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2024
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[2024] ZAFSHC 74
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G.T v J.J.T (5617/2023) [2024] ZAFSHC 74 (29 February 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
NO
Of
Interest to other Judges: NO
Circulate
to Magistrates: NO
Case
no: 5617/2023
In
the matter between:
G[…]
T[…]
Applicant
and
J[…]
J[…] T[…]
Respondent
CORAM:
MTHIMUNYE, AJ
HEARD
ON:
30 NOVEMBER
2023
DELIVERED
ON:
29 FEBRUARY 2024
[1]
This is a Rule 43 application in terms of which the applicant, who is
the plaintiff in the main divorce action seeks,
pendente lite,
the following orders against the respondent who is the defendant in
the main divorce action:
(a)
The
parental rights and responsibilities, as is contemplated in section
18(2) of the Children’s Act 38 of 2005, as well as
the minor
children’s primary place of residence to be awarded to the
applicant, subject to:
(i)
The Respondent’s right of reasonable access at all
reasonable times; and the Respondent’s right to have the minor
children
with him for two weekends per month, to be exercised under
the supervision of the parental grandparents at their primary place
of residence, until the younger one reaches the age of 5.
(ii)
Telephonic contact on Mondays, Wednesdays and Fridays between
18:00 and 19:00.
(b)
The
Respondent be ordered to retain the Applicant and the minor children
as beneficiaries on his medical aid scheme better known
and described
as Discovery Classic Delta Saver or similar medical aid and further
that the Respondent is ordered to pay monthly
instalments thereof.
(c)
The Respondent be ordered to pay the School Fees and / or
Crèche Fees and all reasonable school related expenses of the
minor
children.
(d)
The
Respondent is ordered to pay the monthly insurance premiums in
respect of the Applicant’s motor vehicle.
(e)
The
Respondent to pay one month’s rental deposit to the Applicant
within a period of five days after having been notified
to do so by
the Applicant.
(f)
The Respondent be ordered to make a once-off payment to the
Applicant the amount of R5 500.00 to enable herself to purchase
a dish washing machine within a period of seven (7) days from date of
the Order granted by honourable court.
(g)
The
Respondent be ordered to make a once-off payment to the applicant the
amount of R6 000.00 to enable herself to pay for
the relocation
costs within a period of seven (7) days after having been notified to
do so by the Applicant.
(h)
The
Respondent to pay maintenance to the Applicant in the amount of R4
500.00 per month per child.
(i)
The Respondent be ordered to pay maintenance to the Applicant,
in her personal capacity, in the amount of R 8 000.00 per month.
(j)
The Respondent be ordered to make a contribution towards the
applicant’s legal costs in the amount of R15 000.00.
(k)
The Respondent be ordered to pay the costs of this application
alternatively that the costs be costs in the main action.
[2]
Two minor girl children were born of the marriage, the first-born on
[…] M[…] 2019 and the last born
on […] F[…]
2023. Both are currently residing with the applicant and the
respondent currently exercises restricted
contact with the children.
The applicant seeks an order in terms of which the respondent would
have restricted and supervised visits
due to the respondent’s
alleged abuse of alcohol. For this reason, the respondent requested
the Family Advocate to conduct
an inquiry as to the reasons why the
applicant would seek to restrict the respondent’s contact with
the minor children.
[3]
Counsel for the applicant submitted further that since the
respondent’s live-in girlfriend also has young
children who
visit them from time to time, the house where the respondent lives
gets crowded when both sets of children are there.
Counsel for the
respondent submitted that to address that concern, the respondent can
arrange for the children not to visit at
the same time i.e. one
weekend will be for the children of his girlfriend and the other for
his children who are the subject of
this dispute. Further, it was
contended that the applicant had alleged no abuse to the children
when they are with the respondent
and therefore it is unreasonable to
subject the respondent to supervised visits.
[4]
To demonstrate that the respondent abuses alcohol, the court was
taken through several expenditure items on the
respondent’s
bank statement depicting payments to Spar Tops (the Spar alcohol
outlet) and Stuck in the Mud, which the applicant’s
Counsel
averred is a pub that sells alcohol. The respondent did not deny that
he drinks alcohol occasionally but denied that he
is addicted to
alcohol and submitted that Stuck in the Mud is not only an alcohol
outlet but also a diner where he and his partner
usually go to for a
meal.
[5]
At the hearing of this matter, the report of the Family Advocate was
not yet finalised. It was subsequently provided
to this court on 12
February 2024 and I now turn to discuss the report. The
recommendation of the Family Advocate was that the
court should
consider the recommendation made by the Family Counsellor, Elizabeth
Maria Catherina van der Westhuizen, whose report
was attached to that
of the Family Advocate. Ms Van der Westhuizen conducted an intensive
inquiry which included interviews with
all relevant stakeholders as
articulated in her report. She stated that she could not find any
proof of the allegations that the
respondent abuses alcohol. Further,
although both parents’ accommodations are small, she opined
that they are adequately
furnished and have enough space to provide
for the children’s needs. In paragraph 11:9 of her report, she
stated:
“
11.9.
It is in the best interests of the children to be able to have
regular and
structured contact with the father, which enables them to
build, strengthen and maintain a secure attachment with the father.
11.9.1
No reasons could be found during the investigation that the father
need to exercise
his contact with J[…] and L[…]under
supervision.
…
11.9.6.
The undersigned is of the professional opinion that both the children
can start with
phased sleep over contact at the father’s
residence.”
[6]
In matters involving children, the best interests of the children are
paramount and the court, as the upper guardian
of all minors, is
enjoined to safeguard those interests.
Section 28(2) of the
Constitution of the Republic of South Africa Act 108 of 1996
states that “
a child’s best interests are of paramount
importance in every matter concerning the child”.
This is
also enshrined in
Section 9 of the
Children’s Act 38
of 2005
, which provides that: “
in all matters concerning
the care, protection and well-being of a child, the standard that the
child’s best interests are
of paramount importance, must be
applied”.
[7]
Section
7 of the Children’s Act
sets out facts
which
must
be considered when the best interests of a child
standard is applied. These are:
“
(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 chid 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.”
[8]
Taking into consideration the submissions made by the respondent to
this court in rebuttal of the applicant’s
averments; the
evidence before this court and the contents of the thorough report of
the Family Counsellor, which report was as
a result of a vigorous
investigation, I find no reason to reject the recommendations of the
Family Counsellor as encapsulated in
the Family Advocate’s
report. As such I am persuaded that the prayers sought by the
applicant in respect of the parental
responsibilities and the
respondent’s supervised access to the children must fail.
[9]
I now turn to deal with the financial demands made by the applicant
as stated in para [1] above. I do not deem it
necessary to repeat
these one by one but will focus on the arguments and concessions made
during the hearing of the matter. When
regard was had to the
respondent’s means and the reasonableness of the applicant’s
demands during submissions, the
following concessions and amendments
were made by the applicant to the claimed figures:
9.1
The amount claimed in respect of maintenance of the motor vehicle
was
amended down from R5 000.00 to R500.00.
9.2
It was conceded that the applicant is not paying for the motor
vehicle
as it was paid off.
9.3
It was further conceded that the R15 000.00 contribution sought
by the applicant for legal costs is far above what the court could
grant given the respondent’s means. Instead Counsel for
the
applicant asked for R8 000 to R10 000.00 contribution to
legal costs.
[10]
In response, the respondent submitted to this court and it was
undisputed evidence
that he has been contributing and continues to
contribute the following to the applicant and the minor children:
10.1. The
School Fees of both children i.e. R2 300 to K[…] K[…]
in respect of J[…] and R2 300.00
to K[…] A[…]
in respect of L[…] per month.
10.2. An
amount of R 5 000.00 towards maintenance for the applicant and the
minor children.
10.3. Both
minor children and the applicant are on the respondent’s
medical aid, which he pays for, together with
all extra medical
expenses every month.
[11]
Having considered the submissions made, the evidence before this
court, the contributions that the respondent
currently is making and
continues to do, as well as the means of both parties, I am persuaded
that the recommendations of the Family
Counsellor as encapsulated in
the report of the Family Advocate be adopted herein. Further, that
some of the applicant’s
demands are unreasonable.
Consequently, I make the
following
Order,
pendente lite
:
1.
The parental rights and responsibilities,
as contemplated in section
18(2) of the Children’s Act 38 of 2005 are awarded to both
parents.
2.
The primary residence of the minor child is
awarded to the applicant.
3.
The respondent will exercise unsupervised
contact the minor children
in the following manner:
3.1.
During the first month from the date of this Order, he will take the
children for a day outing
every alternative weekend on Saturdays at
13:00 to 18:00 and Sundays from 09:00 to 17:00.
3.2.
From the second month until the end of the third month from the date
hereof, he will take the
children for a sleepover at his residence
from Saturday at 09:00 and return them on Sunday at 17:00, every
alternative weekend.
3.2.
From the fourth month from fourth month from the date hereof, he will
fetch the children from Friday
at 18:00 and return them on Sunday at
17:00, every alternative weekend.
3.4.
In the event that Father’s Day does not coincide with his
normal contact weekend, he shall
have contact with the children from
09:00 to 17:00.
3.5.
Telephone or video call or recording contact with the children on
Mondays, Wednesdays and Fridays
between 18:00 and 19:00.
4.
The respondent to retain the applicant and
the minor children as
beneficiaries on his medical aid scheme better known, and described,
as Discovery Classic Delta Saver or
similar medical aid and further
that the respondent is ordered to pay monthly instalments thereof.
5.
The respondent to continue paying the school
fees for the minor
children at K[…] K[…] and K[…] A[…].
6.
The respondent to continue contributing an
amount of R5 000.00
to the respondent as both maintenance towards her and the minor
children. For purposes of clarity, the
maintenance breakdown is as
follows:
6.1. R1
500.00 as maintenance for the minor child J[…] T[…].
6.2.
R1 500.00 as maintenance for the minor child L[…] T[…].
6.3.
R2 000.00 as maintenance for the applicant.
7.
Costs to be costs in the divorce action.
D.P.
MTHIMUNYE
Appearances:
For
the Applicant
Adv C
Coetzer
Chambers,
Bloemfontein
Instructed
by
Lovius
Block Attorneys
Bloemfontein
For
the Respondent:
Adv N
Van Der Sandt
Chambers,
Bloemfontein
Instructed
by
Webbers
Attorneys
Bloemfontein