A K v J K (19890/2018)  ZAWCHC 143 (3 November 2020)
Court: Western Cape Division, Cape Town
Case No: 19890/2018
Dates heard: 13 June, 2 August, 12 December 2019, 12 March & 24 July 2020
Delivered: 3 November 2020
Judge: Gamble, J
Doctor who told his ex-wife he was no longer willing to fund you lying on your couch every day faces two years behind bars if he doesn’t pay her R1.5m of spousal maintenance within a month.
Contempt of court – where the wife was awarded lifelong maintenance, the husband unilaterally opted to decrease paying same – The court found that he had acted willfully and with mala fides
In this case, the parties were divorced by way of a deed of settlement on 19 September 2013. The order incorporated spousal maintenance of R52 000 per month up until the wife (applicant) dies, remarries, or cohabits with another man for more than six months. The settlement agreement incorporated an escalation clause, and by the time the matter went to court, the monthly maintenance was R69 384,48. The husband (respondent) unilaterally made the decision to start decreasing the amount of maintenance. By May 2020, he was paying R10 000 per month and was owing R1 539 158,96. As a result, the wife lodged an application for contempt of court. The court found that the wife was still alive, had not remarried, nor was she cohabiting with anyone else.
The respondent was a specialist ophthalmologist. He managed a practice called Dr. J.A.K and operated various other private companies. On 12 March 2020, counsel for the respondent provided an expert report prepared in 2011 during the divorce. Experts from both sides concurred that the respondent's assets, and his ability to pay maintenance, were to be determined in line with the entities that he controlled.
It was difficult to ascertain the respondent's financial position due to the fact that he did not furnish all the necessary documents, and the experts from both sides did not have a meeting. The virtual hearing of 24 July 2020. Counsel for the respondent contended that aside from the fact that the respondent's gross annual income was R13 to R14 million, he had fallen into hard times, and the applicant had to carry some of the consequences. But counsel for the appellant quickly reminded the court that the respondent had still not given full disclosure about his finances.
The court noted that it was common cause that there was a court order, which the respondent knew about but still failed to comply. Consequently, the only matter was whether the breach was willful and mala fide. (See Fakie No v CCll Systems (Pty) Ltd 2006 (4) SA 326 (SCA) and Bannatyne v Bannatyne 2003 (2) SA 363 (CC) regarding the requirements for contempt of court).
In Maujean t/a Audio Video Agencies v Standard bank Ltd 1994 (3) SA 801 (C) at 803H – l, the court described willfulness in the context of default judgment as follows "…deliberateness in the sense of knowledge of the action and the consequences.." The court found that such an approach was warranted in considering the willfulness element as it accords with the court's reasoning in Fakie.
It was argued that the respondent only realised in February 2018 that his finances were weakening so
much that he could not afford to pay maintenance. The court contradicted the argument because the respondent had always threatened to stop paying maintenance way before that point. Besides, there was uncontested expert evidence which revealed that he was still able to afford the payments. The court also pointed out that even though the respondent's accountant expressed some reservations about the deed of settlement, the respondent did sign it and continued to pay the money every month for four years without defaulting. The court found that the respondent's true motivation for stopping to pay maintenance was documented in a WhatsApp text to his ex-wife. He told her that he no longer felt like working to support her and that he was contemplating retiring in 2021. He also informed her that she must move on with her life as he did not intend to maintain her forever.
The court also held that it was obvious in the respondent's answering affidavit that he knew that he could not unilaterally decide to disobey a court order. Yet, he proceeded to do so. It was further held that not only did he behave willfully, but he was also shown to be mala fide. For example, he undertook to provide the court with full details of his financial position and never did.
In summary, it was held that he had failed to adduce evidence, which demonstrates a reasonable doubt that he acted without willfulness and mala fides. Consequently, it was held that the respondent should pay the outstanding R1 539 158,96 to the applicant within one month and to continue paying the monthly maintenance. He was sentenced to 60 days imprisonment, which was suspended for two years on the condition that he complies with the court order.
Unmarried Fathers Birth Certificate
A full Bench of the Grahamstown High Court recently ruled that section 10 of the Births and Deaths Registration Act 51 of 1992 was unconstitutional given that it did not make provision for unmarried fathers - caring for their children as single parents - to register the children’s births under their surnames without having the mother being present.
This followed an appeal lodged by the Centre for Child Law, represented by Lawyers for Human Rights.
The case, which was initially heard in 2018 by a single judge of the high court, sought a declaration of constitutional invalidity of section 10 of the Births and Deaths Registration Act, alongside a declaration of constitutional invalidity of regulation 12 of the Regulations to the Act.
“Children without birth certificates are invisible. The lack of recognition in the civil birth registration system exposes them to the risk of being excluded from the education system and from assessing social assistance and healthcare. There are effectively denied support and assistance considered necessary for the positive growth and development”.
These were the words of a full bench of the Grahamstown High Court which passed down judgement on 19 May 2020, where he decided that section 10 of the births and deaths registration act is unconstitutional simply because it does not make provision for unmarried fathers caring for the children as single parents to register the children’s births, under their surnames, without their mother being present.
Section 10, inextricably connected to regulation 12, was not declared unconstitutional. Section 10 regulates the provision of a surname to a child born to unmarried parents. The section provides for the child receiving:
This section does not make provision for a child to obtain their father’s surname or details of their father on the birth certificate without the mother’s involvement. There are a number of reasons why a mother may not be involved in the birth registration process. The mother may be deceased or is undocumented herself or cannot be located.
Without a declaration of constitutional invalidity of section 10, unmarried fathers remained unable to register the birth of their child without the mother being present. The judgement handed down by the full bench on 19 May 2020 clears this challenge.
The full bench found that an unmarried father’s inability to register the birth of a child in his own name, without the presence of the mother, denied children with a legitimate claim to nationality from birth, a birth certificate. It discriminates against children cared for by unmarried fathers and does not protect their best interests. The High Court acknowledged that:
Lack of birth registration exacerbates marginalization and potentially underscores inability to participate in development strategies aimed at socio-economic advancement for the achievement of productive and fulfilling lives. There is undoubtedly a disproportionate severity of such consequences for children from indigent families.
The Evolution of Divorce and Family Lawyers
Contemporary family law practice requires that the family lawyer’s philosophical map be redrawn so that she sees herself first and foremost as a conflict manager and problem solver. - Action Committee on Access to Justice in Civil and Family Matters (The “Cromwell Report”)
Most critics of our present adversarial family law system focus on the overly aggressive family law attorney who uses sharp tactics and hostile methods of representation, thereby exacerbating an already complex situation. They recommend that we should somehow find a way to reign in these rogue family law gladiators.
In a recent case in Australia a woman received up to five letters a day – including on weekends – from her ex-husband’s lawyer. The letters were often times angry, allegedly threatening and, according to a presiding judge, inflammatory and accusatory. Regardless, the woman had to pay for her lawyers to read and respond to every letter. By the time the property and custody aspects of the bitter court dispute were settled, she and her ex-husband had amassed more than $860,000 in legal fees. As well as the repeated letter-writing, the case also involved several court applications – all of which cost to launch and respond to. It amounted to a kind of financial abuse, and one that was able to occur in the current court system. After the case the woman remarked: “As the family court system falls apart, all of the unethical, unscrupulous, bottom-feeding lawyers converge to extract money from the carnage”. In his judgment the presiding judge noted the large volume of correspondence between lawyers that were attached to the affidavits, including some within the 500 pages of exhibits to the father’s affidavit. “Some of those letters were inflammatory and reflected the anger of the parties or one or other of them,” he said. “The letters were at times accusatory. They were often verbose and at times involved unnecessary tit-for-tat commentary. Some of the letters served little or no forensic purposes. “Solicitors are not employed to act as ‘postman’ to vent the anger and vitriol of their clients.” The judge went on further to say.
The judge remarked, "Whether this win at all costs, concede little or nothing, chase every rabbit down every hole and hang the consequences approach to family law litigation is a reflection of a Sydney-based culture by some or many litigants or whether it is an approach by some legal practitioners or a combination of both, I do not know. Whichever is the cause, the consequences of obscenely high legal costs are destructive of the emotional, social and financial well being of the parties and their children. It must stop". The judge stated that legal practitioners – who were often representing people for their first interaction with the family court – had a duty to minimise costs and reduce conflict. “The children of these parties depend upon the income and assets of their parents to support them,” he said. “Yet, in this case, the costs of the proceedings have taken a terrible toll on the wealth of the parties and consequently their ability to support and provide for their children.” “A formalist reading of the law says the law is about the best interests of the children. But what are the best interests of the children? That’s culturally determined. And it’s determined by the lawyers and barristers and theater performance on the day.”
I personally know of one matter where a family law attorney advised a client to obtain a protection order against her husband since the husband abused her emotionally and verbally. The client informed the lawyer that the husband said to her that if she obtains a protection order against him that he will commit suicide. The lawyer brushed this off as another attempt of abuse and proceeded with obtaining the protection order. The result, the husband committed suicide.
As life changes, people do too, the same goes for lawyers. Lawyers are well-known for resisting to adapt to change. What lawyers don’t realise is that the law does not exist for the purpose of keeping lawyers employed. We live in an era where the general public have become smarter, information is freely available, and people become negative towards lawyers.
Lawyers are perceived to make money on hours billed, the longer a case stretches, the more fees in the pocket.
The problem is the mindsets of the archaic old school breed of lawyers. The ones who have been molded by an adversarial, combative and confrontational legal system, where the law is seen as a battle of winners and losers. Family law issues themselves are emotional and value laden, adding additional complexity for the role of the lawyer.
Over-identification with clients may be challenging in many areas of law, however the personal nature of family law creates a difficult task for separating the client’s problems from the lawyer’s personal history. Family law comprises of personal and intimate matters and the most vulnerable members of our society – children. The issues can lead clients and lawyers to feel passionately, especially when we have our own histories. Nevertheless, clients will not be well served if lawyers cannot work together on effective and proportionate dispute resolution and solutions to the issues. We must isolate clients’ views from those of lawyers and recognize that, as lawyers, we only fully have one side of the story. What is more, clients will not be well served by personal incivility in contentious matters. After all, if lawyers are not civil to each other on a personal level, how can we expect spouses taking part in a family breakup, the most aggravating time of their lives, to do so?
Family law consists of a unique crossroad of emotional, financial and legal challenges. It entails of rights presented by the law – compensation for sacrifices made for the family unit, entitlement to benefit from the increase in net family wealth, and financial support for the ongoing care of children. It furthermore deals with rights that are people-oriented, rather than act-oriented, such as care and contact. Family law demands the resolution of financial issues, that are usually tied to emotional issues. Emotional information is essential - information that may potentially be at the root of the relationship breakdown, regarding whether a spouse committed adultery, or lied about their sexual orientation. Emotional information is not really legally relevant since the introduction of no-fault divorce, nonetheless it is pertinent to a client making decisions in an interest-based process.
Family law is changing towards non-adversarial dispute resolution processes. As a consequence, some family lawyers are representing clients who are attempting to reach settlements that recognize their interests, instead of just pursuing their legal rights. By reacting to the full spectrum of client needs, lawyers are expected to act in a different way than they do whenever they are representing a client in a traditional civil litigation matter. They give consideration to the emotional and financial consequences of relationship breakdown – issues that are not usually within the purview of the family law lawyer. They objectively reality check with their clients, and they approach interest-based negotiations in a client-centric way. These lawyers view their role as that of a non-adversarial advocate, and their clients as whole people with interests that are not just legal.
Most civil litigation disputes are linear: there is an incident, a claim, and a resolution, then the parties go their separate ways. In family law, the parties may remain interconnected if they have children; which means, they will remain in each other’s lives, at the very least participating in family functions. If there are maintenance responsibilities, they may be financially attached for an indefinite duration. Family law comprises of reviews and variations, meaning the parties may review issues when there is a change in circumstances. In other words, family law issues are not always linear and do not always allow for a clean break. Clients will need to communicate over time.
The vast majority of family law legislation and jurisprudence is centered on the care of children, and the economic consequences of the dissolution of the family unit, legal rights that are designed for an adversarial system.
The way families deal with disputes has significantly changed over the last decade. Scholars have focused on a number of substantive law changes that have contributed to this transformation. These include the changing definitions of marriage, parenthood, and families. However, less focus has been paid to the huge changes that have taken place in the processes surrounding family dispute resolution.
Social science research over the last two decades has made a powerful case that children's well-being following parental breakup is dependent upon their parents' conduct throughout and after the separation process. A great deal of the research indicates that the greater the levels of parental conflict to which children are exposed, the more negative the effects of family dissolution.
As two leading reformers recently stated, "in the last quarter century, the process of resolving legal family disputes has, both literally and metaphorically, moved from confrontation toward collaboration and from the courtroom to the conference room".
The standard adversary system has failed many family law litigants, especially in contested cases concerning children. As family court proponents have accurately observed, existing legal standards make family court proceedings mainly a backward-looking process, fashioned to assign blame and, as a result, add to the acrimony between parents. However, possibly just as problematic, those same indeterminate standards make it difficult for parties to anticipate results in court, and reduce the likelihood of achieving early and less costly agreements concerning childcare and contact related issues. Even if agreements are ultimately reached in most cases, parties spend enormous resources on lawyers, investigators, and other experts to show the other parent unfit.
We should now acknowledge the contaminating and toxic nature of the whole adversarial court-supervised divorce and care and contact process and start to move divorce completely outside of the court’s grasp. This can only happen if there is a mind shift in the minds of Family lawyers.
In Australia the law reform commission launched its review into the Australian family court system by focusing on areas of key concern for families. These include ensuring the family law system prioritises the best interests of children, best addresses family violence and child abuse, and supports families, including those with complex needs, to resolve their family law disputes quickly and safely while minimising the financial burden. Some of the key recommendations were that family violence must be determined early in the proceedings. This ensures the right orders are made to protect children and too often that is not happening.
In an article in the Economist it was reported that all around the world, lawyers generate more hostility than the members of any other profession—with the possible exception of journalism. South African divorce law is founded on the adversarial system where two lawyers represent their clients’ positions before a judge or magistrate, in contested divorce cases, who then try to determine the truth of the case.
Some authors trace the process to the medieval age-old mode of trial by combat, a system that forces the parties into a mind-set of winners and losers. Let’s face it, we live in an adversarial society, one that approves the idea that every time there is a conflict sides must be taken. That means that one side ending up on top, the other side ending up on the bottom, a looser and a winner. The adversarial system is a poor way to solve divorce. This is especially true where children are involved, the adversarial system is sluggish, and many people are refused justice for too long simply because the system tends to lengthen the trial process. “Justice delayed is justice denied”. This system is additionally expensive and requires litigants to have legal representation. The high cost of legal advice and legal representation impede those who cannot afford it. This may suggest that vital evidence which needs to be drawn out by questioning may not be presented in the trial and as such, the truth may not always surface.
The cost of divorce can differ significantly starting almost free to nearly all a couple’s assets. On one end of the spectrum, spouses can draft their own divorce settlement agreement, have a lawyer review it, and spend only the essential court filing and court appearance fees. At the other end, animosity can get the better of otherwise reasonable people, and when they become embroiled in drawn-out and costly litigation, they end up wasting many thousands of rands on attorney's fees and costs.
Someone who is having a contested divorce case is advised to employ experienced attorneys. Some of the principal issues that affect divorce cases entail childcare and contact, maintenance and the division of property.
Separating Your Emotions from Your Divorce Case
The costliest blunder some couples make is utilizing the divorce case as a way to show which partner was “the better spouse” during the course of the marriage. If you're arguing over property division or child contact out of anger at your spouse, instead than thinking about what's fair or best for the children, you will rapidly run up bills from senseless litigation.
How Does Acrimony Increase the Cost of a Divorce?
Animosity and pointless litigation can bring many additional costs to a divorce. Divorce cost is also determined by the wealth of the couple; when wealthier individuals can't agree on maintenance or property division, they tend to employ more expensive lawyers and are also more probably to need financial experts such as forensic accountants, psychologists, and property appraisers. Acrimonious custody disputes and battles over the division of assets can also enhance divorce costs.
Custody battles can quickly become the most expensive part of your divorce. For parents who spend nearly every night at home with his or her children, the possibility of only seeing their children every other weekend can be dreadful. Although many couples agree that one parent ought to be the primary caretaker of the children, other people fight tooth and nail to be the primary parent.
Many costs come from dealing with a care and contact dispute as a contest to optimize your custodial time and limit your spouse’s. To decrease unnecessary costs in a custody battle, parents should rather start from the standpoint that the child is best off having adequate time with each parent, and try to truly find a contact schedule that promotes a positive relationship between each child and each parent rather than employing forensic child experts to recommend at great cost what the contact should be.
Division of Property and Divorce Expenses
Divorcing couples must decide how to divide their asset and debts, an exceedingly sensitive topic for spouses who have probably argued over money before to divorcing. Countless unnecessary costs come from spouses’ unrealistic expectations regarding what their financial life will look like following divorce. With the exclusion of very rich couples, most spouses must expect that moving from one household to two households will fundamentally mean some decrease in their standard of living.
When making use of attorneys, every day that couples fight over money means that there will be less money to divide at the end of the divorce process. If you're anticipating an extremely ill-proportioned division of assets in your favour, you're likely to be dissatisfied, unless of course you have a really compelling legal argument for an unequal split of real estate and personal property. If you are proceeding with unrealistic expectations, you'll likely lengthen your litigation and run up the cost of your divorce, just to find at the end of the day, the division will be something near to 50/50 (if you married in community property).
Trial and Divorce Expenses
Whether your divorce case ultimately settles or goes to trial can make a tremendous difference in your ultimate legal costs. Between the legal preparation necessary and the trial, itself, heading out to trial can definitely double ones litigation costs. One must only go to trial after having attempted to negotiate a settlement agreement in good faith and having attended mediation.
Many divorcing spouses aren’t able to negotiate a complete divorce settlement on their own, and attorneys are usually necessary. Divorce attorneys are indispensable when one spouse is furious, dishonest, revengeful, or even just more financially intelligent than the other.
Exceptional communication skills
Your family law attorney must be an eloquent, confident speaker. A good lawyer should be both articulate and a good listener. This skill is indispensable for arguing your case.
A good researcher
Preparation is essential; a good lawyer performs their research ahead of time to form a good strategy. They must be able to absorb and understand a large amount of information and turn it into something practical for your case. He or she should have exceptional attention to detail and must be thorough, accurate and meticulous to their work.
Experience and knowledge are crucial. Your lawyer should know all aspects of family law. They also need to be knowledgeable about your needs, goals and requirements.
In order to win a case, a family lawyer must be empathetic. Select an attorney that has a sense of belonging to family. A good lawyer needs to not only know what your needs and goals are, they have to actually comprehend where you stand and what your position is.
A good family law lawyer should be sincere with you about the strengths and weaknesses of your family law case. Lawyers need to show quality ethics and a high moral standard.
Cares about you
A good family lawyer cares about his or her clients; good lawyers are concerned about their client’s well-being. They should be supporting and will show genuine care throughout the process.
Understands the dynamics of having children
Many family law attorneys do not understand the dynamics of having children, in fact many of them have no practical experience in raising children. Family law is not all about law, but about a much broader scheme of things. Someone once said that family law is 50% law and 50% about inter-personal relationships and psychology. Make sure that your family lawyer understands these dynamics, since a mere clinical approach is not always conducive in solving practical problems.
For more information, contact:
Family Department - Maurice Phillips Wisenberg
Tel: 021 419 7115
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 Diane 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”.
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.
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 Court sits as upper guardian in the protection of the best interests of the minor child. Read more about two cases that where the voice of the child was taken into consideration by the court.
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.
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.