About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2018
>>
[2018] ZAGPJHC 4
|

|

M v M (15986/2016) [2018] ZAGPJHC 4 (22 January 2018)

SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
CASE
NO.: 15986/2016
In
the matter between:
M.:
K.
PLAINTIFF
and
M.:
C. (BORN
H.)
DEFENDANT
Heard:13 November 2017 – 17
November 2017, 15 December 2017- 22 December 2017, 8 January 2018 –
10 January 2018, 12
January 2018
Delivered: 22 January 2018
JUDGMENT
Coram:
VAN DER SCHYFF AJ
Introduction
[1]
The parties cited in this matter seek a decree of divorce. It is
common cause that they were married to each other in community
of
property on 17 November 2011 at Johannesburg. Two boys who are
currently respectively 6 years and 7months, and 3 years and 5
months
old, were born from this marriage.
[2]
The parties have agreed prior to the onset of the hearing that a
liquidator will be appointed to facilitate the division of
the joint
estate.
[3]
Since the parties agree that the marriage has irretrievably broken
down (a fact attested to by the evidence presented by both
parties)
the remaining issues that need to be adjudicated are the maintenance
of the defendant, and the maintenance of the two
minor children, and
the appropriate post-divorce care and contact regime pertaining to
the two minor children.
[1]
[4]
Both parties agreed that it would be in the best interests of the
minor children if both parties retain full parental rights
and
responsibilities in respect of the minor children as envisaged by
section 18 of the Children’s Act, No. 38 of 2002 (hereafter
the
Children’s Act).
[5] The trial was conducted over a
period of 14 days and concluded on Wednesday 10 January 2018. During
this period evidence was
heard from the plaintiff, two expert
witnesses called by him, Dr. Martin Strous, and Prof. Lorna Jacklin,
the defendant and the
witnesses called by her - Ms. Chantelle
Anderson, the head mistress of the Montessori school attended by the
parties eldest son
T., and two expert witnesses – Dr. Deidri
Kruger and Dr. David Benn; and the Family Councillor, Ms. Naidoo, and
Family Advocate,
Adv. Maikoo. The matter was adjourned until Friday
12 January 2018 for closing arguments. Counsel were requested to
prepare and
submit heads of argument. Both counsels’ heads of
argument provide a good indication of their respective submissions on
how
the evidence lead in the case support their respective cases.
Counsel for the plaintiff also provided me with an extensive bundle

of authorities. I am indebted to both counsel for the analysis of the
evidence.
Background
[6]
The plaintiff instituted divorce proceedings during May 2016 and
sought from the onset an order that the minor children’s

primary place of residence shall be with him. The defendant did not
oppose the granting of a decree of divorce, but in her counterclaim

sought an order that the minor children’s primary place of
residence shall be with her in Germany and that she be granted
leave
to depart from South Africa permanently together with the two minor
children. The implication of the pleadings as they stand
is that both
parties request the court to order that the primary residence of the
children vest with them, within the context that
if the children’s
primary residence is ordered to be with the defendant, it will
effectively sanction the relocation of the
children to Germany.
[7]
It was only during the trial that the plaintiff advanced the
proposition that a shared residency regime would be in the best

interests of the children. Despite this apparent change of heart,
neither the final draft order submitted on behalf of the plaintiff
as
part of the plaintiff’s counsel’s heads of argument, nor
the argument contained in the plaintiff’s counsel’s
heads
of argument, promote a shared residency regime. Since the court is
however obliged to make an order pertaining to care and
contact that
is in the best interests of the children, I am not bound by the
parties’ “preferences” and, if circumstances

dictate the need to implement a shared residence regime in the best
interests of the children, in circumstances that allow therefore,

such an order would follow.
[8]
During the hearing the plaintiff advanced the argument that the
defendant’s proposed relocation is entirely at her election
and
that the defendant is not considering the best interests of the
children in contemplating the relocation, but endeavouring
to
frustrate a possible shared residency arrangement and alienate the
children from the plaintiff. Such a contention is unsupported
if
viewed from the perspective that plaintiff, in his summons, claimed
that the minor children’s primary place of residence
should be
with him, without entertaining, even in the alternative, the
possibility of a shared residence agreement. The plaintiff’s

claim that the minor children’s primary residency must vest
with him was reiterated during opening argument. Although the

plaintiff testified during cross-examination that the relief as
claimed in the summons was directed at obtaining primary residence
of
the minor children due to the fact that the defendant has threatened
to take the children to Germany even before the divorce
was
instituted, it is insightful to note that the allegations made by the
plaintiff in the summons, would, if substantiated, require
any court
to seriously consider granting the sole residence of the minor
children to the plaintiff. The allegations are directed
at the
defendant’s ability and suitability to act as the minor
children’s caregiver. Allegations are,
inter
alia,
made that the defendant is
abusive, aggressive, and emotionally unstable, that she neglected the
interests of the minor children,
and through her behaviour placed the
minor children at risk. The content of the summons issued by the
plaintiff does not support
the contention that was raised during his
testimony that a shared residency regime is what he was seeking or
that such a shared
residency regime would be in the best interests of
the children.
[9]
However, in the light of the contention that the defendant’s
elected relocation is selfish and occasioned in an effort
to not only
frustrate the contact between the plaintiff and the children but also
to alienate the plaintiff and the children, and
specifically in light
of the fact that Dr Strous, the plaintiff’s main expert
witness, said in no unclear terms that if the
defendant cared about
the best interests of the children she would not even consider
relocation, it is imperative, at the outset,
to contextualise the
defendant’s request to be allowed to relocate the children with
her to Germany.
[10]
It is common cause that the defendant is a German citizen who is
currently residing in South Africa in terms of a relative’s

visa (spouse). The defendant has been residing in South Africa since
2009.
[2]
The conditions of the current relative’s visa are that the
defendant must reside with SA citizen […] (the plaintiff),
and
she may not conduct work. This visa expires on 3 February 2018.
[11] I am of the view that the
defendant’s status as a foreigner, whose permission to remain
in the country is soon expiring,
creates a unique context within
which the question of the children’s primary residence must be
determined. When the defendant’s
visa that permits her to stay
in the country expires, she is obliged to leave the country. Although
it has been canvassed by the
plaintiff that there was (and is) an
option open to the defendant to obtain ministerial consent to remain
in the country after
the expiry of the relative’s visa and the
divorce, no proper case was made out in this regard:
[11.1] The
defendant was asked in cross-examination whether she endeavoured to
obtain legal advice to prolong or secure her stay
in South Africa.
She testified that she did not because she was advised by two
separate professionals that there was no good prospect
of success
because she does not have any special skills.
[3]
[11.2] During
closing argument plaintiff’s counsel argued that
s 31(2)(b)
of
the
Immigration Act No. 13 of 2002
provides an option that could be
utilised by the defendant. (The applicability of
s 31(2)(b)
was
canvassed to a certain extent during the trial.)
[11.3] Although
plaintiff’s counsel did not address me on
s 27
of the
Immigration Act, neither
referred to
s 27
at any time during the
trial, she also incorporated a copy of
s 27
of the Act in the heads
of argument.
Section 27(g)
provides that the Director-General may,
subject to any prescribed requirements, issue a permanent residence
permit to a foreigner
of good and sound character who –
is
the relative of a citizen or permanent resident within the first step
of kinship
.
[11.4] Counsel for
the defendant did not address the applicability of
s 27
of the
Immigration Act during
oral argument or in his heads of argument.
This failure is negligible in light of the fact that the
applicability of
s 27
was never canvassed during the trial.
[11.5] During
closing argument, defendant’s counsel addressed plaintiff’s
contention that
s 31(2)(b)
of the
Immigration Act provides
a viable
option that the defendant should have pursued. Counsel for the
defendant argued that the plaintiff had to prove the extent
of
available options by calling an expert witnesses if the plaintiff
wanted the court to consider this argument. He argued that
the
plaintiff’s submission assumes the existence of special
circumstances that are required for the application of
s 31(2)(b)
without having proved any. He also argued that it was premature to
expect the defendant to submit an application to the Minister
in
terms of
s 31(2)(b)
in view of the fact that the plaintiff summarily
requested that the primary residence of the minor children be
afforded to him
when the summons was issued. The need to approach the
Minister in terms of
s 31(2)(b)
, and subsequently the special
circumstances required by the relevant section, would only arise in
the event of the court dismissing
the defendant’s claim to
relocate with the children to Germany. Note should be taken of the
fact that the defendant did state
under cross-examination that if the
court do not authorise the relocation of the children she can pursue
s 31(2)(b)
of the
Immigration Act, although
she does not know whether
it really provides a viable option.
[11.6] Defendant’s
counsel drew the court’s attention to the cumulative effect of
the fact that the defendant was charged
with, and finger printed for
criminal charges laid at the instance of the plaintiff. It was put to
plaintiff during cross-examination
that he was aware of the fact that
if the defendant was found guilty of a criminal charge, it is not a
foregone conclusion that
she will be able to obtain any permission to
stay in or visit the country again. It was also argued that until all
the criminal
charges were withdrawn the defendant would not be able
to obtain any positive police clearance certificate, hence another
obstacle
in obtaining permission to remain in the country. Despite an
undertaking to withdraw the most recent charge given by the plaintiff

when he was under re-examination on 15 November 2017, the plaintiff
only submitted a withdrawal statement on 13 December 2017 and
the
defendant is still required to appear in court on 18 January 2018.
[4]
[11.7]
Section
31(2)(b)
provides an unqualified discretion to the Minister of Home
Affairs to, on application, grant a foreigner the rights of permanent

residence for a specified or unspecified period when special
circumstances exist which would justify such a decision, on terms
and
conditions determined by him. I cannot predict whether the Minister
would have granted such an application if it was submitted.
The
pending criminal charges in itself would, to put it mildly,
complicate any application for permission to stay in the country
at
this point in time. In addition the plaintiff gave evidence that the
defendant did work and earn an income in South-Africa for
a period
before her first son was born. This, now documented, violation of the
condition of her visa might likewise prevent, or
hamper the future
acquisition of permission to visit or stay in the country.
[11.8] There is no
basis in law on which I can forbid the defendant, a foreign national
whose permission to stay in the country
is expiring within weeks,
from leaving South Africa. Neither can I intervene and authorise her
continued stay in the country on
the facts before me. I must
adjudicate the matter based on the current factual reality that she
is obliged to leave the country
on 3 February 2018.
The factual matrix
[12]
Plaintiff’s counsel contended that the historic position of the
care of the children and the attachment of the children
to the
parties prior to the plaintiff’s departure from the former
matrimonial home is irrelevant and unhelpful in this enquiry.
I
cannot agree with such an approach. The defendant’s early
conduct and her view that the plaintiff renewed his bonds with
the
children after obtaining legal advice have to be evaluated within the
context created by the historic events.
[13]
The reality of the parties’ relationship enfold in four
distinct phases. This analysis is based on the facts that I found
to
be common cause between the parties, or established during evidence.
In some instances the parties disagree on the interpretation
to be
placed on the facts that I found to be undisputed. I only refer to
facts that I regard as relevant and central to the decision
that
needs to be made.
[14]
The first phase of the parties’
relationship:
The plaintiff and the
defendant commenced their relationship in 2002 in Germany. The
plaintiff was pursuing a career in professional
football and the
defendant was a graphic design student. In 2003 the plaintiff
returned to South Africa to pursue his football
career with the
soccer team Kaizer Chiefs of which his father was the founder. The
parties sustained a long distance relationship.
The plaintiff visited
Germany for short periods. To sustain the relationship the defendant
visited South Africa for substantially
longer periods on a visitor’s
visa. Although the defendant successfully completed her graphic
design studies in 2003 she
completed only a short internship
thereafter. Due to the fact that the defendant was frequently absent
from Germany for substantial
periods to spent time with the plaintiff
in South Africa, she was not able to secure any permanent employment
in Germany. She was
employed by her father during the periods that
she was in Germany. The parties’ relationship continued on this
basis until
the parties broke up during 2008. They reconciled towards
the end of 2008 and decided that the defendant would move to South
Africa
to live with the plaintiff on a more permanent basis.
[15]
The
second phase of the parties’ relationship:
In 2009 the defendant acquired a relative’s visa on the basis
of her permanent relationship with the plaintiff. It was a
condition
of the visa that she may not work while in South Africa. The
defendant fell pregnant unexpectedly but the pregnancy ended
in a
miscarriage. The parties planned their next pregnancy and the
parties’ son T. was born in June 2011. The plaintiff was

present at, and an involved parent after, T.’s birth. He
assisted the defendant to the extent that his professional football

responsibilities allowed. The defendant exclusively breastfed T..
[5]
She took various courses including baby massage, baby exercise and
baby swimming courses. The defendant suffered postpartum
depression
[6]
and was assisted during this period by both her mother and the
plaintiff’s mother because the plaintiff travelled frequently

due to his professional football responsibilities. The parties
married in November 2011. The plaintiff’s mother was very

involved in the parties’ lives.
[7]
The plaintiff has a very close relationship with his mother. He
testified that she played a large role in his life, ‘
and
in my boys’ lives and our marriage and everything else’.
[8]
The evidence indicates that the plaintiff’s extended family has
very strong familial relations.
[16]
The
third phase of the parties’ relationship:
The
third period in the parties’ relationship commenced more or
less after K., the parties’ youngest son’s conception

during the end of 2013. During this period the plaintiff terminated
his football career and became employed as an administrator
at Kaizer
Chiefs Football Club. He enrolled for a BComm degree during this
period (but abandoned his studies during April 2016).
K. was born in
June 2014, and at that stage the marriage had already begun to
deteriorate. The plaintiff attributed the conflict,
inter
alia
,
to the fact that he had a significant reduction in income and this
frustrated the defendant. The defendant said that the plaintiff

became depressed when his football career ended. According to the
defendant the plaintiff assisted with T.’s care in the
first
weeks after K.’s birth. K. was also exclusively breastfed and
it is the defendant’s case that she is still breastfeeding
him,
a fact admitted by plaintiff in his summons. This is also the time
during which T.’s schoolteacher testifies that she
saw the
plaintiff transporting T. to and from school for a short period. On
Christmas Day in 2015 the parties’ relationship
finally
shattered and in the following months the plaintiff was frequently
absent from the matrimonial home. It is evident from
both parties’
evidence that during the period that the plaintiff remained in the
matrimonial home there was discord and strife
between them. The
plaintiff instituted divorce proceedings during May 2016 and left the
matrimonial home in June 2016. During this
period of strife and
conflict there was no court order regulating the contact between the
plaintiff and the minor children. Although
both parties offer
different reasons, it is apparent that this was an exceptionally
turbulent period. Even during the time before
the plaintiff moved out
of the matrimonial home, his contact with the minor children was
irregular and unstructured. After he moved
out the plaintiff often
arrived without announcement at the matrimonial home to enforce
contact with the children, and sometimes
removed one or both of the
children overnight from the matrimonial home without making prior
arrangements with the defendant. This
is also the period during which
the plaintiff had to be rushed to hospital for an adverse reaction
caused by drinking cough medicine
while consuming alcohol which,
together with other pills she found, gave rise to the defendant’s
fear that the plaintiff
is abusing prohibited substances.
[9]
The defendant’s conduct alternated between requesting the
plaintiff to keep his agreed contact arrangements so as not to

disappoint T., requesting the plaintiff to agree to structured
telephonic contact, and endeavouring to restrict the plaintiff‘s

contact at times when she opined that he was not entitled to it.
[10]
The acrimony during this period was immense and the bulk of the
mutual accusations of abuse originated from this period.
[11]
[17]
The
fourth phase of the parties’ relationship:
The
fourth phase of the parties’ relationship can be described as
the structured phase. As court orders were obtained to structure
the
mid-divorce care and contact regime, the frequency of contact was
regulated. Although the court orders provided more structure
it did
not alleviate all the tension. The handing over of the children
remained stressful and often resulted in conflict situations
and
sometimes a literal tug-of-war over (and with) the minor child, K..
During this phase the parties excessively video-recorded
their
engagements with each other. The evidence indicates that go-pros
(video-recording devices) and cell-phones were readily available
and
frequently used. The defendant testified that the plaintiff
excessively started to video record each interaction between himself

and the children since the inception of the litigation, to the extent
that the minor children would become frustrated with the
recording
device being in their faces. It was her case, and was argued in
closing, that the plaintiff suddenly wanted to create
proof that he
was an involved parent. Examples that the defendant gave was that
when she was feeding the young child plaintiff
would take the spoon
from the hand and feed the child (while recording it), similarly when
she bathed the children the plaintiff
would shove her aside, take the
washing cloth and video tape his actions. The plaintiff did not
address this perspective on his
conduct when the defendant was
cross-examined. His evidence-in-chief was however that he was obliged
to start video recording all
his interactions with the defendant to
protect himself against allegations that he acted aggressively
towards her, when he collected
the children. Several video recordings
were presented as evidence. The videos do not take the matter any
further save to emphasise
the extent of the extreme acrimony between
the parties and the detrimental effect thereof on the children.
[12]
[18]
It is evident that the parties were, and are, not able to sort out
their differences in a civilised manner. Their relationship
is
extremely acrimonious and there is evidence that this relationship is
still deteriorating. The nature and extent of the litigation
reflect
a sorry state of affairs, particularly for the two children involved,
and both the expert witnesses testified that the
children are
extremely negatively affected by the acrimony and strife.
[19]
After hearing and observing the parties, I am left with no doubt that
since the breakdown of the relationship both parties,
to a lesser or
greater extent, at times, behaved in an extremely immature and
inappropriate manner. Both wanted things to happen
“their way”.
[20]
However, both the plaintiff and the defendant love their children and
neither can reconcile themselves with the idea of not
being actively
involved in their children’s lives.
[21]
Both parties are convinced that the other party wants to minimise
their involvement in the children’s lives to the extent
of
cutting them out completely. During the trial allegations of
alienation were made by both the plaintiff and the defendant. Both

parties fear that they will not be allowed to play a continued role
in the children’s lives.
[13]
[22]
I am not convinced that any of the parties can be found to be an
unfit parent. None of the evidence presented in this trial
supports
such a finding. I record this finding because, although counsel for
the plaintiff stated in the heads of argument submitted
on
plaintiff’s behalf that the ‘
court
is respectfully cautioned that the test to be applied in relation to
the relocation of the children is NOT: Is there any reason
to remove
the children from the care of
Cathrin
(the defendant)’, it is evident from the allegations made in
the summons that the defendant’s ability and suitability
as
caregiver were regarded to be contentious aspects. The plaintiff’s
approach necessitated the leading of evidence by Dr.
David Benn, a
psychiatrist, on defendant’s behalf.
[23] The post-divorce contact and care
regime needs to be considered against the backdrop of all the
evidence led in the case. The
perspective provided by the expert
witnesses’ shared opinion, as contained in the joint minute and
supplemented by oral evidence,
is that:
·
Both children view the plaintiff and the
defendant as being an integral part of their lives – they
recognize that both connect
with them, love them, and provide for
them. This emotional bond developed between the parents and children
as a result of a shared
daily life;
·
It could not be determined whether the children
are more attached to the plaintiff than to the defendant;
·
Both parties have the capacity to provide for the
children’s needs;
·
The children need both parents to provide for
their emotional, intellectual and physical needs;
·
The children should not be separated from each
other;
·
Both the plaintiff and the defendant are equally
contributing to the upholding of the dysfunctional dynamics;
·
T. (the eldest child) is emotionally distressed,
and he struggles to adapt to new circumstances;
·
The children will experience tremendous loss and
possibly, unconscious guilt, being separated from either parent.
Burden of proof
[24]
This court sits as the upper guardian of all minors within its
jurisdiction. The discretion that is to be exercised when decisions

pertaining to the best interests of children are to be made is
unique, and not to be circumscribed in the narrow or strict sense
of
the word as it is explained in
Bezuidenhout
v Bezuidenhout
2005 (2) 187 (SCA) para 17. Satchwell J stated in
LW
v DB
2015 JDR 2617 (GJ) para 5 that the discretion to decide whether or
not a child can accompany a parent who leaves the jurisdiction
of the
court, requires no onus in the conventional sense. This approach is
in line with the principle set out by the Supreme Court
of Appeal in
Jackson
v Jackson
2002 (2) SA 303
(SCA) para 5 that where the interests of minor
children are involved, the litigation amounts to a judicial
investigation of what
is in their best interests. The court is not
bound by the contentions of the parties. That slavish adherence to
technical procedural
requirements might result in a court not being
able to decide an issue in the best interests of a child, has been
recognised in
the unreported judgment of Matojane J in
DJB
v MDP
case number 30377/2008 decided in 2010 in the North Gauteng High
Court, Pretoria, para 12. Here, the court held that the most
important consideration in the case is the physical, psychological
and emotional well-being of the minor child under the circumstances,

and that technical procedural objections might shift the focus and
undermine efforts to determine the best interests of the child.
[14]
[25]
This investigation involves an application of law to the facts. This
in turn, requires a holistic, case-specific analyses.
The court must,
in the words of Murphy J in
Cunningham
v Pretorius
,
[15]
acquire ‘
an
overall impression and brings a fair mind to the facts set up by the
parties. The relevant facts, opinions and circumstances
must be
assessed in a balanced fashion and the Court must render a finding of
mixed fact and opinion, in the final analysis a structured
value
judgment, about what it considers will be in the best interests of
the minor child.’
[26]
It is a pity that the parties in this matter were not guided to solve
their disputes in a way other than through adversarial
litigation.
Since the issue of the summons in May 2016, the conflict between the
parties, and the acrimony and animosity have only
been fuelled by the
legal process. Plaintiff’s counsel indicated that there were 9
interlocutory applications since the inception
of the action. That is
not taking into account the criminal charges brought by and against
both parties. The minor children were
subjected to at least 6
different assessments by 6 different professionals. (In fairness it
must be stated that the 6
th
professional was the Family Councillor and it was scheduled on my
request). If it is then considered that evidence has been put
before
the court that the plaintiff’s account for legal fees and
disbursements exceeds R 6 million (and I have no doubt that
the
defendant’s legal account has also reached astronomic
proportions), the question arises as to whom are the beneficiaries
of
this litigation. It is definitely not the children.
[27]
Murphy J stated in
Cunningham v
Pretorius
,
supra,
that when disputes affecting children are adjudicated, motion
proceedings should normally be regarded as the preferred route. He

then stated at p6 of the judgment ‘
Furthermore,
the points of contention that inevitably arise in applications of
this kind tend in the main to concern the inferences
which might
legitimately be drawn from undisputed facts or are merely
disagreements about the construction or interpretation to
be placed
upon undisputed facts.’
After
listening to 9 witnesses over 14 days I fully agree with the learned
judge.
[28]
Both parties were present in court throughout the trial lasting 14
days. A benefit flowing from listening to oral evidence,
was that I
was able to observe the parties. I am not making any adverse
credibility finding pertaining to any of the witnesses,
but I need to
comment on the impression that the defendant, as a witness, left with
me. I deem this necessary in light of the allegations
that the
defendant is emotionally unstable and not considering the best
interests of the minor children. I would not have been
able to form
an opinion about her without having the benefit of observing her as a
witness, and that would have been detrimental
not only herself, but
also the minor children.
[29] I did not perceive the defendant
to be any more anxious as a witness, than I perceived the plaintiff
to be. The defendant was
definitely emotionally invested in the case,
but the only time that her emotions got the better of her was when
she testified about
the effect of the acrimony between the parties on
specifically their eldest son, T.. The defendant’s demeanour,
particularly
under cross-examination, impressed me. She was subjected
to extensive and vigorous cross-examination. What is described by Ms.
De Wet in her heads of argument as a “smug” reaction when
the defendant stated ‘
I actually couldn’t wait to give
an answer to that’
before engaging in answering a question
put to her, was perceived by me as relief, having regard to the
history of the matter to
relate her version on the specific
occurrence in question. Ms. De Wet further argues that the defendant
was evasive and that she
rambled on. I am mindful that if a witness
does not answer a question to the satisfaction of counsel who put
such question this
does not necessarily warrants the inference that
the witness is being evasive. During cross-examination the defendant
was on numerous
occasions confronted with open-ended questions which
invited a detailed explanation. Having regard to her evidence as a
whole I
do not agree with the submission as put forward by
plaintiff’s counsel.
The best interests of the child
[30]
The issues of care and contact and relocation after divorce rarely
fail to provoke conflicting emotions and are never easily
resolved.
Analogous to what was stated by Rumpff JA in
Shawzin
v Laufer
1968 (4) SA 657
(A) 662 G-I, it must be stated that the duty of a
court, sitting as upper-guardian of minor children, when it has to
resolve a
dispute concerning contact, whether in a primary residence
or shared residence paradigm, is dealing with a somewhat singular
subject
in which there is substantially one norm to be applied,
namely the best interests of the child. In 1968 Rumpff JA
substantiated
his view by referring,
inter
alia,
to the fact that an order as to custody and access may be varied at
any time by the court for good cause, and the unique procedural

regulation of disputes of this nature. Today the Constitution
entrenches the child’s best interests as of paramount
importance
in every matter concerning the child.
[16]
This constitutional principle is repeated in section 9 of the
Children’s Act.
[31] Section 28(2)
of the Constitution has been held to create an ‘expansive
guarantee’ and constitute, not only a guiding
principle, but
also a right.
[17]
It also provides the standard against which every decision that
impacts on a child must be measured.
[32]
In section 7 of the Children’s Act, the legislature provides a
list of factors that courts must take into consideration
when
determining what is in the best interests of the child.
[33]
This constitutional and legislative standard needs to be determined
on a case by case basis taking into account the specific
context and
facts of the dispute before the Court.
[18]
[34]
In an effort to provide substance to the concept ‘best
interests of the child’, the question can be asked, why
do we,
as a society, propose to safeguard the best interests of our
children? The preamble of the Children’s Act guides towards
an
answer. The best interests of the child is to be pursued, not only
because children constitute a vulnerable group who are entitled
to
special care and assistance, but because the ‘
protection
of children’s rights leads to a corresponding improvement in
the lives of other sections of the community because
it is neither
desirable nor possible to protect children’s rights in
isolation from their families and communities’
and because children must be afforded the necessary protection and
assistance to enable them to assume their responsibilities within
the
community. Children must thus be protected and assisted to facilitate
the ‘
full and harmonious
development’
of their
personalities and to grow up in a family environment and in an
atmosphere of ‘
happiness, love and
understanding’
. The
constitutional right of a child that his or best interests are of
paramount importance in every matter concerning the child,
will thus
be applied in the context of the specific matter at hand. The
determination of the best interests of a pregnant minor
who is
considering the termination of the pregnancy will be substantially
different from determining the best interests of a child
whose
parents are getting divorced when the issues to be determined revolve
around care and contact and relocation. In divorce
situations and
when determining issues of care and contact, courts need to decide
what would in the long run most likely facilitate
the child’s
development into a well-balanced individual and responsible adult who
will be able to take responsibility for
herself or himself and
contribute positively to the community.
[35]
Sachs J provided invaluable guidance when he explained in
S
v M
:
[19]
A
more difficult problem is to establish an appropriate operational
thrust for the paramountcy principle. The word 'paramount' is

emphatic. Coupled with the far-reaching phrase 'in every matter
concerning the child', and taken literally, it would cover virtually

all laws and all forms of public action, since very few measures
would not have a direct or indirect impact on children, and thereby

concern them. Similarly, a vast range of private actions will have
some consequences for children. This cannot mean that the direct
or
indirect impact of a measure or action on children must in all cases
oust or override all other considerations. If the paramountcy

principle is spread too thin it risks being transformed from an
effective instrument of child protection into an empty rhetorical

phrase of weak application, thereby defeating rather than promoting
the objective of s 28(2). The problem, then, is how to apply
the
paramountcy principle in a meaningful way without unduly obliterating
other valuable and constitutionally protected interests.
[36] In
S v M
, above, the
question revolved around the proper approach that was to be followed
where a convicted person, who was also the primary
caregiver of minor
children, had to be sentenced. The question essentially was whether
section 28(2) would preclude the incarceration
of the primary
caregiver of minor children because such incarceration would impact
negatively on the minor children. The Constitutional
Court held at
paragraph [35]:
Thus,
it is not the sentencing of the primary caregiver in and of itself
that threatens to violate the interests of the children.
It is the
imposition of the sentence without paying appropriate attention to
the need to have special regard for the children's
interests that
threatens to do so.
[37]
When this principle is adapted to apply in divorce proceedings where
family units are fractured and divided due to the mere
nature of the
proceedings, it would thus be incorrect to hold that because it is in
the best interests of a child to maintain the
integrity of family
care that the parents are precluded from obtaining a divorce. Divorce
by its very nature raptures the unified
familial relationship wherein
a child finds himself. This is why the legislative principle is set
that a divorce may only be granted
when a court is satisfied that the
arrangements made or contemplated for the welfare of any minor child
are satisfactory or the
best that can be achieved in the
circumstances.
[20]
It would likewise be incorrect to categorically hold that because it
is generally in the best interests of a child to form a physical
bond
with, and experience the love, affection and care of both parents,
that a parent who intends to relocate with the children
to a
different town, or country, is precluded from relocating. Analogous
to
S
v M
it can be stated that it is the granting or dismissing of a request
to relocate without paying appropriate attention to the need
to have
special regard to all the affected children’s interests in the
circumstances of the case, that threatens to violate
the interests of
each affected child.
[21]
Section 7 of the Children’s
Act
[38]
Since each child’s best interests are of paramount importance
when the issue of prime residence in the context of possible

simultaneous relocation is decided, it is necessary to consider all
the factors set out in section 7 of The Children’s Act.
[39] Section 7 of the Children’s
Act stipulates
- 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 the 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 parents, 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 of 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 care-giver 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 expense 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;
(g)
the child’s—
(i)
age, maturity and stage of development;
(ii) gender;
(iii) background; and
(iv) any other relevant
characteristics of the child;
(h) the child’s physical and
emotional security and his or her intellectual, emotional, social and
cultural development;
(i) any disability that a child may
have;
(j) any chronic illness from which
a child may suffer;
(k) the need for a child to be
brought up within a stable family environment and, where this is not
possible, in an environment
resembling as closely as possible a
caring family environment;
(l) the need to protect the child
from any physical or psychological harm that may be caused by—
(i) subjecting the child to
maltreatment, abuse, neglect, exploitation or degradation or exposing
the child to violence or exploitation
or other harmful behaviour; or
(ii) exposing the child to
maltreatment, abuse, degradation, ill-treatment, violence or harmful
behaviour towards another person;
(m) any family violence involving
the child or a family member of the child; and
(n) which action
or decision would avoid or minimise further legal or administrative
proceedings in relation to the child.
[40] The post-divorce contact and care
regime needs to be determined with the best interests of the children
at heart within the
context that, due to the facts of this case, the
children are going to be deprived of the presence of one of their
parents irrespective
of the order that I make. As stated above, I am
not in a position to assume
prima facie
that the defendant
will be able to obtain permission to remain in the country after the
expiry of her current visa. As is indicated
below, even if it could
be accepted that the defendant would as a fact be able to obtain
permission to remain in the country, I
do not accept that the
defendant’s decision to relocate is unreasonable or
mala
fide.
Although this is not the only factor that I take into
consideration in coming to a decision, the reasonableness and
bona
fides
of the defendant are factors that are taken into
consideration when relocation disputes are adjudicated.
Relocation
[41]
It is undisputable that relocation ‘
involves
the continuing fragmentation of the original family unit with the
associated distress of parents and children separated
from each other
and from familiar environments’
[22]
[42] Boyd
[23]
and Boshier
[24]
correctly stated that ‘
[r]elocation
disputes are the most difficult to adjudicate as they usually involve
two competent and committed parents, one with
sound reasons for
wishing to relocate, the other with equally valid reasons for
resisting the application
’.
However, in this regard the words of King J in
McCall
v McCall
[25]
are very apt:
In view of the unremitting enmity
between the parties, it is as well to remind them that the Court is
determining what is in the
best interests of their child. The Court
is not adjudicating a dispute between antagonists with conflicting
interests in order
to resolve their discordance. The Court’s
concern is for the child.
This
does not however mean that the parents’ interests are to be
completely disregarded. The best interests of the children
might be
paramount, but they are not the sole factors to be considered.
[26]
[43]
When relocation disputes are adjudicated within the child’s
best interests’ paradigm and the standard set in section
7 of
the Children’s Act, guidance is provided by principles
extracted from other decisions. As Satchwell J stated in
LW
v DB, supra
para [17] – ‘
It
is not difficult to extract guidance from earlier decisions. It is
trite that all cases must be decided on their own facts. This
renders
the principles developed eminently flexible and capable of adaptation
to varying circumstances.’
[44] In deciding this case within the
stated constitutional matrix, I rely on the guidance provided by case
law while considering
all the factors set out in section 7 of the
Children’s Act. The fact that a specific factor listed in
section 7 is not specifically
addressed below, does not mean that it
has not been considered. I focus the reason for the order that I make
on the importance
of these factors in light of the facts of this case
as supported by the evidence.
Trauma
[45]
Given the acrimony between the parties, common sense dictates (and is
supported by the expert evidence) that the children have
already been
severely traumatised. There is no guarantee that, even if the parties
remain in close proximity, the acrimony will
subside. On the
probabilities the acrimony between the parties will not subside
irrespective of the order granted by this court.
Fortunately children
are resilient. T. and K. are still young and can benefit from
therapeutic input. A divorce in itself is traumatic.
The court cannot
protect the children from all possible future trauma, however, the
court can minimise the risk by identifying
the least detrimental
alternative. In the circumstances of this case the children will have
to cope with not being with the defendant,
or with not being with the
plaintiff, and I need to determine which would be the least
detrimental and therefore in the best interests
of the children in
the circumstances.
[27]
Defendant’s motive to
relocate
[46]
It has been stated in numerous cases that the motive of the primary
caregiver to relocate is an important factor to be taken
into account
in determining the best interests of the child in proceedings of this
nature. It is similarly important to consider
the motive for
relocation where the issues of primary residence of minor children
and relocation are intertwined. Although a
bona
fide
and reasonable motive in itself is not enough to substantiate
relocation, it is an important factor.
[28]
[46.1] The evidence
does not indicate that the defendant’s desire to relocate, even
if assessed independently from the factual
reality that she is not
currently permitted to remain in the country
post
3 February 2018, is
mala
fide
and unreasonable, or motivated to
spite or frustrate the plaintiff’s right of access to, and
contact with his children.
[46.2] The factual
reality is that the defendant decided to come to South Africa for the
sole purpose of building a life with the
plaintiff. Her life in South
Africa was completely intertwined with his – she was wholly
dependent on him for her financial
wellbeing due to the fact that her
visa prohibits her from working. In South Africa the defendant was
introduced to a life of wealth
and excess. She knew nobody else in
the country and she was received (and according to plaintiff’s
evidence embraced) by
his close-knit extended family. The defendant
was afforded the opportunity to keep in contact with her family in
Germany by being
provided with the opportunity to visit them
frequently.
[46.3] After the
breakdown of the parties’ marriage, the defendant’s
relationship with her in-laws slowly started to
deteriorate to the
extent that both parties’ evidence undeniably show that the
defendant and the plaintiff’s family
are clearly in two hostile
camps. She testified that the acrimony between her and the
plaintiff’s mother is even greater
that the acrimony between
her and the plaintiff, and the plaintiff did not attempt to refute
this.
[46.4] Although the
defendant was enabled to visit her family in Germany on a regular
basis before the marriage broke down, she
was only able to visit them
once since K., the parties’ youngest child’s birth.
Although it is not totally clear how
it came about, evidence was lead
that the parties agreed that the minor children’s passports
should be held by an independent
attorney and that the defendant
would not be allowed to travel to Germany to visit her family with
the children. This, despite
the fact that she visited her family in
Germany with the children after K.’s birth and returned to
South Africa during a
period when the marriage was already unstable.
[46.5] Although the
plaintiff was well aware of the fact that the defendant was
prohibited from working in South-Africa, he did
not attempt to ensure
that she is financially cared for to the same extent that he cared
for her when the marriage was happy, and
even to an extent that
accorded with his own living standard
post
leaving the matrimonial home. The plaintiff provided the court with
evidence that his own financial circumstances changed and that
he
therefore could not keep up the living standard that the parties
enjoyed when the defendant decided to come to South Africa.
Although
this claim is supported by the evidence he tendered, the evidence
also indicated that he, at times, received financial
support from his
mother. The plaintiff also, at least at one occasion, bought an
expensive gift for a girlfriend and then claims
that he does not have
sufficient funds to pay more maintenance. The plaintiff urged the
defendant to move to more affordable accommodation
where rental would
not exceed R12 000 per month while he lived in a luxurious home
provided for by his father. The defendant’s
undisputed evidence
is that the plaintiff cancelled the DSTV account, and that she needed
to ask the plaintiff for money for personal
expenses like paying a
hairdresser, and had to borrow money to repair the washing machine.
[46.6] In the
circumstances as set out above, I do not find the defendant’s
desire to relocate to her country of origin where
she can earn an
income while working for her father, and being supported by her own
family to be unreasonable or
mala fide.
Indeed, it is fully justified.
[46.7] The
plaintiff’s evidence pertaining to his life in Germany is
testimony to the fact that it is not easy to live in
a foreign
environment. He testified that he found it difficult to live in a
country where his mother tongue (English) is not spoken,
although he
could communicate in German. When explaining his decision to return
to South Africa, he refers to factors like ‘
my
roots, my life, my culture, my capability, my qualifications’
and the fact that he would not be able
to obtain employment in Germany. His evidence in this regard,
ironically, supports a finding
that the defendant’s decision to
relocate is reasonable and
bona fide.
Living conditions in Germany
[47]
The next question to decide is whether the defendant would be able to
provide a suitable home for the children if she is allowed
to
relocate to Germany. She plans to settle in Buchbach.
[48]
It is evident from the facts before me, that the defendant will be
reliant on maintenance paid by the plaintiff to her and
to the minor
children, whether she stays in South Africa or whether she relocates.
Regardless of where she finds herself and despite
only being 36 years
old, the defendant needs to refresh or supplement her qualifications
before she will be able earn a salary
on which she will be able to
maintain herself and contribute to the maintenance of the children.
The defendant is currently not
in a position to earn any income in
South Africa. In Germany she will be able to work part-time for her
father and earn E1300 per
month. Once employed she will receive
medical benefits for herself and the children. She will be able to
apply for a government
grant to assist with the maintenance of the
children once she is in Germany. Except for some disbursements,
schooling is free in
Germany.
[49]
Although the defendant does not know how her career path will evolve
in Germany, it is evident from the information above that
she
properly planed, and thought practically about the proposed
relocation.
[50]
During his evidence-in-chief plaintiff stated that he does not regard
the circumstances where the defendant wants to settle
to be
appropriate. He stated that he visited the area regularly when he was
in Germany and that the people there are not used to
seeing black
people. His children will have difficulty to blend in and become part
of the community. He also hinted vaguely that
defendant’s
brothers in law might make themselves guilty of substance abuse. He
informed the court that the defendant told
him that her father abused
her mother. He expressed the fear that there is a rise in right-wing
Nazi activities in Germany. He
said that gypsies frequented the area
and camp on her father’s holiday resort where the defendant
planned to settle. He knew
nothing about the schools the defendant
proposed to send the children to.
[51]
After the trial commenced, and during the first adjournment, Dr.
Kruger, the expert witness who testified on behalf of the
defendant,
visited Buchbach. Because she is not conversant in German, she was
assisted by a Mr. Nedal Zaobi, an English-speaking
German
psychologist who assisted her with translations and interpretations.
He also assessed some of the defendant’s extended
family
members in Dr. Kruger’s presence. I accepted Mr Zaobi’s
own assessment report, which was attached to Dr. Krugers’s

second addendum, into evidence although Mr Zaobi would not testify in
court. I attach the same value to his report that I attach
to the
other collateral sources used and referred to by the expert
witnesses. Due to the fact that Dr. Kruger provided evidence
acquired
by herself when she visited Buchbach, I am of the view that her
evidence in this regard was helpful in providing an objective
view
pertaining to the environment that the defendant plans to settle the
children if she is allowed to relocate with them.
[52]
Interviews were conducted in Buchbach with the defendant’s
father, his life partner, sisters, and their children. Dr.
Kruger
interacted with the defendant’s extended family during the
visit, she observed the houses, the immediate living environment,
the
town and the kindergarten. She met with the headmasters of the
primary school and the Kinderhaus. After hearing her evidence
and
scrutinising her report, I accept that the environment that exists in
Buchbach is a favourable environment and that it if the
environment
alone is considered (without considering that the children will have
to adapt to a new environment, without considering
the loss of
existing friends and family, without considering the trauma
associated with being separated from the plaintiff), it
will not be
to the detriment of the children to settle in Buchbach. This evidence
counteracts the speculative fears of the plaintiff.
[53]
Dr Kruger reported that she questioned the defendant’s family
members about their feelings toward the plaintiff. Although
they
stated that they were angry with him for what is happening in
South-Africa and that the defendant and children cannot visit
them,
all of them indicated that if the defendant relocates with the
children they will assist the plaintiff with accommodation
and
transport when he visits. I accept that this is uncorroborated
hearsay evidence, but I take into account Dr. Kruger’s
field of
expertise and I am convinced that she would have reported if the
family members showed only a negative attitude towards
the plaintiff.
[54]
It is undeniable that the children will not live in Buchbach in the
same luxurious circumstances that they are used to when
they are
staying at the plaintiff’s house. However, I consider that any
affluence to which the children are treated to in
South Africa is
restricted to their relationship with the plaintiff. Due to the
defendant’s financial reliance on the plaintiff,
and the fact
that she is not provided with maintenance to allow her to live
according to the living standard that the plaintiff
enjoys (the cash
component of her maintenance was reduced to R10 000 in November
2017), linked to the fact that she cannot
work while in South Africa,
she is, while in South Africa, not able to provide a living
environment that compares financially with
that of the plaintiff. I
also consider that it has been held in
Shawin
v Laufer, supra
, 669A, that to be able
to live in affluence is not necessarily of educative value to
children; their education and happiness in
their formative years
depend, or should depend on other things in life.
[55]
When parties in a bi-national relationship procreate, the children
that are born from this union have an interest in finding
their roots
in both cultures. To date the children’s German heritage was
underplayed. The plaintiff did not allow the children
to attend the
German school. Since the break in their relationship he insisted that
the defendant left the children’s passports
with an independent
attorney and thus prevented any contact between the children and
their extended family in Germany, despite
evidence that a bond
existed with the eldest child and the family in Germany (the youngest
being too young to recall his previous
visit). In doing this the
plaintiff prevented a healthy bond to develop between the children
and their extended family in Germany
and undermined the children’s
right to cultural development. (If the plaintiff was afraid that the
defendant would abscond
with the children to Germany it is catered
for and countered by South Africa and Germany being signatories to
the Hague Convention,
a fact of which his legal representatives
surely would have had knowledge, and the fact that the defendant
returned from a visit
when the marriage was already unstable.)
[56]
The children communicate with the defendant and maternal grandmother
in German and the evidence before me is that the children
can
communicate effectively in German - T. is fluent in German and K. can
converse with ease. I take into consideration that there
might be a
period in which the children will have to adapt to the German
environment, but I also take into consideration that children

generally have a cunning language ability. No evidence was placed
before me indicating that the German language in itself will
be a
barrier that I have to consider, except for the fact that Dr. Strous
questioned whether T. would easily adapt to schooling
in Germany. Dr.
Kruger, testified that T.’s Global IQ scores falls in the above
average range. His Verbal and Performance
Scales are in the Superior
range. She opined that a transition period in kindergarten (Gr. 0)
will assist T. to adapt to the German
school environment.
[57]
Since T. would be attending the German equivalent of Gr. 0 in
kindergarten for a few months before the school year commence,
if
relocation is permitted, I am satisfied that his educational needs
will be catered for.
[58]
The defendant testified that even if T.’s school career would
be delayed for a year, the sacrifice will be worth the
while for the
emotional security and stability that the relocation will bring to
him.
[59]
The defendant herself will be in a safe environment if she relocates
and if the children are with her in Germany, she will
be able to
provide the necessary emotional support to them to assist them with
the transition. She will be assisted not only by
her extended family
but her own mother whom the children knows and are comfortable with.
In light of the above, it needs to be
decided whether it is in the children’s best interests to
accompany the defendant to
Germany or to stay in South Africa with
the plaintiff.
Considering the defendant’s
role
[60]
Plaintiff’s counsel urged the court from the opening address,
to the closing, to be very careful not to be guided by
the so-called
‘maternal preference rule’ when a decision is made as to
the primary residence (or contact and care regime)
of the minor
children. Since counsel ‘accused’ the defendant’s
main expert witness, Dr. Kruger, as well as the
Family Advocate and
Family Councillor, all witnesses who testified that it would be in
the best interests of the minor children
to relocate with the
defendant to Germany, of unduly applying the maternal preference
rule, it is necessary to address this issue.
[61]
The essence of the maternal preference rule can hardly be described
better than by quoting a passage from
Myers
v Leviton
1949 (1) SA 203
(T) 214 where
the learned Judge stated – ‘
There
is no person whose presence and natural affection can give a child
the sense of security and comfort that a child derives
from his own
mother - an important factor in the normal psychological development
of a healthy child.
’
[62]
I am well aware that when the post-divorce contact and care regime
that is in the affected children’s best interests
need to be
determined in 2018, the appropriate care and contact regime needs to
be founded on the facts and circumstances of the
case, and not on
‘
generalisations
such as the ‘tender age’ doctrine
(maternal preference rule)
or
the principle of ‘preserving the status quo’
.
[29]
It is however not the promulgation of the Children’s Act
per
se
that
facilitated the development of this line of thought. In
Van
Der Linde v Van Der Linde
1996 (3) SA 509
(O) 515B-C 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.
[30]
The court held in
V
v V
1998 (4) SA 169
(C) 176F-G by Foxcroft J: ‘
The
old position where the custody of young children was invariably
granted to mothers has changed. 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.
The
evidence in this case amply demonstrates that plaintiff was a highly
suitable father …’
.
[63]
This line of case law supports the principle that the quality of
parenting is not determined by gender. It is not the gender
of a
particular parent that entails him or her to be considered the
primary caregiver of a child, but, as is evidenced in the courts’

reasoning and rulings in the cases referred to, the factual
circumstances of each case.
[64]
This development, however, does not mean that maternity should never
and to no degree ever be considered as a factor. Willis
J explained
in
Ex parte Critchfield and Another
1999 (3) SA 132
(W) 143A-E that is does not amount to unfair
discrimination to have regard to maternity in a determination
pertaining to the custody
of young children. Courts must however not
place undue weight upon this factor and maternity can never be the
only consideration
of importance in determining custody of young
children.
[65]
The evidence shows that the defendant is devoted to the children.
Despite the allegations made in the summons that ‘
the
defendant frequently absented herself from the home
for
extended period of times
and
abandons
the minor children in the care of the domestic staff or third
parties’
, and that the ‘
defendant
is
not a fit and proper person
to be the primary care-giver of the minor children or to provide
their primary place of residence’
,
not one iota of evidence has been lead to support these contentions.
In fact, a whatsapp message was discovered by the defendant
that was
sent by the plaintiff to the defendant in which he praises her for
being ‘the best mommy’. It, however, shows
the lengths to
which the plaintiff will go in order to attempt to unjustifiably
discredit the defendant to suit his own purposes.
The evidence also
shows that the defendant was, since the children’s births, the
continuous presence in their lives.
[66]
The plaintiff did endeavour to prove that the defendant’s
anxiety is excessive, rubs off on the children, and should
preclude
her being afforded the primary residence of the children since she
may also be anxious in other situations in life. None
of the experts
who testified in this hearing said that the defendants’
anxiety, even extreme anxiety, causes her to be an
unfit mother.
Although Dr Strous, who testified as the plaintiff’s expert
witness, hinted that the defendant may show signs
of a paranoid
personality disorder, this finding was refuted by Dr. Benn, a
psychiatrist, who testified at the defendant’s
behest. Both Dr.
Kruger, and Dr Benn attributed the defendant’s anxiety to the
circumstances within which she currently finds
herself – to
wit
being embroiled in a ‘custody’
(care and contact) battle for the children and being faced with the
possibility of ‘losing’
the children while not having the
benefit of being supported by her family and feeling overwhelmed by
having to face not only the
plaintiff, but also his extended family
with their influence and wealth.
[67]
In addition it is relevant that the defendant is still breastfeeding
the youngest child. Although it was not put to the defendant
during
cross-examination, plaintiff’s counsel argued in closing that
the court cannot accept that the defendant is indeed
still
breastfeeding because the defendant never testified that she was. In
light of the fact that the plaintiff admitted in the
summons (par
9.4) that the defendant is still breastfeeding, there was no need to
lead any evidence pertaining to breastfeeding.
In addition, the issue
of breastfeeding was canvassed by the plaintiff’s counsel with
Dr Strous, Dr. Kruger and Prof. Jacklin.
If the plaintiff wanted to
advance the argument that the defendant has since the issue of the
summons weaned the young child, a
proper basis for such an argument
had to be laid and it had to be put to the defendant during
cross-examination.
[68]
I will not engage in an analysis whether it is natural or healthy for
a child of three years and several months to be breastfed.
The issue
of prolonged breastfeeding is contentious and different opinions
exist in this regard. I asked Dr Strous whether he was
aware of the
organisation
La
Leche League
who will probably have different opinions pertaining to prolonged
breastfeeding than the opinion that he held, and he confirmed
that he
was aware of them and that they might have a different view. What is
important for this matter, is whether the abrupt weaning
of a child
who is still (even if only sporadically) finding comfort at his
mother’s breast,
[31]
will adversely affect the young child, specifically if the weaning is
accompanied by the mother relocating to another country with
the
child remaining behind.
[69]
Helpful evidence was provided by a ‘last minute’ expert
called by the plaintiff, Prof. Lorna Jacklin. Prof. Jacklin
deems
prolonged breastfeeding to be detrimental to the ability of a child
to develop independence, but conceded that it is impossible
to force
a child who does not want to breastfeed, to breastfeed. She stated
that it would be traumatic and detrimental to wean
a child abruptly
in the midst of other trauma. She also testified that a child would
experience separation from either parent as
extremely traumatic.
[70]
Allegations were also made that the defendant endeavours to frustrate
the minor children’s contact with the plaintiff
and that she
tries to alienate them from him. The evidence that has been provided
in this regard refers to events that occurred
during the third phase
of the parties’ relationship. The defendant conceded that she
made mistakes during this period. She
also testified that she engaged
the professional service of a psychologist Ms. Marie Botma to provide
guidance as how she should
act in the best interests of the children
in these circumstances. It was evident for me that the defendant was
susceptive to advice
as how she should conduct herself to the best
interests of the children.
[32]
[71] The defendant’s reluctance
and opposition to allow the plaintiff with the contact that he
claimed, particularly during
the third phase of their relationship,
should be seen against the historic background presented by the third
phase of the parties’
relationship. I use the words ‘allow’
and ‘claim’ purposively as it indicates the emotions and
attitudes
associated with the parties’ demeanour during that
period. The question could be asked as to whether it is the correct
point
of departure to consider that one parent has to ‘allow’
the other with contact. It is evident that the plaintiff did
not at
the time think that he needed his wife’s permission to take the
children whenever he wanted to facilitate contact
with them. The same
point was raised during the hearing.
[71.1] Context is
very important. Section 18(2)(b) of the Children’s Act read
with s 20 entrenches parents’ rights to
maintain contact with
their children. It is in normal circumstances, absent instances where
there are allegations of child abuse,
unacceptable for one parent to
bar the other parent’s access to children – it is
likewise unacceptable to disregard
the other parent’s
pre-planned schedule with the children and randomly, without prior
arrangement, claim contact. And it
is here that the defendant’s
behaviour is contextualised by the historical events. The defendant
testified convincingly that
the plaintiff was generally not very
involved in the children’s lives during the third phase of the
parties’ relationship.
During this period she was responsible
for every aspect of the children’s day-to-day care. She took
offence to the fact that
the plaintiff did not respect her and
regarded the disruption of the children’s schedule as
detrimental. The defendant was
concerned for their son T.’s
emotional welfare because the plaintiff did not always honour his
contact arrangements. This
is the reason why the defendant initiated
the first Rule 43 application in an effort to structure the contact
regime between the
parties. Although it was argued that this
application never came to fruition (it is not quite clear why but the
defendant testified
that the plaintiff raised an objection to the
application because it was too long) and was later ‘replaced’
by a Rule
43 application brought at the behest of the plaintiff, the
defendant’s need to structure the contact between the plaintiff

and the children in the children’s best interests is evident.
[71.2] The
defendant testified that the plaintiff was an involved parent during
the second phase of their relationship, but that
his involvement then
decreased as their relationship deteriorated, to the extent that she
often had to ask him to honour his contact
arrangements with T.. This
is why she described the plaintiff’s claim to obtain the
primary residence of the children as
laughable. She testified that
she thought that she would have to engage in court action to force
the plaintiff to be involved in
his children’s lives –
his conduct and absence during the third phase of their relationship
did not forewarn of a ‘custody’
battle. Even during the
second phase of their relationship when the plaintiff was an involved
parent, she was the stay-at-home-breastfeeding
parent, and he was as
involved as a parent who is employed and who is the breadwinner, can
be. He could not spend the same time
with the children as the
defendant who was a stay at home, breastfeeding parent. Although the
plaintiff did support the defendant,
he did not share equally in
caring for the children when they were babies, a reality attested to
by the fact that his mother had
to move into their home to assist the
defendant after T.’s birth. The defendant’s evidence that
she was primarily responsible
for the children’s day-tot-day
care that, later,
inter alia,
included
transporting T. to school is corroborated by Chantel Anderson, the
principal at the Montessori school where T. was enrolled.
(Anderson’s
evidence is important because it refutes the plaintiff’s
evidence that he was ‘as’ involved
as the defendant when
transporting the child to school during the third phase of the
parties’ relationship. Anderson also
testified that although
the plaintiff attended concerts and prize-giving ceremonies, he did
not attend formal parent-teacher meetings,
that aspect was handled by
the defendant alone.) Anderson testified convincingly and there is no
reason not to accept her evidence.
[71.3] Both the
plaintiff and the defendant erred in their approach pertaining to the
contact with the minor children. The defendant,
as the parent who was
responsible for managing every aspect of the children’s care
and who maintained a continuous presence
in their lives, opined that
the children were too young to be separated from her for prolonged
periods, particularly because the
youngest was still breastfeeding.
It is evident that the defendant did not deny the plaintiff total
contact- she wanted to limit
his contact according to what she held
to be in the best interests of the children. In this, she did not
accept, or deal with,
the reality of divorce. Unfortunately children
miss out on the opportunity never to have to be separated from either
parent when
parents are not able to maintain their own relationship,
and the children have to develop coping mechanisms to deal with this
traumatic
experience long before children from unbroken homes have to
deal with it. Parents must assist their children to develop such
coping
mechanisms in the children’s best interests. If parents
are not able to create an appropriate contact regime amicably, the

children are made aware of the severity of this loss, and what could
have been experienced as a change of circumstances to which
a child
can adapt after an initial transitional period, becomes a prolonged
traumatic experience. The plaintiff on the other hand,
motivated by
the belief that he has as a strong right to the children as the
defendant, completely disregarded the defendant during
the third
phase of the parties’ relationship and claimed his rights as he
deemed fit. He also disregarded the children’s
right to live in
a stable and structured environment.
[33]
This approached elevated the acrimony between the parties, and was
definitely not in the best interests of the children.
[71.4] The blame
for the acrimony and the subsequent disruption of the children,
should be apportioned between both parents and
this is not in itself
enough for a finding that the defendant did not have the children’s
best interests at heart when she
endeavoured to regulate the contact
between the plaintiff and the children. It also does not support a
finding that it is probable
that the defendant will in future
frustrate the plaintiff’s contact with their sons.
[72]
During cross-examination, it was put to the defendant that
correspondence between the plaintiff’s attorneys of record
and
her legal representatives is indicative of the fact that she tried to
frustrate contact between the plaintiff and the minor
children. After
scrutinising this correspondence, together with the letter referred
to by defendant’s counsel, and hearing
defendant’s
evidence, I cannot on the basis of this correspondence, find that an
inference can be drawn that the defendant
will in future obstruct the
plaintiff’s contact with their minor sons.
[73]
The plaintiff also alleged that the defendant hampered the
appointment of a case manager or a parenting co-ordinator by not

responding to this requests as stated in some of the correspondence.
Plaintiff’s counsel argued that this should be defined
as
obstructive behaviour and that is indicative of the defendant’s
tendency to frustrate contact and the amicable settlement
of
disputes. The defendant testified that she and her respective legal
representatives were inundated with correspondence from
the
plaintiff’s legal representatives to the level that she was
advised by her legal representatives not to read all the
letters
because it upset her. She stated that the host of correspondence was
a result of the plaintiff trying to build a case and
that the content
of the correspondence is not a true reflection of what was actually
occurring. The question arises as to why the
plaintiff only made
these requests in letters at this time and refrained from using the
available legal avenues to have a parenting
co-ordinator or case
manager appointed. There is no evidence that the plaintiff
endeavoured to engage the Family Advocate at this
stage. In addition
there is no indication at all in the completed Annexure A to the
summons that the parties were in discord pertaining
the contact and
care arrangements with the minor children. If it is considered that
the purpose of Annexure A is to alert the Family
Advocate of conflict
situations that exist during divorce proceedings that impact on the
wellbeing, contact and care of any affected
minor children, the fact
that no mention is made in Annexure A of any disputes is a telling
factor that weighs against the case
the plaintiff wishes to
pursue.
[34]
[74]
According to the most recent mid-divorce contact regime that was
implemented respectively in August 2016 – for the eldest
child-
and August 2017 – for the youngest child-, the plaintiff and
defendant shared both minor children’s residence
in a 40%-60%
relation. I take cognisance of the principle stated in
HG
v CG
[35]
where
Chetty J noted that courts have to be mindful in cases of joint
‘custody’ where parents spend a more or less equal
amount
of time with the children since relocation could have a more
detrimental impact on the child and his or her relationship
with the
left-behind parent. I take into consideration that on the evidence
before me, I must accept that K., the youngest child,
has never been
separated from the defendant for a period exceeding two consecutive
nights, and that only from August 2017. The
evidence indicate that
although the plaintiff took T. on holiday for 10 days, T. was
otherwise in the mid-divorce care and contact
regime also not
separated from the defendant for a period exceeding two nights at a
time. In
LW
v DB
2015 JDR 2617 (GJ) the parents were joint ‘custodians’
and, Satchwell J held that the impact of relocation on the children

is a fact that courts have taken into consideration, but that joint
‘custody’ in itself does not prevent the court
to grant
relocation.
[75]
The expert evidence before me is that the children are bonded with
and attached to the defendant. I accept that the children
will be
severely traumatised if their relationship with the defendant is
severed.
[76] The defendant will be able to
assist the children in making the transition to a new environment in
the event that they are
allowed to relocate, and to cope with the
challenges the change will present. That the defendant understands
and accepts that the
children need contact with the plaintiff for
their own happiness is evident from the fact that she attempted to
facilitate regulated
contact between the plaintiff and the children
during the third phase of the parties’ relationship. In
addition defendant’s
evidence was
inter alia
that she
kept the custom of prayers before meals that was implemented by the
plaintiff intact, despite the dissolution of the marriage.
She also
testified that she told the two boys of their father’s football
career and its highlights and that they were duly
impressed when she
recounted that she was present in the stadium when he scored his
first goal for Kaizer Chiefs.
Considering the plaintiff’s
role
[77]
By acknowledging the role that the defendant plays in the children’s
lives, I am not discounting the role of the plaintiff,
and it is also
a factor that I consider.
[78]
Although the facts do not support a contention that the plaintiff was
at any time the primary caregiver of the children, I
accept that he
was an involved and devoted parent until his relationship with the
defendant broke down.
[79]
I accept the defendant’s evidence that the plaintiff was less
involved in the children’s lives during the third
phase of
their relationship,
[36]
but that he became more involved again at the junction where the
third and fourth periods overlap. The expert evidence before me
is
that the children are bonded and attached to the plaintiff. I accept
that they will suffer a tremendous loss when their immediate
physical
relationship with him is severed.
[80] There is however one concern
regarding the plaintiff’s conduct that I need to consider. Some
of the incidents that gave
rise to this concern are mentioned –
(i) During the third phase of the parties’ relationship the
plaintiff removed
the minor children from the defendant’s home,
without prior announcement, on more than one occasion, without
informing the
defendant where he was taking them or when he will
bring them back; (ii) In addition, the defendant’s testified
that the
plaintiff disconnected the DSTV, and ordered it to remain
disconnected even after the defendant endeavoured to arrange to pay
the
monthly premiums from her maintenance. He then phoned and asked
their son, T., whether he was watching his favourite television

program, and told him that he (the plaintiff) is recording the
programme and that T. can catch up when he visits him. (I
paraphrase).
This was not challenged during cross-examination; (iii)
The plaintiff could not explain how it could be justified that he
benefited
from his parent’s wealth but then rely on his income
of R60 000 a month when maintenance is to be determined; (iv)
The
plaintiff justifies laying criminal charges against the defendant
for taking the children to Durban for a vacation when she obtained
a
court order to do that but the order erroneously only referred to the
eldest son and not both children. That he expected her
to take one
child and leave the other is incomprehensible.
[80.1] Although it
cannot be completely held against the plaintiff if he acted with
malice against the defendant in light of the
extreme levels of
acrimony between the parties, the fact that his conduct towards the
defendant directly impacted on the children,
is considered by the
court. For example - the plaintiff’s motive for cancelling the
DSTV contract might have been to inconvenience
the defendant, but due
to this the children were not able to watch their favourite
television programmes when they stayed with
the defendant; the
plaintiff might think that the defendant does not deserve to live in
accommodation that is comparable to his,
but by arguing that she must
live in a residence that he can afford (with a maximum of R12 000
rent per month) while he then
lives in luxury, is to the detriment of
the children because they would be forced to share the defendant’s
accommodation
which would stand in stark contrast to the plaintiff’s
home.
[80.2] Although the
plaintiff loves his children it seems that he did not always pause to
think how his conduct towards the defendant
affected the children. It
seems as if he is sometimes motivated by his own interests rather
than those of the children. In addition
it is as if the plaintiff
sometimes have a microscopic vision and forgets to consider the whole
picture. An example hereof is that
the plaintiff faulted the
defendant in the summons for failing to wean the young K. from the
breast. He then presents a video of
the child eating at the trial to
prove that the child does eat and does not need to be breastfed. The
plaintiff regards only the
nutritional aspect of breastfeeding but
disregards the nurturing component thereof.
[81]
Evidence was led by the defendant that when the children were
received by her on 23 November 2017, that K. was extremely agitated.

The conversation between her and K. was recorded. The sound track of
the conversation was discovered and handed up to me. A transcript
and
sworn translation thereof was tendered into evidence. The agitated
child repeatedly stated that he does not want to go with
his mother
to Germany. He also stated that his mother does not love him and that
it is only his father and the father’s family
that loves him.
The defendant immediately contacted Dr. Kruger who was on her way to
attend a family gathering. Dr Kruger agreed
to see both children on
the premise that T. not be forewarned that she is going to discuss
the incident with him. Her evidence
is that K. was extremely
aggressive when he saw her and did not want to engage with her. When
she interviewed T., T. stated that
K.’s agitation sprouted from
a conversation with the plaintiff wherefrom he (K.) understood that
that his mother is going
to take him to Germany and that he will
never see his father again. T. indicated that he (T.) disputed the
version that they will
never see the plaintiff again because they
would be able to visit each other. T. repeated this when he was
interviewed by Dr. Strous,
[37]
and when he was interviewed by the Family Councillor, Mrs. Naidoo.
The plaintiff himself denied that he ever told the children
that he
will not see them again. He said he told T., who brought up the
topic, that ‘
you
won’t see me as you see me now, but that everything will be
ok
’.
He could however not provide any reason at all for K.’s
distress and stated that when he put K. in the car the child
was
calm. Although he did not deny the child’s agitation, or that
the defendant received the child in this agitated state,
he could not
explain how it came about that the defendant received such an
agitated child. Although I cannot, on the evidence before
me, find
that the plaintiff attempted to alienate the children from the
defendant, I do find it very strange that the plaintiff
was not able
to proffer any possible explanation as to the cause of K.’s
intense agitation, particularly since he (the plaintiff)
denied the
conversation as told by T. and denied saying to K. that his mother
does not love him, but only the African family does,
as K. stated.
The plaintiff testified that it is his mother who drove the children
to the handover point. This might explain why
he did not know why K.
was in this emotional situation, although this explanation is
contrary to what Dr. Kruger states T. told
her, namely that the
plaintiff told K. in the car on their way to school. The grandmother
was not called to clarify the confusion.
[82]
In reaction to an allegation made by defendant’s counsel, the
plaintiff denied that he engaged in this trial to be allocated
the
primary residence of his children on behest of his mother. It is
evident that the plaintiff’s mother plays a very big
role in
not only his life, but his relationship with the children. This is
indicated,
inter
alia,
by
the fact that the plaintiff at one time referred to the children as
‘
our
boys’
in a context that referred to him and his mother; and the fact that
when the plaintiff was away with T. during April 2017 his mother

exercised his contact with K.. I do not share the defendant’s
view that the plaintiff’s mother’s investment in
the
lives of her grandchildren should only be seen in a negative light.
The same goes for the allegation made by the defendant
that the
plaintiff does not utilise his contact rights himself, but ‘farms’
the children off to his mother and his
extended family. The plaintiff
testified that his support system consists of his extended family and
that his extended family is
an important part of who he is. He also
testified that grandparents play a big role in the black culture. I
do not regard the general
involvement of the extended family and the
grandparents in the children’s lives as a negative.
[38]
If the relationship between the defendant and the plaintiff’s
family did not evolve to the level of acrimony as evinced to
the
court, I doubt whether the defendant would have faulted this
relationship, particularly because she also relies on her own
mother
for support and assistance. I therefore find that the paternal
grandmother- and extended family’s involvement is generally

seen as beneficial to the minor children.
[39]
However, the high level of acrimony that do exist between the
extended family and the defendant needs to be diffused in the
children’s
best interests.
[82.1] It is
however in the best interests of the children that the defendant’s
position as parent should not be usurped by
the paternal grandmother.
It was clearly the defendant’s case that the paternal
grandmother’s involvement in their
marriage contributed to the
break-up and that the paternal grandmother’s extended
involvement in the children’s lives
contributed to the
acrimony. The plaintiff testified that his mother was like ‘
a
second mother’
to the boys, he
referred to the children as ‘
our
boys’
when referring to himself
and his mother, and testified ‘
this
is me and my mother’
acting in
the best interests of the children, when confronted in
cross-examination with questions as to why his mother signed a

certain document pertaining to T.’s enrolment in The Ridge
(school) that was supposed to be signed by the defendant. The

defendant testified that her input in the children’s lives were
minimalised. Her wishes pertaining to T. and K.’s schooling

were completely ignored. The evidence before me substantiates her
view. She testified that she has ‘
her
own dreams for the children’
, and
that she wanted to instil additional morals and values than the
values supported by the plaintiff’s family.
The
views of the child
[40]
[83]
Since the children who are affected in this matter are very young, I
did not think that it would be beneficial to acquire their
direct
inputs. Section 10 of the Children’s Act has been adhered to in
that the children’s views were canvassed by
the experts,
including the Family Councillor.
[84]
It is evident, however, that the parties themselves attributed
importance to what the children said on different occasions.
Both the
defendant and the plaintiff testified of times that the children
cried when they had to be handed over or returned. I
am convinced
that it is the parties’ emotional involvement in their dispute
that informed their views. Life experience taught
that young children
who are cared for and loved by both parents yearn to be in both their
parents’ presence. The fact that
a child cries when he is
handed over from one parent to the other, or is reluctant to cut
short or end an enjoyable activity to
return to his other parent,
does not indicate that he does not want to be with the other parent.
It means that he does not want
to be separated from the parent with
whom he is and finds it difficult to make the transition. Where
parents have an amicable relationship
they can provide the necessary
support to assist the child with the transition. Where, however,
parties are in an acrimonious relationship
they are not able to
provide the necessary emotional support. I am therefore not making
any adverse finding against any of the
parents because a particular
child was crying when he had to leave one parent, or was not ecstatic
to return to the other. Since
I believe it is in the best interests
of the children to retain their bond and attachment with both
parents, I intend providing
for a generous contact regime.
[41]
When a child leaves and returns he will need assistance with the
transition.
[85] It is evident, however, from both
Dr. Strous and Dr. Kruger’s evidence that the eldest child, T.
is aware of the possibility
of relocation. Due to the incident that
took place on 23 November 2017 where the defendant recorded a
conversation between herself
and an agitated K., both Dr. Kruger and
Dr. Strous had conversations with T. again. It is reported by both
Dr. Strous and Dr. Kruger
(in fact this is the only aspect on which
their respective reports on this matter, correspond) that T. reported
that his father
said that if they went to Germany they would not see
him anymore, but that he (T.) disputed this on the notion that they
could
visit each other. Despite Dr. Strous’s conclusion that
‘
T. may not realize that should he relocate to Germany, he
will see his father far more frequently than at present’
(based on the oral evidence this sentence must read far less
frequently’) neither of the experts testified that T. conveyed

to either of them the same apprehension or aversion at the mere
thought of relocation as the very young K. did. When the Family

Councillor asked T. how he would feel if he had to move to Germany he
first stated that he does not know because he is always thinking

about it, later he noted that it would be better to stay here because
then he could spend three nights with each parent.
The practical difficulty and
expense of a child having contact with the parents, or any specific
parent
[86]
When a court considers whether a parent should be allowed to relocate
with the children, the court does not denounce the right
of the
parent who remains behind or the right of the child to have
meaningful and constructive, loving contact with that parent.
This is
even more true when, as on the facts before the court, one of the
parents will inevitably lose frequent contact with the
child.
[87]
One of the factors that the court must then consider, is which parent
will most likely be able to ensure that contact between
parent and
child are maintained on a regular basis. In a context where both
parents have expressed the fear that the other parent
will endeavour
to prevent them from seeing their children at all, the question is
likewise which parent will be able to utilise
the legal mechanisms
that exist to enforce this contact.
[88] On the facts of the case before
me, the plaintiff is undeniably in the best position to enforce his
rights, irrespective of
whether in South Africa or Germany. The
defendant has testified that it is only because she obtained
financial assistance from
an NGO that she was financially able to
defend the action to the end- in fact, her unchallenged evidence was
that it was due to
her financial predicament that she was not able to
retain the same legal representatives throughout. The plaintiff on
the other
hand, might be bound to some extent to live within his nett
salary of R 60 000, 00 per month, but as this trial evinced, he

has the backing of his family when the children are concerned. The
plaintiff has appealed to the importance that grandchildren
have for
grandparents, and I therefore believe that when these concerned
grandparents are convinced that their son’s contact
rights are
disregarded, that they will (once again) put their wealth to the
plaintiff’s disposal. I am similarly convinced
that the
plaintiff will be able to acquire and save the necessary funds to
enforce regular contact rights with his sons. He will
also be able to
provide them with the necessary electronic devices to enable them to
contact him on a regular basis.
The expert witnesses
[89]
In a trial of this nature, where expert witnesses have to provide
their opinion pertaining to what might be in the children’s

best interests, they often substantiate their opinion with
information conveyed to them by the child. In addition they often
rely
on collateral sources to substantiate a particular view. Due to
the fact that the experts may be cross-examined on their opinion
and
the validity of the foundation from which their conclusions are
drawn, the probative impact of the collateral sources and the

information provided by the secondary sources are minimal. The court
is interested in the expert’s opinion and the strength
of the
foundation on which the opinion relies determines the probative value
of the opinion itself. It is the expert’s evidence
as to what
he or she saw, and experienced that the court can rely on for
guidance.
[90]
The main expert witnesses were Dr. Martin Strous and Dr. Deidri
Kruger. The Family Councillor, Ms. Vijay Naidoo, and the Family

Advocate, Advocate Seema Maikoo, are experts in own right. Prof.
Lorna Jacklin a neurodevelopmental paediatrician, and Dr. David
Benn,
a psychiatrist, also testified
[91]
I have considered all the expert witnesses’ written reports and
their oral evidence. I will not engage in a detailed
analyses of
their evidence and have incorporated the most relevant aspects of
their findings in my judgment thus far. Since none
of the experts
were of the opinion that any of the parties are unfit to parent the
children I will not dissect their evidence as
it pertains to the
personalities of the parties. I take cognisance of the emphasis that
was placed by plaintiff’s counsel
on the fact that both Dr.
Strous and Dr. Kruger found the defendant to be anxious while the
plaintiff appeared to be more calm
and in control. I view this in
light of Dr. Kruger and Dr. Benn’s opinions that the
defendant’s anxiousness is directly
related to the situation
wherein she finds herself, which includes being in a foreign country,
without the continuous support of
her own family, without being able
to earn an income to provide for herself, while being involved in a
high conflict relationship
with the plaintiff and his family, the
people on whom she is dependant for her financial needs. Dr. Kruger
attributed the plaintiff’s
more contained behaviour directly to
the fact that he is in a familiar, supportive environment.
[92]
The major difference between the recommendations made by Dr. Strous
and Dr. Kruger is that Dr. Kruger recommends that the children

relocate with the mother. Her recommendation is supported by the
Family Advocate and the Family Councillor. Dr. Strous opined that
is
in the best interests of the children to stay with the plaintiff in
South Arica.
[93] Plaintiff’s counsel
criticised the opinions, and the conduct of Dr. Kruger, Mrs Naidoo
and Adv. Maikoo respectively.
She held Dr. Strous in high esteem. In
light of the criticism I briefly deal with the experts as witnesses
below.
Dr. Strous
[94]
Dr. Martin Strous is a chartered psychologist specialising in
psychotherapy. Dr. Strous’s opinion is that the children
should
reside with the parents on an equal time basis, alternating the time
the children spent with both parents. This, was in
his opinion the
only residency model that would be in the children’s best
interests. It is evident that Dr. Strous discounted
the possibility
of the defendant relocating when he compiled his report.
[42]
In his report he stated that if the defendant was forced to relocate
the children should remain in South Africa. He was very reluctant
to
address the possibility of the children having to be accommodated in
a primary residence regime.
[95]
Despite the effort that Dr. Strous put into compiling his
comprehensive report, it does not provide me with sufficient guidance

in a scenario where I must decide what would be in the children’s
best interests where the children is inevitably going to
be separated
from a parent. His report is directed at describing the impact that
it would have on the children if they are deprived
of the presence of
the plaintiff. Not only is no mention made of any benefits that
relocation might have (and during his evidence
the witness stated
that it is not his role to provide ammunition in favour of a view not
supported by him) but the report does
not address the trauma that the
children will experience when they are separated from the defendant,
at all.
[96]
I appreciate Dr. Strous’s view that he is an advocate for the
best interests of the child, but his duty as expert witness
is to
assist the court by providing a balanced opinion on what would be in
the best interests of the child in the circumstances
that the court
need to adjudicate.
[97] The fact that Dr. Strous
recommends a shared contact regime is indicative of the fact that he
is not of the view that either
of the parents is unfit to care for
the children.
Dr. Kruger
[98]
Dr. Deidri Kruger is an educational psychologist.
[99]
I am of the view that the plaintiff’s counsel’s criticism
of Dr. Kruger as contained in counsel’s heads of
argument, are
unfounded. To argue that Dr. Kruger attempted to rely on a secular
magazine and local newspaper to substantiate her
opinion is not
supported by the facts. During cross-examination Dr. Kruger made
reference to the fact that she found an article
in a secular magazine
interesting since the content presumably had a bearing on issues that
are canvassed in this trial. She was
not provided with the
opportunity to elaborate but it was clear that she read the article
when in transit to Germany. She did not
base her professional opinion
on the article. In the other instance she was defending the choice of
using a specific test and indicated
that it was also mentioned in the
newspaper that this test is used by professionals in similar
circumstances. She stated that she
used the test because it was part
of her training, not because she read about it in the newspaper.
[100]
Dr. Kruger was criticised for interviewing the children before she
interviewed the plaintiff. She,
inter
alia,
attributed it to a hectic work
schedule and being requested to fit in the parties on short notice.
She also said that she was informed
by the defendant’s
attorneys that Dr. Strous conducted interviews with the plaintiff and
the children without consulting
with the defendant. It was stated by
Ms. de Wet that Dr. Strous’s interview schedule indicates that
this was not correct,
since Dr. Strous consulted with both the
plaintiff and the defendant before he consulted with the children. It
is apparent from
Dr. Strous’s report, however, that he also
consulted with the plaintiff and the minor children at a previous
opportunity
in 2016. He stated that the defendant at that stage
refrained from being interviewed by him. Although this report
apparently did
not contain recommendations, it was still a report
that was captured in a joint expert minute together with Dr. Robyn
Fasser. Dr.
Kruger’s perception was thus not incorrect. I find
nothing sinister in her behaviour.
[101]
In my view Dr. Kruger created a good impression as witness. She
evinced a balanced perspective and considered the positives
and
negatives of both scenario’s, namely if the children relocate
with the defendant or stay with the plaintiff. She was
clearly up to
date with the environment in Buchbach and confident about her own
observations.
[102]
I did not find Dr. Kruger to be biased in favour of the defendant. At
most, she was defensive about her recommendations and
conclusions.
Contrary to what is stated in the plaintiff’s heads of
argument, an analysis of the record indicates that there
were
instances where she readily made concessions.
[43]
She stated unequivocally that she was throughout the trial open to
change her opinion if she found any evidence that her view was
wrong.
She was not swayed from her opinion that it will be in the children’s
best interests to relocate with the defendant.
[103]
Dr. Kruger is criticised by Ms. De Wet that she is gender-biased and
favour the maternal preference rule. Dr. Kruger’s
view,
supported by the research that she referred to, is that from
conception parents fulfil different roles in their children’s

lives. Although fathers can indeed fulfil the role of primary
caregivers, mothers provide emotional support in a different way
than
fathers do - on an emotional level a mother cannot be a father and a
father cannot be a mother. She also testified that as
children grow
their needs change and according to her observation in the
circumstances of the case, considering the age of the
children, it is
in their best interests not to be separated from the defendant since
she fulfils a specific need in their lives.
Dr. Kruger based her view
on the work of Schore. I accept that there are contradictory
scientific views on this issue as is evinced
by Dr. Strous’s
comments contained in his addendum.
[104]
Ms. De Wet described Dr. Kruger’s report as a rushed job, she
was also criticised for spending much more time with the
defendant
than with the plaintiff. Although it is evident that more time were
spent in interviews with the defendant than with
the plaintiff it
must be considered that Dr. Kruger explained that she spent a whole
night at the residence of the defendant to
observe possible night
terrors and sleeping problems. Dr. Kruger also explained that the
defendant’s assessments took twice
as long as she was assessed
in English with her mother tongue being German. I found her report
comprehensive and appreciated the
guidance that she provide
pertaining to the question of relocation, despite her view that the
minor children will in an ideal world
benefit if the parents could
stay in close proximity. It is evident that she applied her mind when
she addressed the issue under
the headings ‘Reasons for Ms M.
not to relocate’, and ‘Reasons why Ms M. should be
allowed to relocate with the
children’.
[105]
Dr. Kruger testified that in her experience, shared residence
agreements only facilitate the best interests of the children
where
the respective parents have a good relationship. This, being absent
in the present case, favours the relocation of the defendant.
[106] I found the primary differences
between Dr. Strous and Dr. Kruger’s evidence to be that:
·
Dr. Strous disagreed with Dr. Kruger’s view
that relocation could bring stability or reduce conflict. He believes
only the
Defendant would benefit;
·
Dr. Strous disagreed with Dr. Kruger that in
relation to parental conflict ‘distance could bring some
clarity of mind and
help the parents with their own recovery’;
·
Dr. Strous does not share Dr. Kruger’s
opinion that in general, although fathers can fulfil the role of
prime caregivers,
mothers provide emotional support to young children
in a manner different to what fathers do;
·
Contrary to Dr. Kruger, Dr. Strous opines that it
is in the best interests of the children to remain with the plaintiff
if the defendant
relocates.
Family Advocate
[107]
I am indebted to the office of the Family Advocate who was available
to provide a report on an urgent basis.
[108]
Although plaintiff’s counsel contended that the investigation
was concluded under time duress and that the report was
subsequently
very superficial, both the Family Councillor, Mrs Naidoo, and the
Family Advocate, Adv. Maikoo testified that they
are used to doing
assessments in this time span. It is usually not the assessments, but
the writing up of the reports, that prolong
the process.
[109]
I am not going to address the criticism that is levelled by
plaintiff’s counsel against the Family Advocate and Family

Councillor’s report save for stating that I do not agree with
the submissions by plaintiff’s counsel.
[110]
Both the Family Advocate and the Family Councillor explained their
approach and the process followed, and it is not to be
faulted. Since
the parties and the minor children have already been exposed to
various mental health professionals, and various
reports have been
lodged, the Family Councillor and Family Advocate, who function as a
team, decided to render an opinion, independent
of the
recommendations made by the various professionals involved.
[111]
They correctly assessed that the issue of relocation is intertwined
with the issue of primary residence and cannot be dealt
with
exclusively.
[112]
After considering the context of the case the Family Advocate
recommends that the minor children must relocate to Germany
with
their mother. Although emphasis was placed on the ‘tender age’
of the children and the bond that they have with
their mother, the
role that the plaintiff plays in his children’s lives was not
negated. It is not the fact that the defendant
is the mother, but the
extent of the mother(parent)-child relationship evinced by the
information evaluated by the Family Advocate
seen within the context
that is coloured by the high level of acrimony between the parties,
that underlies the recommendation.
[44]
Conclusion pertaining to contact
and care
[113] It is impossible for a court to
micro-manage the contact arrangements provided for in a court order.
These arrangements are
aimed at providing the children with extensive
but reasonable contact with both parents and any interpretation
thereof shall be
guided by this principle. After considering all the
facts and the evidence of the parties and all the expert witnesses,
particularly
the aspects set out above, against the backdrop created
by the relevant constitutional, and other legal principles and the
guidance
provided in case law I find that:
[113.1] The primary
care and residence of the children should be with the defendant, and
that she should be allowed to relocate
with them. It is in the
children’s interests that the relocation to Germany takes place
as soon as possible in order to facilitate
their adjustment to live
and schooling in Germany prior to the start of the formal school
term;
[113.1.1] Although
I do not negate the role of the plaintiff in the children’s
lives, particularly as evinced in the fourth
phase of the parties
relationship, it is the defendant who has been the continuous and
stabilising presence in the children’s
lives throughout the
happy times and the acrimony and turmoil. I am of the view that in
the circumstances, and having considered
all the facts, it is the
least detrimental for the children to be with the defendant, and
therefore in their best interest. I am
nor persuaded that the
defendant wanted to frustrate contact between the plaintiff and the
children ‘at all costs’,
and I am of the view that the
defendant accepts the children’s need, and their right to have
the plaintiff playing a significant
role in their lives. The
plaintiff is undoubtedly in the best financial position to enforce
his access and contact rights to ensure
that contact between himself
and the children are maintained on a regular basis.
[113.2] The
plaintiff is entitled to contact, including sleep-over contact with
the minor children subject to their educational,
religious,
extra-mural, cultural and social activities. The contact may be
exercised in in South Africa, Germany or any other destination
of his
choice, subject to paragraph [113.2.5] below;
[113.2.1] The
plaintiff is entitled to visit the children in Germany as often as
his personal circumstances allow. During schooldays
he is not
entitled to sleep-over contact but he is entitled to contact after
school-hours, when the children shall be returned
home at 19h00 or
such later time as agreed between the parties when the children shall
be returned home. If the children are involved
in extra-mural
activities when the plaintiff visits he shall be entitled to
transport them to and from such activities and attend
the same. The
plaintiff is entitled to sleep-over contact with the children over
weekends from the Friday after school until the
Sunday at 16h00 when
he is to return them to the defendant.
[113.2.2] The
plaintiff is entitled to contact with the children for 70% of each
long school holiday, unless the parties agree to
extend the time,
subject to paragraph [113.2.5] below, the plaintiff shall indicate 2
months in advance if, when and where he is
going to exercise contact;
[113.2.3] The
plaintiff is entitled to contact with the children during 50% of the
shorter school breaks, or 1/2 of the shorter
school breaks as agreed
to by the parties, with the exclusion of the Easter and Christmas
break – the plaintiff shall communicate
his preference to which
periods he wants to exercise the contact with the children timeously
by no later than 1 month preceding
this contact, subject to paragraph
[113.2.5] below;
[113.2.4] The
plaintiff and defendant shall alternate contact pertaining to the
Easter- and Christmas-break annually, unless otherwise
agreed between
them, subject to paragraph [113.2.5] below;
[113.2.5] To afford
the children the opportunity to adapt to their new surroundings the
plaintiff shall exercise all contact in
2018 in Buchbach.
[113.2.5.1] The
plaintiff’s overnight-contact with T. during the summer holiday
of 2018 will be limited to 12 days (i.e. 11
nights).
[113.2.5.2] Prior
to 1 August 2018 K. may be separated from the defendant for periods
not exceeding 2 (two) consecutive nights in
a 5 (five) night cycle
unless the parties agree otherwise.
[113.2.5.3] From 1
August 2018 K. may be separated from the defendant for periods not
exceeding 5 (five) nights in a 8 (eight) night
cycle unless the
parties agree otherwise.
[113.2.5.4] From 1
August 2019 K.’s overnight-contact with the plaintiff is
extended to 8 (eight) nights in a 10 (ten) night
cycle unless the
parties agree otherwise.
[113.2.5.5] From 1
August 2020 K.’s overnight-contact with the plaintiff is
extended to 10 nights unless the parties agree
otherwise.
[13.2.5.6] From 1
August 2021 there will be no restrictions on the plaintiff’s
overnight contact within with K. within the
structure of this
contact-regime.
[113.2.5.7] When
the children are in the care of the plaintiff, the arrangements
pertaining to telephonic and other contact apply
mutatis
mutandis
to the defendant.
[113.3] The
plaintiff is entitled to daily contact with the children via
telephone, Skype or FaceTime or any other appropriate social-media

application between 19h00 -20h00 German time, as circumstances
allow,
[45]
or any suitable time as agreed between the parents.
[113.4] Any costs
relating to the plaintiff exercising contact with the minor children
is for his expenses.
[114]
The parents are encouraged to each consult with a professional
therapist to assist them to work through their adverse feelings

towards each other in an effort to create an atmosphere where they
can engage meaningfully to the best interests of the children.
The
defendant should ensure that the children start with therapy to
process the trauma and loss they experienced not only due to
the
relocation, but due to the divorce and particularly the acrimony
between the parents, as soon as possible.
[115] It is trite that custody
arrangements are not set in stone and might be revisited in the best
interests of the children when
there is a significant change in
circumstances.
Maintenance
[116] The main dispute between the
parties, and the bulk of evidence led, revolved around the contact
and care regime intertwined
with relocation. Maintenance of not only
the minor children but also the defendant need in addition to be
determined.
Spousal maintenance
[117]
It is trite that while there is an obligation on parents to maintain
their children post-divorce, the awarding of post-divorce
spousal
maintenance is discretionary. There is no automatic right to
maintenance on divorce. The reciprocal duty of support that
arises
between a husband and wife when a marriage is concluded comes to and
end when the marriage is terminated.
[46]
[118]
In the summons plaintiff offered to pay rehabilitative maintenance in
the amount of R8000, 00 per month, to the defendant
for a year. In
the counterclaim defendant claimed rehabilitative maintenance in the
amount of E1000 for a period of five years,
which maintenance shall
increase by 10% per annum. In closing argument, defendant’s
counsel requested the court to provide
for lifelong maintenance.
[119]
In
Grasso v Grasso
1987(1) SA 48 (C) 52A-H Berman J said: ‘
In
setting forth, in
s 7(2)
of the
Divorce Act of 1979
. the various
factors to which the court is to have regard when considering the
payment of maintenance upon divorce, no particular
stress was laid on
any one or more of these factors, and they are not listed in any
particular order of importance or of greater
or lesser relevance. The
proper approach, it seems to me, is to consider each case on its own
merits in the light of the facts
and circumstances peculiar to it and
with regard to those factors set out in this particular section of
the
Divorce Act
- which list of factors is clearly not exhaustive of
what the court is to have regard to in deciding what maintenance, if
any,
is to be paid upon divorce by one spouse to the other, for the
court is free to have regard to any other factor which, in its
opinion,
ought to be taken into account in coming to a fair and just
decision.
’
[120] The evidence that has been led
shows that the defendant is:
·
36 years old
·
Have not been able to participate in the labour
market at all since 2009 and will have a limited earning capacity for
the immediate
future until she has gained work experience or
supplemented her qualifications;
·
Was during the existence of the marriage
completely financially dependent on the Plaintiff;
·
Forfeited her own professional career to build a
life with the Plaintiff;
·
Was introduced by the Plaintiff to a very high
living standard;
·
Sold her only immovable asset, depleted her
savings and sold her horses to pay for legal costs occasioned by the
trial and to supplement
the maintenance paid to her;
·
Will be employed for the immediate future by her
father and will earn E1300 per month;
·
Is provided with accommodation by her father;
·
Will have the benefit of a medical aid once she
is employed.
[121]
No evidence was led by or on behalf of the defendant pertaining to
the extent of her maintenance requirements. It was argued
in closing
by counsel on her behalf that the defendant was not able to determine
her actual financial need since she must relocate
and have no recent
knowledge of the living costs in Buchbach, Germany. It was argued on
behalf of the plaintiff that the defendant
did not place sufficient
information before the court and that her claim for maintenance
should be dismissed.
[122] Evidence led shows that the
plaintiff:
·
Is employed by Kaizer Chiefs (Pty) Ltd. He
currently earns a nett salary of R60 000,00 per month;
·
His income is supplement by random contributions
from his mother;
·
He resides in luxurious accommodation provided by
his father.
[123]
When determining maintenance according to the principles set out in
section 7
of the
Divorce Act, No 70 of 1979
, the court is not
quantifying a claim akin to a delictual damages claim. Although the
defendant’s actual living expenses
would indicate the extent of
her actual financial needs and obligations, the fact that she has to
date been completely financial
dependant on the plaintiff will not
change overnight only because the parties are now divorced. The need
to be maintained is undisputed,
even though the extent of the need is
not quantified.
[124]
Although the defendant will be employed by her father when she
relocates she will need some time to settle and assist the
minor
children with the transition. If she remained in South Africa under a
relative’s visa she would not have been able
to obtain
employment at all. The plaintiff would, in the circumstances, have
been responsible for the full extent of the defendant’s

financial care, inclusive of having to provide for accommodation. He
is not prejudiced by the court considering the maintenance
claim in
these circumstances.
[125]
In light of the fact that the joint estate must still be divided, the
division of the estate in itself might change the financial

circumstances of the parties and the maintenance order will in all
possibility be revisited.
[126] In light of the circumstances of
the case I find that the plaintiff is obliged pay rehabilitative
maintenance to the defendant.
Child maintenance
[127]
It is trite that parents are obliged to maintain their minor
children.
[128]
No maintenance order that a court makes is cast in stone, and it can
be amended if there is any change in the circumstances
of the
affected children or the parents themselves.
[129]
Due to the fact that the defendant is not able at the moment to
provide exact numbers pertaining to the maintenance needs
of the
minor children, I consider the existent maintenance order as the
basis for my ruling, since it is trite that the circumstances
and the
law require the plaintiff to contribute to his children’s
maintenance.
[130] I accordingly find that the
plaintiff shall pay maintenance to the defendant in respect of the
children T. M., born […]
June 2011 and K. M., born […]
August 2014, until they are self-supporting.
Ancillary aspects and rulings
[131] In her heads of argument
plaintiff’s counsel goes to length to indicate why I need to
view the defendant’s evidence
with circumspection. In contrast,
she argues that the plaintiff ‘
impressed as truthful,
earnest, reliable
and willing to make concessions where
reasonably necessary.’
She consequently submits that I must
accept the plaintiff’s evidence and find him to be a truthful
and reliable witness,
while considering the defendant’s
evidence with caution.
[131.1] I will not
engage in a comprehensive discussion addressing each of the reasons
listed by counsel. I am of the view that
the record shows that both
parties were so invested in their respective cases that both tended
at times to exaggerate certain facts
and underplay others. Both at
times, attempted to paint themselves in a favourable light and to
discredit the other. Both interpreted
certain events from their own
perspectives, and gave evidence according to their perspectives. Both
at times were evasive.
[131.2] However, I
need to deal with Ms. de Wet’s argument as captured in
paragraph 42 of the heads of argument. Here she
states: ‘
Cathrin
is prone to making sweeping statements in absence of any objective
evidence by way of example, in cross examination
she,
for the first time,
alleged
that during the time that the children are in Kaizer’s care he
was leaving them with either his mother, his girlfriend,
or the
gardener 50% of the time.’
(My
emphasis). This submission is factually incorrect. The claim was
already made for the first time in paragraph 37 of the defendant’s

plea that ‘…
the defendant
(clearly and error and should read plaintiff)
indeed
“farms” the minor children out to his extended family
when he has a rare opportunity of spending time with them,
instead of
providing same himself”,
and
repeated in paragraph 6.2.11 of the defendant’s counterclaim.
[132] All rulings pertaining to the
admissibility or inadmissibility of evidence were done by considering
the relevance of the proposed
evidence, whether it would take the
matter any further, whether it would prejudice or be unfair to a
specific party if the evidence
was allowed, and whether the proposed
evidence would provide me with a specific perspective that I needed
in coming to a decision
in this matter.
Costs
[133]
Costs generally follow suit, but the court has a wide discretion in
this regard.
[134]
I take into consideration that the defendant was successful with her
counterclaim; and that the plaintiff finds himself in
a substantially
better financial position. Despite being married in community of
property the defendant had to make personal sacrifices
to fund her
legal costs, she,
inter
alia,
testified that she had to sell her horses.
[47]
I also take into consideration that the plaintiff’s summons
contained allegations directed at the defendant’s suitability

and ability to act as the minor children’s caregiver. There is
no reason why costs should not follow suit in these circumstances.
ORDER:
IT IS THUS ORDERED THAT:
1.
The marriage between the plaintiff and the
defendant (“the parties”) is hereby dissolved;
2.
The joint estate of the parties (“the joint
estate”) shall be divided:
2.1.
The estate to be divided estate shall include any
and
all pension and/or retirement annuity funds as
contemplated in Section 1 of the Divorce Act 70 of 1979 ("the
Divorce Act&rdquo
;) held by the plaintiff.
2.2.
In
the event of the parties being unable
within a period of three months from date of divorce, to give effect
to an equitable and equal
division and distribution of the joint
estate on terms and conditions suitable to them, a liquidator shall
be appointed, in the
manner set out below, in order to attend to the
division and distribution of the joint estate ln accordance with the
powers contained
in "A" hereto.
2.3.
The liquidator shall be selected and appointed by the parties,
failing which within one month of expiry of the period referred
to in
paragraph [2.2] above, the liquidator shall be appointed by the
President of the time being of the South African Institute
of
Chartered Accountants.
3.
The defendant is
given leave to relocate the minor children outside the Republic of
South Africa to Germany.
3.1.
The defendant shall confirm by whatsapp or e-mail
or any other form of communication the address where she and the
minor children
shall be residing and her telephone and e-mail contact
details by no later than 72 hours from their arrival in Germany.
4.
Primary care of
the minor children and the minor children's primary place of
residence shall vest with
the defendant, subject to the
plaintiff being entitled to reasonable contact with the minor
children, subject to the minor children's
educational, religious,
social, cultural and extramural activities in accordance with
paragraph [113] above.
5.
The parties shall retain full parental
rights and responsibilities in respect of the minor children as
envisaged by
section 18(2)
of the
Children's Act, 38 of 2005
, save
that the defendant shall not require the consent of the plaintiff, in
respect of the minor children T.- M., born [...] June
2011 and K.
M., born [...] August 2014:
5.1.
for the children's departure or removal
from the Republic; and
5.2.
for any application for a passport or the
renewal of any passport.
6.
The defendant is to inform the plaintiff
timeously, with at least 3 calendar days’ notice, as to when
she and the children
will travel to Germany.
7.
The plaintiff and his family shall say
their farewells 24 hours before the defendant and the children leave
for Germany.
7.1.
Neither the plaintiff nor any member of his
extended family may accompany the children to the airport or be seen
by the children
at the airport. The defendant shall provide them with
the necessary opportunity to say goodbye to the children in the 24
hours
preceding the flight.
7.2.
The plaintiff may exercise telephonic
contact on the days preceding the children’s departure.
8.
Until the defendant and the children
relocate the plaintiff is entitled to exercise the following contact:
8.1.
On weekends sleep-over contact with the
minor children on Friday and Saturday nights, the children can be
collected Friday’s
at 16h00 and shall be returned to the
defendant by Sunday’s at 16h00;
8.2.
Mid-week contact on Wednesdays between 8h00
and 19h00, subject to the children’s educational, and
extra-mural activities.
The plaintiff may transport the children on
Wednesdays to and from their activities. This is subject to the
provision in 7,
supra;
8.3.
Daily telephonic contact between 7h00
-9h00, and 17h00-19h00.
9.
Ms Clark of Clark’s Attorneys, or her
nominee, is ordered to release the passports of the children to the
defendant, or her
nominee with immediate effect.
10.
The plaintiff shall pay maintenance to the
defendant in respect of T.- M., born [...] June 2011 and K.  M.,
born [...] August
2014 until they are self-supporting as follows:
10.1.
An amount of E600 (six hundred euros) per
child per month, free of bank or transactional charges, (in order
that the full maintenance
amount is available in the defendant’s
nominated account) which amount is to be paid on the first day of
each month and is
to increase annually at the rate in the Consumer
Price Index, or equivalent index applicable in Germany on the 1
st
day of February of each consecutive year. The first payment is to
commence on 1 February 2018;
10.2.
All the costs
associated with the minor children’s schooling including
nursery school, kindergarten, crèche and pre-school
fees and
associated costs for the account of parents and not covered by the
state authorities in Germany;
10.3.
All excess medical
expenses not covered by the medical insurance scheme in respect of
the children; including, but not limited to,
hospital, dental,
surgical, ophthalmic, optometric (incorporating the cost of
prescribed spectacles and contact lenses), orthodontic,
psychiatric,
psychological, therapeutic intervention (including speech therapy,
occupational therapy, physiotherapy and psychotherapy),
prescribed
orthopaedic and pharmaceutical expenses;
10.4.
If the parties agree
that the children attend a private school the costs of schooling in
the event that the minor children attend
a private school in German;
10.5.
All the children’s
school related expenses, not covered by the state authorities in
Germany including but not limited to extra
mural and sporting
activities, including clothing and equipment in relation thereto,
books and stationery, school uniforms, school
functions, tours and
excursions, and requisite computer equipment,
10.6.
In the event of the
defendant paying any of the amounts referred to above, for which the
plaintiff is responsible, the plaintiff
shall reimburse the
defendant, free from any bank or transactional charges, within 7
(seven) calendar days from receiving the proof
of payment or invoice
by e-mail or whatsapp or any other form of communication.
10.7.
The costs of both minor
children's tertiary education, in the event that they demonstrate an
aptitude for same, whether at a technical
training college,
university, technikon, computer, secretarial, art school or any other
like educational institution, at a location
selected by the minor
children in consultation with the plaintiff at the time, as well as
all related expenses associated therewith,
including residence and/or
accommodation expenses and all general living expenses whilst the
minor/dependent children remain enrolled
at any such educational
institution, as well as all other related expenses including but not
limited to stationery, extra mural
and sporting equipment, clothing
and transport including the provision of a motor vehicle and petrol.
11.
Plaintiff shall pay rehabilitative
maintenance in respect of the defendant in an amount of E1000 (one
thousand euros), free from
any bank or transactional charges, (in
order that the full maintenance amount is available in the
defendant’s nominated account)
per month.
11.1.
The rehabilitative maintenance is payable
for a period of four years from 1 February 2018, or until the
defendant’s death,
or remarriage, whichever occurs first.
11.2.
The maintenance amount is to be paid on the
first day of each month and is to increase annually at the rate in
the Consumer Price
Index, or equivalent index applicable in Germany
on the 1ste day of February for each consecutive year;
12.
Defendant shall inform the plaintiff by
e-mail or whatsapp or any other form of communication as soon as
practical of the crèche,
playgroup and/or school that the
minor children shall be attending in Germany;
12.1The
defendant shall further provide the plaintiff with the contact
details of the school in order for the plaintiff to contact
the
relevant school pertaining to the minor children’s progress
and/or school reports.
13.
Defendant shall inform the plaintiff by
e-mail or whatsapp or any other form of communication as soon as
practical of any extra
mural and/or sporting activities that the
minor children shall be attending in Germany;
13.1The
defendant shall further provide the plaintiff with the contact
details of the relevant person, facility and/or institution
where the
minor children are attending such activities in order for the
plaintiff to contact them regarding the minor children’s

progress and/or participation.
14.
Defendant shall inform the plaintiff by
e-mail or whatsapp or any other form of communication as soon as
practical of any medical
and/or therapeutic intervention, assistance
and/or treatment that the minor children receive in Germany;
14.1The
defendant shall further provide the plaintiff with the contact
details of the relevant person, facility, practitioner and/or

institution where the minor children are receiving such therapeutic
intervention, assistance and/or treatment in order for the
plaintiff
to contact them in order to obtain information regarding the minor
children’s progress, treatment and/or prognoses.
15.
Plaintiff is to pay defendant’s legal
costs on a party and party scale, such costs to include all costs
reserved to date,
the costs consequent upon the employment of two
counsel, and the disbursement, expenses, qualifying fees and
attendance fees of
the expert witnesses, Dr. Kruger and Dr. Benn.
______________________
E VAN DER SCHYFF
Acting Judge of the High Court
Plaintiff’s Attorneys
Steve Merchak Attorney
1
st
Floor, 3 Gwen Lane
SANDTON
Adv. A de Wet
Defendant’s Attorneys
Darryl Furman & Associates
Illovo Law Chambers
4 Fricker Road
ILLOVO
Adv. J Peter (SC)
[1]
Section
6(1)
of the
Divorce Act, No 70 of 1979
, prescribes that a court may
only grant a decree of divorce if the court is satisfied that
satisfactory provisions are made or
contemplated with regard to the
welfare of any minor child, or that the provisions made or
contemplated are the best that can
be effected in the circumstance.
Section 6(3) of the Act provides that a court, when granting a
decree of divorce, may in regard
to maintenance, or custody or
guardianship of, or access to, a minor child make any order which it
may deem fit. It goes without
saying that this wide discretion must
be exercised judicially and in accordance with the principles of the
law.
Section
1(2) of the Children’s Act, No. 38 of 2005, determines that
‘
in
addition to the meaning assigned to the terms “custody”
and “access” in any law, and the common law,
the terms
“custody” and “access” in any law must be
construed also to mean “care” and “contact”

as defined in this Act.’
[2]
See paragraph [14] below.
[3]
The defendant testified that she did not consult Mr. Chris Watters
as proposed by plaintiff,
inter
alia,
because she obtained
her own independent advice.
[4]
At the time of writing this judgment I was not privy to what
happened on 18 January 2018 pertaining to the charges.
[5]
She never used any formula to feed the baby.
[6]
Plaintiff’s counsel contended at one stage that a negative
inference should be drawn pertaining to the defendant’s

emotional state on the fact that she developed the depression while
she was not subjected to stressful living conditions. It
should be
considered, however, that the evidence before the court, provided by
the plaintiff, is that the defendant, was devastated
after her
miscarriage, and that she fell pregnant with T. not long thereafter.
[7]
The evidence indicate that the defendant’s mother also
assisted the parties but the extent of her involvement was not a

contentious aspect during the trial.
[8]
Transcript p 193 15-20.
[9]
Except for admitting that there was an instance that both parties
used illegal substances, the plaintiff denied that he engaged
in
substance abuse or need therapy in this regard. The defendant
persisted in her view that this was a concern to her. This is
not a
factor that I considered in coming to my conclusion since there was
no conclusive evidence in this regard before me.
[10]
Her evidence indicates that she,
inter
alia,
considered the
children too young to be sleeping away from her and she objected to
the disruption of pre-planned schedules.
[11]
Although there are mutual accusations of physical abuse the evidence
lead during the trial indicates only one instance where
the
defendant grabbed the back of the plaintiff’s shirt in an
attempt to prevent him from taking the minor child T. to
school.
This is the only evidence led of an incident in which the plaintiff
felt that the defendant physically abused him. The
defendant however
testified of numerous occasions where she has been bumped, kicked on
the shin, and elbowed. From the evidence
it is probable that some of
these instances of manhandling occurred because the defendant tried
to prevent the plaintiff from
removing a child from the matrimonial
home at whim without prior arrangement. The defendant however also
testified of another
instance where she was abused where a family
member intervened and it was not stated to her during
cross-examination that the
allegations of continued abuse or
manhandling were fabrications on her part.
[12]
The
recorder of the video would have been in the position to manipulate
his or her own conduct because he or she was aware of
the fact that
an incident was being recorded.
[13]
I noted both parties’ fear that the other party would through
their contacts be able to prevent the other party to enter
Germany
or South Africa in future, although neither party placed conclusive
evidence of the prospects of this actually happening
before me.
[14]
See also
inter alia
Shawin v Laufer
1968 (4) SA 657
(A) at 662 G- 663C;
B
v S
1995 (3) SA 571
(A);
T
v M
1997 (1) SA 54 (A).
[15]
(31187/08)
[2008] ZAGPGC 258 (21 August 2008) para [9].
[16]
Section 28(2) of the Constitution, 1996.
[17]
S v M (Centre for Child Law
as Amicus Curiae)
[2007] ZACC 18
;
2008 (3)
SA 232
(CC) para [22].
[18]
Minister
of Welfare and Population Development v Fitzpatrick and
Others
[2000] ZACC 6
;
2000 (3) SA 422
(CC) at para
[18]
;
Jackson
v Jackson
2002 (2) SA 303
(SCA)
318H.
[19]
Note 17, supra, para [25].
[20]
S 6(1)
of the
Divorce Act, 70 of 1979
;
R
and Another v M
2016 (3)
SA 417
(GJ) paras [16], [18], [28].
[21]
See also
Jooste v Botha
2000 (2) SA 199
(T) 210C-E.
[22]
LW v DM, supra,
para
[17].
[23]
Boyd MT
The determinant’s
of the child’s best interests in relocation disputes
,
2015, Mini-thesis submitted in partial fulfilment of the
requirements for the degree LLM in Children’s Rights,
University
of the Western Cape, 31.
[24]
Boshier P ‘Have the Judges been missing the point and allowing
relocation too readily?’ (2010) 1.2
Journal
of Family Law and Practice
,
10.
[25]
1994 (3) SA
201 (CPD).
[26]
LW v DB, supra,
paras
[63]-[83].
[27]
Potgieter v Potgieter [2007] JOL 19597 (SCA).
[28]
GCH v GNB
(35322/2012)
[2012] ZAGPHC 218
para [26];
F
v F, supra
, para [13];
Jackson v Jackson
2002 (2) SA 303
(SCA) 318F;
B
v M
2006 (9) BCLR 1034
(W)
para [41];
Godbeer v
Godbeer
2000 (3) SA 976
WLD 981I-982C – ‘
The
applicant must now fend for herself in the world and must perforce
have the freedom to make such choices as she considers
best for her
and her family.’
[29]
Baloyi v Baloyi
(6208/2014) [2015] ZAGPPHC 728 (16 October 2015).
[30]
This view
was reiterated in Van
Pletzen
v Van Pletzen
1998 (4) SA 95
(O) at 101 B-D/E when the court held 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
[31]
Dr. Kruger testified that the young K. demanded to be breastfed when
he was returned to the defendant after a visit to the plaintiff.
[32]
She
inter alia
testified
how she adjusted her approach after being given guidelines by a play
therapist.
[33]
Dr. Strous stated in his report p63 that ‘
special
care should be taken to ensure predictable routines’
,
this emphasises children’s need for structure to attain a
sense of stability.
[34]
The evidence is again indicative of the parties’ mutual
obstructive approach during the third phase of their relationship

and the advent of the fourth. Evidence was lead that the defendant
requested the plaintiff early in 2016 to cooperate with the

appointment of a parenting co-ordinator. He refused. To accuse the
defendant later of obstructive behaviour when she does not
react to
requests of the same nature, is like the pot calling the kettle
black. The defendant explained her hesitance to react
and stated
that she did not trust the plaintiff because what he said was not
reflected in his actions.
[35]
(1408/2009)
[2009] ZAECPHC 48.
[36]
The defendant’s evidence is corroborated by Mrs. Anderson. She
also kept a calendar and,
inter
alia
noted the frequency
of the plaintiff’s contact with the children thereon. This was
presented in evidence.
[37]
The only
discrepancy between Dr. Strous and Dr. Kruger’s reports is
that Dr. Strous states in his report that he has been
told that T.
raised the issue of his mother going to Germany, not the plaintiff.
[38]
See Ekanem
Okon
Towards
defining the ‘right to family’ for the African child
(2012) 12 African
Human Rights Journal 373-393.
[39]
The defendant was concerned because of the children’s apparent
‘fear’ for their paternal grandmother. It has
been
alleged that the grandmother spanked T. at least on one occasion. I
accept that spanking is a controversial issue and grandparents

should respect parents’ opinions in this regard. The mere fact
that the grandmother spanked the child on occasion is however
not a
factor that I deem negative or akin to child abuse. I will also
accept that if a child is not spanked at all by his parents,
that he
will have a healthy respect for his grandmother if it is known that
she spanks unruly children.
[40]
Section
10
of the
Children's Act provides
: "Every child that is of such
an age, maturity and stage of development as to be able to
participate in any matter concerning
the child has the right to
participate in an appropriate way and views expressed by the child
must be given due consideration".
I am aware that the Court held in
B
v B
[2015]
ZAGPPHC 1014 (27 November 2015) at para [27]: ‘
It
is evident that the child's wishes are not the primary consideration
or at all decisive in determining his or her best interests.
The
court must only give "due consideration" to whatever views
the child expresses. It does not require deference to
the child's
expressed wishes: the duty of the court is to establish what is best
for the child, and this may require the court
to reach a decision
that is different from what the child wants. The child's wishes must
however be ascertained and considered.
In the current circumstances the children are too young.
[41]
In cases
where one parent relocates, contact between the children and the
non-primary caregiver would be restricted, this would/could
impact
on the bond shared between the child and that parent. In
CG
v NG
2012 JDR 1795 (GNP) p 21 the court held that contact with the
non-primary caregiver could be maintained through electronic methods

of communication such as Twitter, Skype and Webcam. (One can also
think of Facetime in this regard). See also
HS
v WS
2012 JDR 1066 (GNP).  Short visits that are rendered
impractical due to the distance between non-primary caregivers and

their children can be substituted with generous block visits during
school holidays -
Van
Rooyen v Van Rooyen
1999 (4) SA 435
(C) at 441-442.
[42]
The only
acknowledgment in Dr. Strous report of an affective relocation is
the recommendation that ‘
If
Cathrin chooses not to make such application and relocate instead, I
would recommend the next best (but nevertheless undesirable)
option
in the circumstances, which would be for the children to remain with
their father in South Africa.’
[43]
One of the aspects on which Dr. Kruger was criticised by plaintiff’s
counsel, is that she accepted T.’s version when
he told her
that K. is crying at night when they sleep at the plaintiff’s
house. I noted when working through the respective
expert witnesses’
reports again that Dr. Strous mentioned in his report on p62
‘
Sometimes when they
are at their father, K. asks to sleep at their mother, and sometimes
he does not. K. no longer cries as much
as he used to when he wanted
to return to his mother’.
[44]
I am not of the view that the Family Advocate misdirected herself as
to the factual correctness of any statement made. Her report
must be
read as a whole. Adv. Maikoo also testified that she did not engage
in any conversation with Ms. Pearce who accompanied
the defendant to
the interview.
[45]
If the children are on a visit or excursion to an area where there
is no telephone or internet connection the fact that they
will not
be able to contact a parent during that excursion will not be
regarded as contempt of court.
[46]
M v M
(A112/10)
[2011] ZAWCHC 28
(25 February 2011).
[47]
In his evidence in chief plaintiff testified that the defendant’s
horses ‘
were like her
family.’