signed by the parties, i.e. agreed, and the application to have the parenting plan registered or made an order of court must be brought by both parents.
It just so occurred in Hummel that there was a co-incidence of the functions of the person contemplated in section 33(5) and that of the PC. But the roles were conceptually separate, and Judge Davis warned that care should be taken to treat them as such. In his view it did not follow that because the contents of a parenting plan had to be agreed and could not be imposed on parents, that necessarily meant that the Court could not, in appropriate cases, appoint a PC with limited decision-making powers to assist the parties in implementing the terms of an agreed parenting plan which had been made an order of court.
In Judge Davis’ view the appointment of and powers conferred on a PC should be limited in a number of essential respects in order to avoid an impermissible delegation of judicial authority.
Judge Davis was of the view that parenting coordinators could fulfil a useful purpose in the administration of justice by conserving judicial resources which would otherwise be taken up by high-conflict parents who were frequent litigators regarding post-divorce disputes.
The factors highlighted by Judge Davis
Judge Davis emphasized three factors that provided a useful starting point for a consideration of the limitations which should be imposed on a PC's powers:
According to the court these three considerations provided a roadmap for the limitations which needed to be imposed on the functions and powers of a PC.
Limitations imposed by Judge Davis on PC’s
In the Judge’s view the first and foremost limitation on the appointment of a PC should be that the parties must have already reached agreement on the terms of a parenting plan, whether interim or final, which has been made an order of court, and the PC's role must be limited to addressing implementation of or compliance with an existing court order.
The judge stressed that this requirement, as an agreed parenting plan which had been made an order of court was necessary to provide the framework which delineates the PC's proper function and authority. Without it one ran the risk, of an improper delegation of judicial decision-making power of the type which the Court was being asked to authorise.
The judge made the point that the High Court in South Africa by virtue of the provisions of section 173 of the Constitution enjoys inherent authority to ensure that its orders are carried out and it was well-established that the High Court has inherent jurisdiction to enforce its orders by committal to prison for contempt of court. The judge therefore saw no difficulty, with the notion that the High Court could, in the exercise of its inherent power to protect and regulate its own process, appoint a PC tasked with supervising compliance with the court's order to ensure that its terms were carried out.
The second limitation which Judge Davis proposed on a PC's power was related to and flows from the first, namely that the PC's decision-making power must be confined to ancillary rulings which were necessary to implement the court order, but which do not alter the substance of the court order or involve a permanent change to any of the rights and obligations defined in the court order, so that the PC does not trespass on the Court's exclusive jurisdiction in terms of the Act.
In this regard the decision of the District of Columbia Court of Appeals in Jordan v Jordan provided a useful example. In that case the trial court, which decided the issues of custody and visitation, appointed a PC over the objection of the mother with permission to "make decisions resolving day-to-day conflicts between the parties that do not affect the court's exclusive jurisdiction to determine . . . fundamental issues of custody and visitation" and the trial court's order specifically stated that "[n]othing in this order shall be construed to be or confer on the special master [PC] the right or obligation to make a custody evaluation . . . [or] to make decisions that conflict with the parties' right to make decisions regarding the children's religion or the children's observation of religious requirements."
On appeal the court in Jordan rejected the argument that the trial court lacked authority to appoint a PC over the objection of the mother. It held that the trial court enjoyed authority under a rule which empowered it to appoint and delegate powers and functions to a "special master". While there is no equivalent rule in South Africa, the inherent jurisdiction of the High Court as upper guardian in Judge Davis’ view created a legal basis for a similar appointment. The appeal court in Jordan went on to say:
"Of course, the court's ability to delegate authority to a special master or parenting coordinator has limits. Most clearly, in this context, a trial court may not abdicate its responsibility to decide the core issues of custody and visitation. By statute, when custody of a child is disputed, the trial court must decide what type of custody arrangement is appropriate. In addition, we have held that it is improper for a trial court to delegate decisions regarding a party's right to visitation. In keeping with these limitations, the Special Master Order specified that the parenting coordinator may 'make decisions resolving day-to-day conflicts between the parties that do not affect the court's exclusive jurisdiction to determine fundamental issues of custody and visitation.' The Special Master Order further stated, 'In the event of a dispute between the parties as to issues significantly affecting their children, the Special Master may make decisions regarding the following day to day issues' . . . Thus, the order properly acknowledged and preserved the trial court's responsibility to decide the issues of custody and visitation." (Emphasis in the original].
The reasoning in Jordan was to the effect that a limited delegation to a PC will not amount to an improper delegation of judicial authority if it is confined to decisions about day-to day conflicts which do not trespass on the exclusive jurisdiction of the court to decide the core issues of custody and visitation. By parity of reasoning, an appointment of a PC in South Africa will not constitute an impermissible delegation of judicial power if the PC was not tasked with deciding the various issues referred to in the Act which lie within the exclusive preserve of a court to determine.
In the case of Yates v Yates the Superior Court of Pennsylvania adopted a similar approach to that taken in Jordan. In Yates an appellate court rejected the argument that the decision-making power conferred on a PC was an improper delegation of judicial authority in circumstances where the trial court had already resolved the primary issues relating to legal custody, physical custody and visitation, and had only authorised the PC to resolve "ancillary custody disputes, such as determining temporary variances in the custody schedule, exchanging information and communication, and coordinating [the child's] recreational and extracurricular activities."
A straight forward example helps to illustrate the difference between a decision which is ancillary to the court order and one which operates as an amendment of the court order: the court order stipulates that the child will spend alternate weekends with her parents, and that Mother’s Day will be spent with the mother and Father’s Day with the father. A conflict arises, however, where Mother’s Day falls over the father's weekend and he is unwilling to agree to a change of the weekend schedule. If the PC in these circumstances were to direct that the child should spend the day from 10h00 to 13h00 with the mother on Mother’s Day but the rest of the weekend with the father, such a decision would not amount to a permanent variation of the terms of the consent order since the default position of alternating weekends remains the same. But the ruling of the PC would fulfil a vital function in ensuring the fair implementation of the court order in the best interests of the child: acrimony would be kept to a minimum and the undesirable situation prevented where a party is denied justice because of a lack of time or funds to approach the Court for a decision on a relatively trivial matter.
In Idaho, for example, the parenting coordination rule gives examples of what matters a trial court may authorise a PC to decide, which include: time, place and manner of pickup and delivery of children; child care arrangements; minor alterations to parenting schedule in respect of weeknight, weekend or holiday contact which do not substantially alter the basic time share allocation; participation by significant others and relatives in contact; first and last dates of long holiday contact; schedule and conditions of telephone contact; manner and methods of parental communication; and approval of travel plans. The Idaho rule also specifically precludes a PC from making binding decisions on more significant matters such as: which parent may authorise treatment or counselling for a child; which parent may select a school; supervision of contact; submission to a care and contact assessment, and maintenance for the child. Furthermore, the Idaho rule includes a salutary overall limit that the PC make only make decisions insofar as necessary to serve the best interests of the child. It provides that:
"The goal of the Parenting Coordinator should always be to empower the parents in developing and utilizing adaptive parenting skills so that they can resume the parenting and decision-making role in regard to their own children. When it is not possible for the parents to agree, the Parenting Coordinator shall provide only the amount of direction and service required in order to serve the best interest of the child by minimizing the degree of conflict between the parties." [Emphasis added]
Likewise, in British Columbia, Canada, a parenting coordinator may only make determinations in respect of matters such as a child's daily routine, the participation of the child in extracurricular activities and special events, the provision of routine medical care to the child, transportation and exchange of the child, and contact during vacations and special occasions. A parenting coordinator may not, in British Columbia, make determinations in respect of the relocation of a child or changes to guardianship, the allocation of parental responsibilities or parenting time and contact.
Judge Davis remarked: “The obvious triviality of the sorts of issues which PC's may be authorised to decide should not cause one to lose sight of the importance of the PC's function. Research has shown that high-conflict parents are more prone to arguing about day-to-day issues than major child-related decisions. And it bears emphasis that ongoing parental conflict over minor - even petty - issues can have a major impact on the well-being of children post-divorce. It is no exaggeration to say that the ravages of incessant parental conflict pose a real threat to a child's Constitutional rights to dignity, parental care, and protection from abuse. Entrenched parental conflict, which can have a devastating impact on a child's feelings of security, well-being and self-worth, constitutes a form of emotional abuse of the child. That being the case, I consider it incumbent upon the High Court, in appropriate cases, to "forge new tools and shape innovative remedies" in order to provide an effective remedy against the threat to a child's fundamental rights posed by ongoing parental conflict post-divorce or separation”.
The third limitation on a PC's powers, which Judge Davis regarded as crucial to eliminate an impermissible delegation of judicial authority, was that all decisions of the PC must be subject to comprehensive judicial oversight in the form of a full reconsideration of the decision. This meant that the rulings of the PC, even if they operate immediately pending review, are not final in effect because they are susceptible to alteration by the Court. By permitting a PC's rulings to operate immediately, subject to a party's right to apply to Court for a stay of the ruling pending a review, one strikes a necessary balance between the need for expeditious and effective conflict resolution by the PC and the need for judicial scrutiny of the PC's rulings. If the default position is that a PC's rulings are not operative until such time as they have been endorsed by the Court, the essential rationale for parenting coordination, viz. an expeditious and inexpensive form of dispute resolution which reduces the involvement of the Courts, will be undermined.
The fourth limitation which Judge Davis imposed on the appointment of a parenting coordinator involved a cluster of findings which a Court should, in his view, be a condition precedent to the appointment of a PC in the situation where the parents do not consent both to the appointment of a PC but also to the conferral of limited decision-making powers on the PC.
The necessary determinations or findings are:
Judge Davis made it clear that absent the consent of the parties to the appointment of a PC and the terms of his or her appointment, a Court should not, in his view, impose a PC on parties without conducting the necessary inquiries and making the findings referred to above.
The court in Hummel did admit of the possibility that the High Court's common law power as the upper guardian of minor children may, in exceptional cases, form the basis of a special remedy to achieve an appropriate outcome. Judge Davis shared the view of Sutherland J that circumspection is required when exercising the power conferred by section 38 of the Constitution to craft a remedy for every fundamental right. Judge Davis also agreed that it was not appropriate on the facts in Hummel's case to appoint a PC. But was of the firm view that where there was a court-ordered parenting plan in place, and there was evidence which shows that the child was at risk due to a demonstrated inability or unwillingness of the parents to co-parent peacefully in the best interests of the child, then the circumstances were sufficiently exceptional to warrant the invocation of the court's inherent power both to enforce compliance with its own orders and to ensure protection of fundamental rights.
In summary Judge Davis stated that a High Court may, in the exercise of its inherent jurisdiction as the upper guardian of minor children:
Appoint a PC with the consent of both parties, provided that:
a. there is already an agreed parenting plan in existence, whether interim or final, which has been made an order of court;
b. the role of the PC is expressly limited to supervising the implementation of and compliance with the court order;
c. any decision-making powers conferred on the PC is confined to ancillary rulings which are necessary to implement the court order, but which do not alter the substance of the court order or involve a permanent change to any of the rights and obligations defined in the court order;
d. all rulings or directives of the PC are subject to judicial oversight in the form of an appeal in the wide sense described in Tickly & Others v Johannes N O & Others 1963 (2) SA 588 (T) at 590G - 591A, ie "complete re-hearing of, and fresh determination of the merits of the matter with or without additional evidence or information."
Appoint a PC without the consent of both parties, provided that Court is satisfied not only that the conditions listed in a. to d. above are met, but also that:
e. the welfare of the child is at risk from exposure to chronic parental conflict based on evidence of the parents' inability or unwillingness to co-parent peacefully;
f. mediation has been attempted and was unsuccessful, or is inappropriate in the particular case;
g. the person proposed for appointment as the PC is suitably qualified and experienced to fulfil the role of PC;
h. the fees charged by the proposed PC are fair and reasonable in the light of his or her qualifications and experience, that the parents can afford to pay for the services of the PC, and that at least one of the parents agrees to pay for the services of the PC.
Judge Davis was of the view that the answer to the question of whether or not the Court should appoint a PC in this case where the mother is opposed to such appointment was “no”.
He based his answer on the fact that the contents of the parenting plan had not yet been agreed and aspects of the parenting plan proposed by the father were still hotly disputed. If those disputes were not resolved by negotiation, they would have to be determined by the trial court. Judge Davis stated: Absent an agreed parenting plan which has been made an order of court, what I consider to be an essential precondition for the appointment of a PC, namely that the PC's role be limited to addressing the implementation of or compliance with an existing court order, is lacking.
Judge Davis held further: “…. while it does appear that the parties in this case fall into the category of "high-conflict" parents, this may have to do with the fact that the divorce litigation is still underway so that emotions are running high and the parties have not yet had an opportunity to settle into their new reality. It may turn out to be the case that the parties are able to resolve ongoing parenting conflicts through mediation once the divorce has been finalised and a court order put in place with regard to residence and contact arrangements. Unless both parents consent to the appointment of a PC, parenting coordination should, in my view, only be imposed as a measure of last resort where mediation has first been attempted and has failed, or is not appropriate because of special circumstances, such as domestic violence”.
Judge Davis was of the view that the request for the appointment of a PC at this interim stage of the matter was premature, and he declined, for the reasons set out above, to make an order appointing a PC as requested by the father.
According to Judge Davis it was regrettable that the father saw fit to persist with his application, which has only served to increase legal costs and escalate hostilities between the parties.
The court concluded that there was no reason in this case why the ordinary rule should not apply that the costs follow the result.
In the result Judge Davis made the following order:
A divorced father who botched to honour his child maintenance obligations and disregarded court rulings is now set to have his house sold in execution of his debt towards the child. The Constitutional Court on Thursday dismissed an application for leave to appeal by the man‚ known as SS‚ against a 2015 high court judgment which directed that his house be sold in execution of a R306 000 maintenance debt.
The Constitutional Court did not hear the merits of the man’s appeal‚ in spite of sitting on two occasions‚ due to the fact he did not fully abide by its order made in August that he make payments towards the maintenance of the child. In October last year the man also requested the child – now aged nine – to go through a paternity test. The outcome showed with 99.999994% certainty that he was the father.
The parents married in 2007 but a divorce order was granted by the court in 2010. The child was born during the marriage‚ in September 2008. In terms of the divorce order‚ the man was to pay R2 500 per month towards the maintenance of the child‚ as well as half of the school fees‚ text books‚ extramural activities and uniforms and medical expenses. The man ceased paying maintenance towards the end of 2012 and his debt increased to R306 000 in 2014.
In 2015‚ the mother served an application before the high court in Pretoria pursuing to execute against the man’s immovable property (his house) to satisfy the debt. In August 2015‚ the high court ordered the execution against the man’s property. The man’s application for leave to appeal was dismissed by the Supreme Court of Appeal‚ ensuing in the man approaching the Constitutional Court for relief. When the matter was heard on August 29 last year‚ it surfaced that the man had not paid maintenance since 2014.
The court postponed the matter until November and ordered the man to pay‚ for the benefit of the child‚ at least R150 000 before September 30 and further monthly payments. When the hearing resumed in November‚ the man had only paid R150 000 but did not pay the further monthly payments as ordered by the court. In a unanimous judgment written by Acting Justice Jody Kollapen on Thursday‚ he said it was not in the interests of justice for the man to vent his argument on the merits of the appeal.
“Those interests will not be best served and will be undermined if the [man] is allowed to proceed and deal with the merits of the appeal in the absence of him remedying his conduct by complying with the August order. “It will dilute the potency of the judicial authority and it will send a chilling message to litigants that orders of court may well be ignored with no consequence‚” Kollapen said. The court conveyed dismay that in October‚ the man asked for the child undergo a paternity test. Kollapen said impressive as its powers were‚ no court could direct a parent to love and recognise a child.
A summary of the judgement appears below:
SS v VV-S  ZACC 5
 This was an application for leave to appeal against the judgment and order of the High Court of South Africa, Gauteng Division, Pretoria, (High Court) per Magardie AJ. The High Court granted an order authorising the issue of a warrant of execution against the applicant’s immovable property. The warrant issued was in respect of maintenance obligations due by the applicant to the respondent in respect of the minor child born of the erstwhile marriage between the parties.
 The applicant was the former husband of the respondent.
 The applicant and respondent were married in 2007 and a child, K, was born during the course of that marriage in September 2008. The marriage was of short duration as divorce proceedings were started in March 2008. On 29 October 2010, an order of divorce was granted by the High Court which included the terms of a settlement agreement between the applicant and respondent (Order). That agreement dealt substantially with the interests of the minor child including matters relating to guardianship, care and contact, and maintenance. The terms of the Order in so far as maintenance was concerned, provided that:
“The [applicant] shall pay the [respondent] the sum of R2500 (two thousand five hundred rand) per month for the maintenance of [K] (the basic maintenance payment);
a) The above amount will be paid monthly in advance of the last day of each month. The basic maintenance payment will be deposited into the [respondent’s] bank account;
b) The basic maintenance payments shall increase by the consumer price index on the anniversary of the signing of this agreement and on all subsequent anniversaries thereafter;
c) In addition to the basic maintenance payments, the [applicant] shall be liable for half (50%) of [K’s] crèche / school fees and the [respondent] shall be liable for the remaining half (50%);
d) Each party will be liable for half (50%) of all costs of [K’s] text books, school uniforms, reasonably required extra lessons, extra mural activities and uniforms, equipment, school outings and tours and other necessarily related educational expenses and the like;
e) The [applicant] will be liable for 50% of [K’s] medical, dental, pharmaceutical, ophthalmic, specialist and other related medical expenses reasonably incurred that are not covered by the [applicant’s] medical aid scheme.”
 The agreement clearly distinguished between what it detailed as the basic maintenance amount and then what may be described as the additional amounts, the latter relating to the educational and medical expenses in respect of the minor child. The dispute which arosed related to the applicant’s alleged failure to honour his maintenance obligations under the Order’s terms. The exact extent of his default was unclear from the record but some clarity, though not sufficient, emerged during the course of the Court’s first hearing of the matter.
 The respondent and K moved on a temporary basis to the United States of America (United States) and resided there from May 2010 to January 2014. On 18 February 2014, and upon her return from the United States, the respondent caused a warrant of execution to be issued out of the High Court against the applicant in the sum of R 306 550.18. The warrant issued was in respect of the movable goods of the applicant.
 The issue of the warrant was supported by an affidavit filed with the Registrar by the respondent in which she purported to particularise the applicant’s default in the sum of R306 550.18 under the different heads of maintenance. The respondent detailed that maintenance owing was the “increase [in] the maintenance by [6%] in October 2011” and subsequently “the maintenance again increased by 5.6% in October 2012 [and] . . . [t]he [applicant] has failed, since November 2005 to February 2014, to pay any maintenance whatsoever”. She annexed various lists to the affidavit which provided a monthly breakdown of what she alleged was in arrears and detailed the non-payment of maintenance, school fees, medical expenses, and extra mural activities. The respondent provided no corroborative evidence for the school fees, medical expenses, and extramural activities in the form of receipts, vouchers, invoices, tax returns or bank statements.
 The Sheriff of the High Court, Pretoria East (Sheriff), tried to execute the warrant issued by the Registrar and on 22 February 2014 issued a nulla bona (no goods) return, thereby confirming that the applicant had no movable assets to satisfy the amount set out in the warrant.
 The applicant disputed the correctness of the nulla bona return and offered a different account of what occurred during the attempt by the Sheriff to execute upon the warrant, but nothing turned on that dispute and no more needed to be said about it.
 The applicant brought an application before the High Court to set aside the warrant of execution issued during February 2014. That application was dismissed with costs on 11 November 2014.
 In January 2015, the respondent proceeded with an application in terms of rule 46(1)(a)(ii) of the Uniform Rules of Court, seeking to execute against the applicant’s immovable property.
 The application was opposed by the applicant who raised two preliminary points, the first being the non-joinder of the bondholder in respect of the property against which execution was sought and the second that a proper case had not been made out in terms of rule 46(1). In particular, the applicant contended that the respondent had not set out all the material and relevant considerations that the Court was obliged to consider in the granting of the relief sought.
 On the key question of the maintenance arrears which was central to the respondent’s case, the stance of the applicant was somewhat ambivalent. In paragraph 2.3 of the applicant’s answering affidavit, he conceded that:
“The application is aimed at recovering maintenance arrears which I currently owe to the [respondent]. I have fully acknowledged my indebtedness to the [respondent] in this regard.”
The court considered the tenor of his stance taken throughout the dispute and came to the conclusion that, while the applicant did not dispute his legal obligation to pay both the basic and additional maintenance, his view was that the additional maintenance amounts were not properly quantified by reference to vouchers and proof of payment. The latter approach was, according to the court more in accord with what it described as the applicant’s general basis of opposition and his admission in paragraph 2.3 of his answering affidavit had to be considered in this broader context. Fairness and justice the court found certainly supported such an approach.
 On 19 August 2015, the High Court ordered execution against the applicant’s immovable property and, in doing so, made reference to what she regarded as the “revolting attitude towards the [respondent] and the minor child as well as his elaborate efforts aimed at frustrating compliance with his maintenance obligations”.
 An application for leave to appeal was dismissed with costs on 2 March 2016 and a similar fate befell the application for leave to appeal to the Supreme Court of Appeal.
In this Constitutional Court
 The applicant applied for leave to appeal, which was opposed by the respondent. This Court requested written submissions and, following receipt of these from the parties, this Court issued further directions on 10 May 2017 in the following terms:
“1. The application for leave to appeal is set down for hearing on Tuesday, 29 August 2017 at 10h00 in regard to the following issues:
a) Leave to appeal.
i) whether the amount of R306 550.18 was a judgment debt and whether, therefore, the applicant and the respondent had a judgment debtor-judgment creditor relationship in respect of that amount; and
ii) whether the High Court used the Rule 46(1)(a)(ii) execution process as a measure of last resort.”
 The matter proceeded to hearing on 29 August 2017. During the course of the hearing it emerged that the applicant, even though he disputed the quantification of the additional maintenance amounts, was in substantial arrears with his basic maintenance obligations. In particular, he did not pay maintenance for the period since the respondent returned to South Africa from the United States in early 2014, right up to and including August 2017 when the matter was first before this Court – a period of almost four years.
 This concession inevitably led to a discussion as to whether the applicant’s conduct in failing to pay the undisputed maintenance obligation warranted this Court to proceed with the hearing of the matter. There was a live and open question whether it would undermine this Court’s integrity to hear the dispute while the applicant remained in default with his admitted maintenance obligations.
 While it was so that the proceedings in the Constitutional Court on 29 August 2017 were not contempt proceedings, the concession of non-payment of the basic maintenance obligations, which was never in dispute, could not simply pass without consequence. The court noted that the judicial authority vested in all courts, obliges courts to ensure that there is compliance with court orders to safeguard and enhance their integrity, efficiency, and effective functioning. To this extent, the views expressed by our courts on compliance with court orders remain relevant in these proceedings.
 In Matjhabeng, this Court expressed itself on the matter in the following terms:
“Section 165 of the Constitution, indeed, vouchsafes judicial authority. This section must be read with the supremacy clause of the Constitution. It provides that courts are vested with judicial authority, and that no person or organ of state may interfere with the functioning of the courts. The Constitution enjoins organs of state to assist and protect the courts to ensure, among other things, their dignity and effectiveness.
To ensure that courts’ authority is effective, section 165(5) makes orders of court binding on ‘all persons to whom and organs of state to which it applies’. The purpose of a finding of contempt is to protect the fount of justice by preventing unlawful disdain for judicial authority. Discernibly, continual non-compliance with court orders imperils judicial authority.” (Footnotes omitted.)
 Further in Fakie, the Supreme Court of Appeal, per Cameron JA, held:
“It is a crime unlawfully and intentionally to disobey a court order. This type of contempt of court is part of a broader offence, which can take many forms, but the essence of which lies in violating the dignity, repute or authority of the court. The offence has, in general terms, received a constitutional ‘stamp of approval’, since the rule of law – a founding value of the Constitution – ‘requires that the dignity and authority of the courts, as well as their capacity to carry out their functions, should always be maintained’.” (Footnotes omitted.)
 According to the Constitutional Court the applicant did not face the consequences of either a finding of civil or criminal contempt but his conduct, if left unaddressed by the Constitutional Court, would undermine judicial integrity. Analogous considerations to formal contempt proceedings arose. In this regard, counsel for the applicant was certainly amenable to the matter being postponed to enable the applicant to remedy the consequences of his failure to pay. It was a stance which was wisely and correctly taken given the significant and ongoing nature of the failure by the applicant to comply with his maintenance obligation towards his minor child. A court’s role is more than that of a mere umpire of technical rules, it is “an administrator of justice . . . [it] has not only to direct and control the proceedings according to recognised rules of procedure but to see that justice is done”.
 A further factor which fortifies the conclusion that the Constitutional Court was not only entitled but obliged to have raised and dealt with the non-compliance with the Order by the applicant, lied in the nature of the obligations that the Order and the settlement agreement which accompanied it evidenced.
 The court noted that court orders must be complied with diligently, both in form and spirit, to honour the judicial authority of courts. There was a further and heightened obligation where court orders touched interests lying much closer to the heart of the kind of society we seek to establish and may activate greater diligence on the part of all. Those interests, according to the Constitutional Court included the protection of the rights of children and the collective ability of our nation to “free the potential of each person” including its children, which ringed quite powerfully true in this context.
 The judge went further to say that when courts act as the upper guardian of each child they do so not only to comply with the form that the Constitution enjoins us to be loyal to, but with the very spirit that is encapsulated in the provisions of section 28(2) of the Constitution that “a child’s best interests are of paramount importance in every matter concerning the child”.
 This was precisely such a matter. The Order was about ensuring the best means of protecting and enhancing the interests of the minor child, and the scope and the breadth of the provisions of the settlement agreement appear to compellingly underscore that objective. The High Court, when it granted the decree of divorce, must then have been satisfied that the interests of the minor child were well catered for.
 When those interests are imperilled or when the obligation undertaken by either parent to the child is not diligently complied with, then courts are enjoined to interfere in a manner that best protects those interests. In Bannatyne, this Court dealt with the significance of maintenance obligations and the duty of courts to ensure compliance therewith. The Court articulated itself on the matter in the following terms:
“Systemic failures to enforce maintenance orders have a negative impact on the rule of law. The courts are there to ensure that the rights of all are protected. The judiciary must endeavour to secure for vulnerable children and disempowered women their small but life-sustaining legal entitlements. If court orders are habitually evaded and defied with relative impunity, the justice system is discredited and the constitutional promise of human dignity and equality is seriously compromised for those most dependent on the law.
It is a function of the state not only to provide a good legal framework, but to put in place systems that will enable these frameworks to operate effectively. Our maintenance courts and the laws that they implement are important mechanisms to give effect to the rights of children protected by section 28 of the Constitution. Failure to ensure their effective operation amounts to a failure to protect children against those who take advantage of the weaknesses of the system.”
 Reverting to the proceedings of 29 August 2017, this Court, presented with the common cause evidence of the non-compliance with the basic maintenance obligations that the applicant had undertaken to pay, made the following order:
“1. The matter is postponed to Wednesday 8 November 2017 at 10h00.
2. The applicant must pay the respondent’s costs of postponement.
3. The applicant must pay to the respondent’s attorneys, for the benefit of the minor child, an amount of at least R150 000 on or before 30 September 2017.
4. In addition to this payment, the applicant must make monthly payments in respect of the maintenance obligations and other expenses of the minor child in accordance with the order of the High Court.”
 This 29 August 2017 order (August Order) responded to the pressing need both to respect K’s best interests and safeguard against potential damage to this Court’s integrity. This Court’s integrity would be jeopardised if it failed to uphold its solemn constitutional obligation under section 28, to protect the best interests of children.
The proceedings in this Court of 8 November 2017
 When the hearing of the matter resumed on 8 November 2017, a necessary and anterior issue to be determined was whether the applicant had complied with the August Order. It was particularly important that this Court was satisfied that he had, especially given that the matter had previously not proceeded on account of the failure by the applicant to pay his basic maintenance obligations. The paramount question was whether the applicant had remedied his default and allayed this Court’s earlier concerns that continuing to resolve this dispute while the basic maintenance remained unpaid, would undermine judicial integrity by ignoring K’s best interests.
 The question raised was important in the context of determining what sanction, if any, the Constitutional Court would consider in the event of failure by the applicant to establish that he had remedied his conduct.
 In Burchell, the High Court, upon finding that a party was in contempt of an order of court, ordered as part of the relief it granted that, unless the offending party purged his contempt, he faced the risk of being precluded from continuing with any litigation in the High Court. Such a sanction, which may at first sight appear to run counter to the right of access to courts enshrined in section 34 of the Constitution, is in my view wholly appropriate in circumstances when one is dealing with conduct that may be described as contemptuous of the authority of the order issued by a court. It can only be described as unconscionable when a party seeks to invoke the authority and protection of this Court to assert and protect a right it has, but in the same breath is contemptuous of that very same authority in the manner in which it fails and refuses to honour and comply with the obligations issued in terms of a court order. The High Court, in Di Bona, supports the view that a court may refuse to hear a party until they have purged themselves of the contempt by coming to the following conclusion:
“The consequences of the rule are that anyone who disobeys an order of [c]ourt is in contempt of [c]ourt and may be punished by arrest of his person and by committal to prison and, secondly, that no application to the [c]ourt by a person in contempt will be entertained until he or she has purged the contempt.”
 In his response to the question whether he had complied with the August Order, the applicant offered, through his counsel, an explanation from the Bar of the steps he had taken in furtherance of the order. No affidavit was filed by the applicant setting out the manner of compliance with the August Order and in any event the explanation offered from the Bar was the subject of contestation from the side of the respondent. The applicant’s counsel submitted that the applicant paid R150 000, the minimum amount prescribed in the August Order. Counsel conceded that the applicant failed to honour the term that he “must make monthly payments in respect of the maintenance obligations and other expenses of the minor child in accordance with the order of the High Court”. The applicant’s counsel sought to postpone the hearing a second time to allow the applicant to depose to an affidavit explaining the non-compliance. The reason for non-compliance offered, advanced from counsel, was that the R150 000 was more than the calculated amount of basic maintenance owing, and that the respondent had agreed to allow a portion of the R150 000 as a set off for the monthly payments owing since the August Order. Respondent’s counsel disagreed that any agreement had been concluded.
 Notwithstanding the existence or otherwise of any agreement, this was not an adequate and proper reason for non-compliance with the August Order. Given the serious nature of the conduct that was conceded, it is hardly acceptable or appropriate for this Court to engage in speculation or an oral contestation from counsel in respect of such a significant issue. Further, considering the relief that the applicant was seeking, he should have proceeded with greater care in ensuring that he was in compliance with the August Order. As mentioned earlier, this matter does not deal with formal contempt proceedings and the requirement of purging related contempt. However, the principle need to preserve the integrity of justice is present here, and there is an undoubted need to assess whether conduct that could compromise that integrity is remedied.
 The court remarked: "Under the circumstances and for the reasons given, I conclude that on what is before us, there is no evidence that the applicant had remedied his conduct. This conclusion then leads to the question as to whether the interests of justice are served by allowing the applicant to ventilate his argument in respect of the merits of the appeal".
 Those interests according to the court would not be best served and would be undermined if the applicant was allowed to proceed and deal with the merits of the appeal in the absence of him remedying his conduct by complying with the August Order. It would, according to the court dilute the potency of the judicial authority and it will send a chilling message to litigants that orders of court may well be ignored with no consequence. At the same time, it would signal to those who are the beneficiaries of such orders that their interests may be secondary and that the value and certainty that a court order brings counts for little. For all these reasons, and in particular that the subject matter of this litigation involved the best interests of the child, the interests of justice strongly militate against the applicant’s pursuing his application. The court was of the view that proceeding with the hearing of this matter, where adequate compliance with the August Order, which sought to ensure payment of the basic maintenance for K, was in doubt, would create “[c]ontinued uncertainty . . . [which] cannot be in the interests of the child” and did not further the interests of justice.
 According to the Constitutional court, the Court enjoys wide jurisdiction to hear matters involving a constitutional issue or where an issue is connected with a decision on a constitutional matter. Notwithstanding the significance or otherwise nature of the constitutional issue raised, an overriding consideration must always remain whether the interests of justice dictate that a matter be heard. Those interests the court found were not confined to those of the applicant but extended and included all the parties before the Court as well as those of the public at large. Those interests, properly contextualised and considered, also stood against leave to appeal being granted. This Court granting leave to appeal in this matter would clearly have run counter to the interests of justice, given the cumulative effect of the applicant’s failure to respect K’s best interests by paying the basic maintenance and his continued failure to respect this Court’s integrity by flouting the August Order.
 While it was submitted on behalf of the applicant that the Court should not make any order as to costs in the event of the application being dismissed, the principle in Biowatch should not apply. This was precisely the kind of case that should invoke the exception to Biowatch for litigation that were “frivolous or vexatious, or in any other way manifestly inappropriate”. In light of the totality of circumstances at the two hearings before the Court, and the applicant’s wanton conduct, the court's view was that the litigation was “manifestly inappropriate”. Given the applicant’s conduct compromising K’s best interests and the Court’s integrity, his continued application was viewed as “so unreasonable or out of line that it constitutes an abuse of process”.
 What remained to be determined was the scale of such costs. Counsel for the respondent urged the Court to impose a punitive cost order as a measure and indication of its displeasure at the manner in which the applicant has conducted this litigation.
 In Nel, the High Court held the following in relation to punitive cost orders:
“A costs order on an attorney and client scale is an extraordinary one which should not be easily resorted to, and only when by reason of special considerations, arising either from the circumstances which gave rise to the action or from the conduct of a party, should a court in a particular case deem it just, to ensure that the other party is not out of pocket in respect of the expense caused to it by the litigation.
As such, the order should not be granted lightly, as courts look upon such orders with disfavour and are loath to penalise a person who has exercised a right to obtain a judicial decision on any complaint such party may have.” (References omitted.)
 The Labour Appeal Court, in PCASA, emphasised the view that punitive cost orders are “extraordinary” in nature and they will not be easily granted:
“The scale of attorney and client is an extraordinary one which should be reserved for cases where it can be found that a litigant conducted itself in a clear and indubitably vexatious and reprehensible conduct. Such an award is exceptional and is intended to be very punitive and indicative of extreme opprobrium.”
 The court was of the view that it was the kind of matter where a punitive order of costs was justified. Neglecting to respect K’s best interests and the failure to honour the August Order, that sought to ensure those interests are protected and preserve this Court’s core integrity, was precisely the kind of “extraordinary” conduct worthy of a court’s rebuke with punitive sanctions. Adding to those transgressions, the manner in which the applicant failed to apprised the Court of any efforts to remedy his conduct and sought to improperly admit oral evidence on these efforts from counsel, disregarding the appeal process and transforming the hearing into a factual inquiry – absent appropriate leave – was a further basis warranting punitive costs in this matter. The applicant was accordingly ordered to pay the costs of the respondent on an attorney and client scale.
A concluding observation by the Court
 "This case involves, in the narrowest sense, a dispute about the payment of a maintenance obligation. There is little doubt that the payment of maintenance is an important factor in the ability of a custodian parent to provide for the needs and interests of a minor child. Those needs and interests are, however, best served when a child is able to enjoy the recognition of its parents and the love and care that is almost symptomatic of being a parent. When that is missing, one can only speculate about the manner in which it redounds on the wellbeing of a young child. It was, accordingly, with some dismay that this Court noted a request in October 2017 by the applicant to have the child undergo a paternity test. This coming some seven years after the divorce was finalised and following two paternity tests conducted by independent pathologists, which showed with 99.999994% certainty that the applicant is K’s father, raises in the sharpest and most concerning of terms the attitude of the applicant towards the minor child rooted, as it appears to be, in a belief that the child is not his.
 Impressive as its powers are, no court can direct a parent to love and recognise a child, critical as that may be to the full development of a child. What we can do and are enjoined to do, is to point out that every child is deserving of the love and care that is necessary for their development and that the duty to provide that rests primarily on the parents of the child. We can only hope that in the young life of the minor child whose interest is the subject of this litigation, that that transpires in the fullness of time".
 The following order was made:
1. The application for leave to appeal was dismissed.
2. The applicant had to pay the respondent’s costs in the Constitutional Court on an attorney and client scale, excluding costs relating to the 29 August 2017 postponement.
AC v ADT
 JOL 33077 (GJ)
Parent and child – Access to child
The battle between the parties over the applicant’s access to his child had a 12-year-long history. The father had relentlessly sought assistance from the Court to gain access to his minor daughter and the mother had frustrated the father’s every effort to gain such access to the child. The mother referred to the violent nature of the father in justification of her refusal to have the father gain access to the child. However, the father was comprehensively assessed by a clinical psychologist, whose professional opinion was that no reason existed to deprive him of access to his daughter. On the other hand, the mother had consistently refused the father’s requests to attend consultations with psychologists.
As the best interests of the child is paramount, it is mandatory that due regard and due consideration be given to any views and wishes expressed by the child. The child in this matter was now 16 years old. The Court found that fear and anxiety expressed by the child has been created by the mother. The Court sits as upper guardian in the protection of the best interests of the minor child. It was in the best interests of the child to at least attempt establishing meaningful contact with the father, without the rights of the father being deliberately frustrated by the mother. An order facilitating that objective was issued.
CRI (born B) v MRI
 JOL 29946 (ECG)
Divorce – Access to children
The parties in this matter were embroiled in divorce proceedings. In a rule 43 application brought by the applicant (mother), the applicant was appointed as primary carer of the children, and awarded her pendente lite custody of the children, subject to the condition that the respondent be allowed contact with them. The parties were not able to agree on how the respondent’s (father's) right to contact would be exercised, and he now sought an order defining that right.
In terms of section 10 of the Children’s Act 38 of 2005, the Court had to give due consideration to the views expressed by the minor children if they were of an age, maturity, and stage of development to be able to meaningfully participate in the proceedings. Their views however, had to be considered in the context of the fact that they had been in the applicant’s sole custody for more than two years, and that during that period they had not had any contact with their father.
The Court found that the respondent should be allowed to see his children and granted supervised contact, as defined in the order.
RM v BM 2017 (2) SA 538 (ECG)
In this case for divorce, the plaintiff wife put in issue the validity of the antenuptial contract. Its clauses one and two excluded community of property, and of profit and loss; clause three made the marriage subject to accrual; clause four listed inter alia the assets comprising the husband's estate for calculating accrual; and clause five appeared to exclude those assets from his estate.
The court ruled that clauses four and five were irreconcilably contradictory, and rendered D the antenuptial contract void for vagueness. Ordered, that the contract was void, and the parties were married in community of property.
Haywood v Haywood and another -  JOL 31970 (WCC)
The applicant (father) and first respondent (mother) were engaged in divorce litigation. They entered into a settlement agreement, which was presented to Court for an order in terms thereof to be taken by agreement. In terms of the agreement the father undertook to maintain the parties’ minor son by the payment of cash in the amount of R7 000 per month to the mother, by covering his reasonable medical expenses and by paying his school fees. The father continued to pay the maintenance in respect of his son up to the beginning of 2014. He then discovered that the mother decided to enrol the boy into a college to able him to improve his Matric grades. The father was not happy at not having been consulted, and obtained advice from his attorney.
He was advised that since the boy was then 18, that he was no longer required to pay maintenance directly to the mother.
Flowing from the father’s stance, the mother obtained a writ of execution for the attachment of movables belonging to the father, for an amount representing one month’s maintenance, and the college fees.
In an urgent application, the father sought a declaration that the order made pursuant to the settlement agreement had lapsed due to their son having attained majority.
The court found that ordinarily, the position is that upon the attainment of majority of the child, the parent in whose care the child is, no longer has the locus standi to claim payment of maintenance on behalf of the child. The principles which have been applied in respect of agreements to pay maintenance incorporated into orders of divorce can usefully be applied to agreements in relation to Rule 43 applications as well. The Court had to determine the parties’ intention when they concluded the agreement. The golden rule is to have regard to the language of the written instrument in question, and to give it its grammatical and ordinary meaning. The Court was satisfied that the parties contemplated continued payments by the father directly to the mother after their son’s majority.
The respondent married Mr “A” on 19 July 1997, and a child was born of the marriage on 2 June 2009. On 26 November 2013, the respondent and the child left Australia with the consent of Mr “A” to visit the respondent’s ailing father in South Africa. The respondent was due to go back to Australia with the child on 7 January 2014. Nevertheless, on being informed by her husband that he no longer desired to be married to her, the respondent made the decision to stay in South Africa with her child. Mr “A” then authorised the Central Authority of Australia to request the applicant (the Central Authority for the Republic of South Africa) to initiate the present proceedings. The applicant applied for an order against the respondent, for the return of her child to Australia. The order sought is in terms of Article 12 of the Hague Convention on the Civil Aspects of International Child Abduction, 1980.
The respondent raised both defenses permitted in article 13. In terms of 13(a) of the Convention she contended that her husband had consented or acquiesced expressly, alternatively tacitly to her removing and keeping the child in South Africa. In terms of 13(b), she stated that it would be a grave risk to expose the child to physical and psychological harm or place her in an excruciating situation if the order were to be granted for her return to Australia.
Held that the aim of the Convention is to protect children internationally from the damaging effects of their unlawful removal or retention and to guarantee their quick return to the state of their habitual residence out of deference for the integrity of the laws of that state. It is also premised on the concept that the best interest of the child is to be returned to their habitual residence. It is then up to the authority in the state of habitual residence to decide access and custody. Article 12 provides for the application to be brought not more than a year after the child has been removed from its habitual residence. If it is brought more than a year later the judicial authority may not order the return of the child if it is shown that the child is settled in its new environment. The rationale underpinning this provision is that it would be disruptive to return a child who has settled in its residence.
In this case, the child had now lived in South Africa for more than a year. Consequently she had settled well at school and in the home she shared with the respondent and her parents. A social worker engaged to report on her circumstances and the curator who represented her in the proceedings confirmed that she was well adjusted to her life in South Africa. Although that was dispositive of the matter, the Court also considered the respondent’s defences, and found them to have merit.
The application was dismissed.
Liability of divorced or separated parents for fees at fee-paying public school
The South African Schools Act 84 of 1996 (the Act) provides that a parent is liable to pay school fees at fee-paying public schools unless or to the extent that he or she has been exempted from payment.
One of the requirements for exemption from payment of fees is that the applicant must provide the ‘combined annual gross income of parents’.
In MS v Head of Department, Western Cape Education Department and Others 2017 (4) SA 465 (WCC);  4 All SA 578 (WCC) the applicant MS, a divorced mother of the learner at a fee-paying public school, was refused exemption by the school governing body (SGB) of the local school as her application was incomplete in that it did not include the financial position of her former husband that she had since divorced. He was very uncooperative and did not provide his financial position. The first respondent, the Head of the Department of Education in the Western Cape, rejected the applicant’s appeal against the decision of the SGB.
Contending that her liability to pay school fees was joint rather than joint and several, the applicant approached the court for an order reviewing and setting aside the first respondent’s decision regarding her appeal. In other words, her stance was that her application for exemption from payment of fees should be determined on the basis of her financial position alone concerning her share of liability for fees. That meant that for the balance the SGB would have to deal with her divorced husband separately.
Le Grange J granted with costs an order reviewing and setting aside the decision of the first respondent. The matter was remitted to the first respondent for determination of the exemption as the court itself was not a better place to do so. Moreover, doing so would encroach on the doctrine of separation of power between the judiciary and the executive.
It was held that on a proper construction of the provisions of s 40(1) of the Act, liability of a parent to pay school fees had to be regarded as joint and not joint and several. That was reference to the liability of the parent to the school in terms of s 40(1), not the liability for school fees between parents, which could be affected by private arrangement, as was the case in the present matter. Given that back in 2010 both parents undertook to remain involved in all aspects of the learner’s life, including her schooling and general welfare, the suggestion by the applicant that she was offended by the respondents to regard the divorced husband as part of her family and to insist that she requested financial information from him in order to complete the application forms for the school fees was unjustified. In fact, she accepted and agreed that she was under a legal obligation to forward correspondence relating to the learner to the divorced husband. Moreover, both parents accepted to remain co-holders of parental responsibilities and rights in terms of the Children’s Act 38 of 2005. Therefore, the relief sought by the applicant for a declaration to the effect that by requesting her to also submit financial information of her divorced husband, the SGB infringed her right to human dignity by degrading and humiliating her, as alleged, was unsustainable and legally untenable.
In the sequel to the highest liability lawsuit against Orange County in the US, a federal appellate court has confirmed recently that the county was not immune from liability for a 2000 incident in which a woman alleged that two social workers committed perjury to separate her from her mom when she was a young girl. The ruling issued by a three-judge panel of the 9th U.S. Circuit Court of Appeals was based on events that caused a jury to award the mother $9.6 million from Orange County in 2011 after she alleged that social workers used fabricated evidence to cause a court to remove her two daughters from her custody for six and a half years. In this case, the Judge with reference to the conduct two state social workers stated, “No official with an IQ greater than room temperature in Alaska could claim that he or she did not know that the conduct at the center of this case violated both state and federal law,” – Judge Stephen.
In cases in which parental alienation was not caused by a parent but by a malfunctioning state authority courts elsewhere in the world have come to the aid of affected parents. In some of these cases the local authorities had failed to take effective measures to enforce the parent’s right to maintain contact with the child. In one case a Moldavian citizen and mother of two minor children had got divorced in 2006. Despite of her right to maintain contact with her daughter it took eight months to produce the first encounter between mother and daughter. This long period of mother absence had produced parental alienation in the girl against her mother with the consequence that it was difficult to re-establish contact. The conflicting situation led to a delay of another four years without measures to establish regular mother to daughter contact. Consequently, the mother sued the Moldavian authorities for violating her rights through omission and claimed that her rights were violated according to the Convention on the Rights of the Child that ensures the right to respect for private and family life. The European Court of Human Rights allowed the claim.
In a similar case a Bulgarian mother was not able to see her son for two years due to the father’s frustrating contact. She filed a lawsuit because of the lack of remedy by which to bring up her complaint under Bulgarian law and the delay of custody proceedings. She accused the local authorities of having failed to enforce her right to contact to her child referring to Convention on the Rights of the Child. She succeeded with a claim for damages.
In a case in Italy a failure of the social services to ensure that court decisions were complied with, prevented an Italian citizen from seeing his son for a period of seven years. This had produced parental alienation in the child with consequences that were difficult to make good. The applicant accused social services of omission in the administration of court decisions referring to the same legislation as mentioned in the other two cases above and was finally granted damages. The cases reveal, that incorrect or deficient enactment of legal provisions or lacunae in procedural law may cause parental alienation in children whose parents undergo a divorce.
According to Anthony Douglas, chief executive of the Children and Family Court Advisory and Support Service in the UK (Cafcass) divorced parents who brainwash their children against ex-partners are guilty of abuse. According to him the deliberate manipulation of a child by one parent against the other has become so common in family breakdowns these days that it should be dealt with like any other form of neglect or child abuse.
According to Cafcass, parental alienation in the UK is responsible for approximately 80% of the most difficult cases that come before the family courts. In South Africa, these kinds of cases are the most difficult cases for family lawyers to deal with.
Parental alienation targets the child, drawing them away from one parent through a series of emotionally manipulative behaviours that often sabotage the bond between parent and child. It puts one parent in the role of being a gatekeeper with a clear objective against the targeted parent to erase that mother or father from being a loveable parent.
Forms of parental alienation includes a parent constantly badmouthing or patronizing the other adult, limiting contact between the child and the targeted parent, forbidding discussion about the other parent, generating the impression the parent does not love the child and forcing the child to reject the parent ultimately. Alienation is a form of neglect or child abuse in terms of the impact it can have on the child.
In certain countries, governments have put in place legislation to prevent parental alienation. In Italy parents can be fined, whereas in Mexico, guilty adults can be given a 15-year jail term. In America “parenting coordinators” are ordered and supervised by the courts to help restore relationships between parents and children identified as “alienated”.
In South Africa, there is no specific criminal law that outlaws’ parental alienation apart from Section 35 in the Children’s Act. This section states that any person having care or custody of a child who, contrary to an order of any court or to a parental responsibilities and rights agreement that has taken effect refuses another person who has access to that child or who holds parental responsibilities and rights in respect of that child in terms of that order or agreement to exercise such access or such responsibilities and rights or who prevents that person from exercising such access or such responsibilities and rights is guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding one year. The problem is that this section is rarely put in to motion or applied in practice.
A child’s best interests are plainly furthered by nurturing the child’s relationship with both parents, and a sustained course of conduct by one parent designed to interfere in the child’s relationship with the other casts serious doubt upon the fitness of the offending party to be the custodial parent.
Our courts have come to the aid of targeted parents in the past by recognising parental alienation but these cases are few and far in-between, which is leading to some children being removed from the offending parent. But our family law system is fraught with difficulty and a very difficult process. The phenomenon is so broadly overlooked in the family law system that no official figures exist for the numbers of children it may affect. Inside the South African adversarial legal system, you often find an industry landscape plagued with lawyers, health care professionals and third party benefactors that sometimes confuse their own self-interests with that of the child’s best interests thereby muddling any chance for parents to have these cases properly adjudicated in a timely, cost effective and efficient manner. This often lead to unfortunate outcomes.
In far too many situations children get caught in the slow machinery of the family court system and are removed from one parent’s care, often at the hands of the other parent, by means of alienation abduction and sometimes both. It is recognised that children who are in the center of such extreme conflicts of loyalty between their parents may suffer short-term damage in anxiety and depression and longer term difficulties in education, mental illness and their own adult relationships.
In cases where the court ultimately sides with a targeted parent, they still often face a bureaucratic and time-consuming mountain to have the parental rights that were taken from them enforced after what usually amounts to having been a long and grueling campaign that takes a toll on the parent financially, emotionally and physically.
If one studies the experiences of many parents who have faced such circumstances the picture emerges of a system that is severely dysfunctional and in many cases ostensibly incompetent. Add high legal costs, time delays within our adversarial family law system, ruthless lawyers, incompetent or biased health care professionals and you have a recipe for disaster. It is therefore time that practices are imposed to effectively deal with these kinds of disputes.
The courts are often confronted with a dreadful problem where young children voice a determined preference not to see a parent. How can anybody be sure that the child is expressing true feelings that have been freely developed rather than a point of view which has been inculcated by a manipulative parent? Early intervention is essential. Where contact with children is being frustrated and the children themselves are rejecting a parent with whom they previously had a loving relationship, specialists in mediation and child psychology should get involved without delay. We need a form of therapeutic justice since the concern is that the adversarial nature of court proceedings and legal issues causes unnecessary emotional/mental damages caused by the present court systems rules, procedures, attorneys and judges.
Unfortunately, our courts do not understand parental alienation well enough to apply proper protocols to help prevent, intervene and stop the conduct. They inadvertently order counselling for the targeted parent and child to help them unite, but forget that unless the alienator is in counseling, the child will continue to be barraged with the anger and hate of the alienator. In fact, forcing a child into counseling gives the alienator even more control. Alienators use this as another tool to persuade the child that it is the other parent’s fault that he/she is in counseling convincing the child that it is not the courts forcing them but the other parent. With this trauma, the child, instead, go into the counseling process with hatred and anger often rejecting to do the work to heal their love, confusion and own low self-esteem brought about by the alienators psychological abuse.
Parental alienation has complex dynamics and as alienated parents know a child’s refusal to follow a court-ordered parenting visitation schedule can be a formidable obstacle to contact. The remedy for this problem has several layers to make courts accountable to ensure that everyone’s mental health is being addressed and cared for.
If the theory Therapeutic Jurisprudence were employed in parental alienation cases, so that counseling was mandatory for the parents, we would be able to better heal and help the parties to move forward in a positive healthy way. If the parents work through their issues of grief, anger, pain and depression, the children would be less affected by it and therefore not need counseling. Courts must include counseling for both of the parents in cases of high conflict aggressive divorce. Counseling orders must also include that the counsellor or therapist report back to the court on the progress of the parents. If a parent is not doing the work, which would be evident in the children’s behaviour or denial of access to the other parent, then certain penalties must be put in place to ensure cooperation.
As more awareness, active engagement, and attention focus on matters of exposing parental alienation, gate-keeping, and overall dysfunction in these ordeals, the better it may be the only way to bring about the sweeping changes needed in a system that is beyond shattered.
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
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
Facsimile: +27 086 572 8373
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
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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
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.