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[2022] ZALMPPHC 1
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R.F.K v M.D.K (3098/2020) [2022] ZALMPPHC 1 (10 January 2022)
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
LIMPOPO
DIVISION, POLOKWANE
CASE
NO: 3098/2020
REPORTABLE: YES/NO
OF
INTEREST TO OTHER JUDGES: YES/NO
REVISED
In
the matter between:
R[....]
F[....] K[…]
PLAINTIFF
And
M[....]
D[....] K[...]
DEFENDANT
JUDGEMENT
KGANYAGO
J
[1]
The plaintiff and defendant were married to each other in community
of property. The plaintiff has instituted a
divorce action against
the defendant seeking orders that a decree of divorce be granted;
equal division of the joint estate; 50%
of each party’s pension
interest; that parental responsibilities and rights with regard to
the minor children be awarded
to the plaintiff; both parties retain
full parental rights and responsibilities with regard to the
guardianship of the minor children;
the parental rights and
responsibilities with regard to reasonable contact with the minor
children be awarded to the plaintiff,
with the parties alternating
equally during public holidays and school holidays, and the defendant
having reasonable telephonic
and physical contact at all reasonable
times.
[2]
The defendant is defending the plaintiff’s action and has filed
a counterclaim. In his counterclaim the defendant
is seeking orders
that a decree of divorce be granted; equal division of the joint
estate; that both parties retain full parental
responsibilities and
rights in respect of the minor children born of the marriage between
the parties; that primary residence of
the minor children be awarded
to the defendant; that specific parental responsibilities and rights
with regard to the contact of
the minor children be awarded to the
plaintiff; that both parties retain full parental responsibilities
and rights with regard
to the guardianship of the minor children;
that the plaintiff be ordered to pay an amount of R1000.00 per month
per child as maintenance
of the minor children; that the plaintiff
retain the minor children on her medical aid scheme; and that the
Government Employee
Pension Fund be ordered to pay the defendant 50%
of the plaintiff’s pension interest in the said pension fund.
[3]
The plaintiff and the defendant were able to settle all other aspects
of the patrimonial consequences of their marriage,
including
obtaining decree of divorce, except as to who must retain the primary
residence and care of the minor children. The parties’
settlement agreement was reduced to writing and signed by both
parties. By consent between the parties the settlement agreement
was
handed in as an exhibit. The only issue which this court is required
to determine is the primary residence and care of the
minor children.
The parties have agreed that the plaintiff bore the duty to begin.
The parties also agreed that the reports of
MJ Mahlo (family
advocate) and SF Nquadi (family counsellor) be handed in by consent
as evidence without the authors of the two
reports giving oral
evidence in court.
[4]
The plaintiff testified under oath. She testified that she and the
defendant were married to each other in community of
property on 24
th
February 2007. From the said marriage four minor children were born,
a girl who is currently twelve years of age; a boy currently
seven
years of age; and a boy currently five years of age. All the minor
children are currently residing with the defendant through
an interim
order granted in the children’s court.
[5]
The plaintiff is requesting that she be awarded the primary residence
and care of the three minor children, with the defendant
being
awarded specific visiting rights. The plaintiff stated that she and
the defendant have already agreed on the parental responsibilities
of
a party who does not succeed in obtaining primary residence and care
of the minor children. The plaintiff agrees with the findings
and
recommendations of the family advocate and family counsellor.
[6]
The plaintiff testified that she is employed as a police officer,
stationed in Polokwane SAPS, and is working from 7h00
to 16h00
Mondays to Fridays. She was employed by the SAPS during 2005 wherein
she was stationed in Lebowakgomo police station.
During 2008 she was
transferred to Polokwane station, and in 2015 she was transferred to
Musina station. During February 2020,
the defendant assaulted her,
and when she explained her situation to her employer, she was
transferred back to Polokwane station
with effect from March 2020.
[7]
The plaintiff further testified that she is having a good
relationship with their children, and that whilst working in
Musina
she was seeing them every weekend, and will also phone them during
the week. Currently the children are in temporary care
and residence
of the defendant, and she is experiencing communication breakdown
with the children as defendant does not allow them
to talk with her
on the phone that he had bought. She had to buy another phone for the
minor children so that she can be able to
communicate with them.
[8]
According to the plaintiff, when their first born child was born
during 2008, she was stationed in Polokwane working from
7h00 to
16h00, Mondays to Fridays whilst the defendant was working in
Lephalale coming home during month end. From Lephalale, the
defendant
went to work in Mpumalanga and Cape Town until 2011, and coming home
during month end. During this period wherein the
defendant was
working far away from home, she was the one who was taking care of
their first born child with the assistance of
their domestic servant.
That the defendant only came back to work in Polokwane either during
2011 or 2012. The second child was
born on 16
th
June 2014.
[9]
During 2018 she joined a leisure company as a member. Her membership
with that company was allowing her to travel and
also do business
with that company. She was using her membership to travel with her
children. However, due to covid 19, that company
stopped operating
and she had terminated her membership. At the time of termination of
her membership, she was a senior representative
of that company. With
the income she was generating from that company, she was using it to
supplement in the running of the household
needs.
[10]
The plaintiff further testified that she does not have a problem with
her children, and that her children are still young.
The first born
is a girl and is at puberty stage where she is experiencing changes
in her life, and that she needs her (plaintiff)
for advice. That the
first and second born have told her that they wish to stay with her
and that they will visit the defendant.
The last born had told the
plaintiff that he misses her. The family counsellor had visited the
place where she is currently staying.
The plaintiff alleges that she
is temporarily staying at that place until the finalisation of the
divorce, and that she had moved
into that place after she was
assaulted by the defendant.
[11]
According to the plaintiff if she gets primary residence and care of
the minor children, when she is at work the children will
be at
school. She does not intends relocating out of Polokwane, or changing
the children’s current schools. She is working
in Polokwane and
her sister will also be assisting to take care of the children if
they are at home and she is at work. The plaintiff
alleges that the
defendant is short tempered, and that whilst they were still staying
together, the defendant was telling her that
the second and third
born children were not his, and he even wrote her a note asking her
as to who was their father. The plaintiff
stated that she did not
have a problem with the children having contact with the defendant at
the arranged and agreed time.
[12]
The plaintiff was cross examined and she conceded that on 21
st
June 2016 she left the first born child who was eight years old then,
in car unattended and the car burned, but luckily the child
managed
to escape from the car. The plaintiff stated that the car which was
not that old, but burned as a result of an accident,
and even up to
date they do not know what caused the car to burn. Further that she
had parked the car next to the door of her office,
and that it was an
unfortunate incident. The plaintiff conceded that she left their
common home on 28
th
February 2020, and that she did so
after she and the defendant fought for the whole night. She conceded
that on 17
th
July 2020, the children were temporarily
placed in the care of the defendant.
[13]
When the plaintiff was asked whether she once locked the minor
children in her flat, she stated that she only locked the butler
door, and did not close the sliding door, and that she had asked her
neighbour to keep an eye on them whilst she went to drop her
domestic
servant at the rank which was not far from where they stay. She
conceded that this incident happened on 10
th
July 2020
when the defendant came to her flat and found the children in
darkness at about 19h00. She denied that she was not involved
in
assisting the children to do their homework and also not attending
school meetings for children. She denied that she put nude
pictures
of herself on face book depicting herself and another man in a
swimming pool.
[14]
She conceded that the school once complained about a magazine brought
by their first born child to school, but that their child
had being
naughty by taking that magazine from their bedroom. She denied that
the magazine contained nude pictures, but that it
contained people
wearing ladies’ underwear and that they were properly dressed.
When it was put to the plaintiff that the
defendant was the only one
who was taking the children to doctors, the plaintiff stated that the
last born child was once admitted
at Medi-Clinic hospital, and she
was the one who was sleeping with the child at the hospital. That
concluded the evidence of the
plaintiff she closed her case.
[15]
The defendant called Tebogo Anna Mahlatjie as his witness. She
testified that she is the social worker who had complied the
report
for the children’s court during March 2020, which led to
temporary primary residence and care been awarded to the
defendant.
She stated that in her report she had also obtained collateral
information from the neighbours, relatives and teachers
of the minor
children. At the school where the first and second born children were
attending, she checked their performance whilst
they were staying
with both parents, and after separation, and was informed by their
teachers that they have not even noticed that
the minor children have
changed their place of residence.
[16]
However, the teachers raised concerns regarding the first born child
that she was coming to school being untidy and was also
withdrawn,
whilst she used to be a child who was an exemplary at school. Further
that she was not doing her homework, and as a
brilliant learner, they
will give her an opportunity to do so in class. With regard to the
second born, the teachers told the witness
that there was a time when
he was removed from the school, and they therefore could not share
any light regarding him. At the crèche,
the teachers told the
witness that they were concerned about his tidiness, and that his
school bag was no longer packed properly
like it used to be. Further
that the last born child had started to be bully and was also wetting
himself.
[17]
The teachers at the crèche further told the witness that they
only saw the plaintiff once coming to fetch the last born,
and
thereafter, it was the first and second born children who were
fetching the last born child from the crèche. The witness
further stated that she was informed by the teachers at the crèche
that before the change of the arrangement, it was the
defendant who
brought the last born child to the crèche in the morning, and
picking him up in the afternoon. That the neighbours
of the parties
told the witness that they only knew that the plaintiff exists, but
she travels a lot. That most of the time the
children were with the
defendant, and further that the children were close to the defendant,
and they do not doubt that he loves
them. The witness further stated
that the neighbours had told her that the defendant is a responsible
father, and relates well
with his children.
[18]
The witness stated that she did not interview the plaintiff and the
minor children, and that her report was preliminary. The
witness
stated that since it was not a final report, she wanted to be given
an opportunity to interview the plaintiff and the minor
children, but
was never given that opportunity. Further that the family advocate
did not contact her for an interview before he
finalised his report.
[19]
The witness was cross examined, and she conceded that the absence of
the interview of the plaintiff and the minor children
was a huge gap
in her report. The witness conceded that the report of the family
counsellor contains the interviews of both the
plaintiff and the
minor children. The witness also conceded that she did not have a
problem with the findings and recommendation
of the family advocate
and family counsellor.
[20]
The defendant testified under oath and stated that he is employed as
a service manager at Komatsi in Polokwane since 2010.
He works from
7h30 to 15h45 Mondays to Thursdays, and on Fridays is from 7h30 to
15h00. His net salary is R52 000.00 per month.
He is not working on
Saturdays. He does not intend changing employment or place of
residence.
[21]
The house in which he currently stays with the minor children had
three bedrooms, two bathrooms, separate shower, kitchen and
a lounge.
Bedroom one is for the defendant, bedroom two for the first born
child, and bedroom three for the second and third born
children. The
first and second born are schooling at the same school, whilst the
third born is still at the crèche. The
crèche is about
600 metres from the defendant’s workplace, whilst the school
where the first and second born children
are attending is about five
kilometres from the defendant’s workplace. The defendant is the
one who drops the third born
child at the crèche in the
morning and fetches him in the afternoon. The first and second born
children are using a private
transport to and back from school, but
sometimes the defendant takes them to school in the morning.
[22]
The defendant attends church service in Seshego every Sunday with the
minor children if they are with him, as some weekends
they will be
with the plaintiff. During February 2020 he had a confrontation with
the plaintiff, but he did not assault the plaintiff.
However, the
plaintiff had opened an assault case against him, which case is still
pending and has been postponed to 4
th
March 2022. The
plaintiff had also opened a domestic violence case against him which
case has been finalised on 21
st
March 2021 when it was
dismissed.
[23]
The defendant testified that he was awarded interim primary residence
and care of the three minor children by the children’s
court on
17
th
July 2020. On 10
th
July 2020, it was the
weekend in which he was supposed to spent with the minor children as
per the interim order of 1
st
July 2020. The plaintiff did
not bring the children to him at Savannah Mall as agreed. He did send
the plaintiff an SMS, but she
did not respond to it. The defendant
decided to go to the SAPS for them to escort him to the plaintiff’s
flat. They arrived
at the plaintiff flat around 19h00 and found that
the lights in that flat were not switched on. They knocked at the
door and there
was no response. The butler door was locked. He called
his children by their names and that is when the last born child came
to
the window. The first born child then switched on the lights. The
second born child told him that the defendant always locked them
inside the house.
[24]
Whilst they were still at the plaintiff’s flat, a certain lady
from another flat came and phoned the plaintiff. The plaintiff
answered the phone and the police told the plaintiff that they have
come to collect the minor children as per the court order.
The
plaintiff phoned her legal representative who advised her to release
the minor children to the defendant. With regard to the
car that
burned, he was at work when he got a call from a certain lady, who
informed him that his car was burning. When the defendant
arrived at
the scene, he found the plaintiff and the first born child seated
under a tree together with the colleague of the plaintiff.
The car
burned a street behind the plaintiff’s workplace. With regard
to the magazine that the first born child took to school,
it was a
ladies’ magazine that contained ladies’ underwear. The
first born child was ten years old when she took that
magazine.
[25]
With regard to him refusing the minor children from communicating
with the plaintiff, the defendant testified that he was coming
back
from work when he saw the first born child talking on her cell phone.
When the first born child saw him, she ran away into
the garage and
continued talking there. After the first born child finished talking
on the phone, she came to him looking upset,
and told him that the
plaintiff was accusing her of not wanting to talk to her on the phone
that the defendant bought it for her.
The defendant denied bugging
the first born child’s phone, and also denied telling the minor
children what to tell the counsellor.
The defendant stated that he
had never discussed this case with the minor children.
[26]
With regard to the incident of the 27
th
February 2020, the
defendant denies that the first born child had witnessed it.
According to the defendant it was only him and
the plaintiff in the
room, and denies assaulting the plaintiff. The defendant stated that
on that date, he had confronted the plaintiff
about the situation in
the house. That is when the plaintiff took the car keys and ran out
of the house into the street. The defendant
followed the plaintiff
and took the car keys from her, and the plaintiff’s cell phone
fell to the ground. The plaintiff ran
to the neighbour’s house,
and he went to that house to fetch the plaintiff. The neighbours
intervened, and the defendant
and the plaintiff went back to their
house.
[27]
On arrival in their homestead, the plaintiff told him that she did
not feel safe to sleep in that house. The defendant decided
to take
the last born child and went to sleep at his sister’s house.
The defendant stated that there were days on which he
had assaulted
the first born child with a belt for being naughty, but denies
assaulting her on the date stated in the family advocate’s
report. According to the defendant, on the date as stated by the
family advocate, he came from work to collect the first born child
to
go to a saloon. On arrival at home he found the first born child with
her friends in the house. When the first born child saw
him, she hid
her friends from him. The defendant denies that on that date he had
beaten the first born child but stated that he
might have talked to
her harshly. The defendant stated that the last time he might have
beaten the first born child, might have
been either during 2012 or
2013.
[28]
The defendant also denies that the second born child had witnessed
the incident of the 27
th
February 2020, as he was in a
boarding school in Marken. The defendant alleges that it will be in
the best interest of the minor
children if they reside with him. The
defendant had stated that from 2015, he had been staying with the
minor children alone with
the assistance of a domestic servant as the
plaintiff was working in Musina. According to the defendant from 2015
to date, he has
been a primary care giver of the minor children.
Further that he is putting the interest of the minor children first,
and that
he had never gone on vacation without the minor children.
That he had resigned two times from where he used to work in a battle
to be next to his children. He provides stability and security for
his children. He is the one who takes his children to the clinic,
and
had bonded with them. He teaches his children values and also takes
them to church.
[29]
What the children dislike about the defendant is that he does not
like them to go and play and abandon their school work. The
defendant
alleges that it will affect the minor children if they were to move
from where they are currently staying with him. He
sleeps on his bed
with all his children, but now that the first born is growing up, she
had chased them out of her room. He makes
time for his children. The
plaintiff stated that he is having another child from another woman,
and that he met the mother of this
child before he met the plaintiff.
This child was born during 1999, and his mother has passed away
whilst he was eight years old.
He has been taking care of this child
from the beginning.
[30]
The defendant was cross examined and he conceded that he knew that
the plaintiff was working in Musina, and that due to the
plaintiff’s
work commitments, he had to take care of the children. The defendant
also stated that he will allow the children
to express themselves as
to what was in their best interest. The defendant conceded that the
children have made a choice that they
wanted to be with the
plaintiff. The defendant conceded that the choice that the children
have made was influenced by the values
he had installed in them. That
concluded the evidence of the defendant.
[31]
As I have already pointed out paragraph 3 above that the parties have
settled all other aspects of the patrimonial consequences
of their
marriage in community of property, and that the only issue which this
court is called upon to determine is who must retain
the primary
residence and care of the three minor children. It is trite that in
dispute concerning the award of custody of the
minor children, the
test to applied is what is the best interest of the minor children.
The defendant has been awarded interim
primary residence and care of
the minor children by the children’s court on 17
th
July 2020. This court must therefore determine whether that interim
order should be confirmed or varied by awarding the primary
residence
to the plaintiff. Both parties are in agreement that they are both
fit and proper to be awarded the primary residence
and care of their
minor children. Both parties in their settlement agreement have
agreed on the parental responsibilities and rights
over the minor
children.
[32]
In
Stock
v Stock
[1]
Diemont JA said:
“
It has been
said repeatedly by the Courts that where there is dispute concerning
the award of custody of minors there is substantially
one norm to be
applied, namely the predominant interest of the children. The same
norm applies where the dispute relates, not to
the award, but the
variation of a custody order or where application is made to remove
the children out of the jurisdiction of
the Court. The parent who
seeks such relief will be called upon to show good cause, that is he
or she will have to satisfy the
Court on balance of probabilities
that the order made at the time of divorce should be varied. There
are many factors to which
the Court will have regard in determining
whether the welfare of the children calls for such variation. So, for
example, where
there are several children in the family, it may well
be deemed inadvisable to separate the siblings. Then again the Court
will
bear in mind that any variation in the order will have a more
lasting effect on the younger children than it will on the older
children who will become independent sooner and can then make their
own decisions.”
[33]
The order of the 17
th
July 2020 even
though it is an interim relief, is sixteen months old, which is long
enough to have made the minor children to have
settled and adapted to
their current living arrangement. That in my view, should be treated
in the same manner as variation of
custody order. The onus will
therefore be on the plaintiff to satisfy this court on balance of
probabilities why the order of the
children’s court should be
varied. The minor children are already used to a certain standard of
living with the defendant,
which will not be the same if primary
residence and care was to be awarded to the plaintiff. Section 7(1)
of the
Children’s
Act
[2]
(Act) list the factors which should be considered whenever the best
interest of a child standard is to be applied.
[34]
Section 7(1) of the Act provides as follows:
“
Whenever
a provision of this Act requires the best interest of a 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 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 regular basis;
(f) the need of the
child-
(i) to remain in the care
of his or her parent, family and extended family; and
(g) the child’s-
age, maturity and stage
of development;
gender;
background
and;
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;
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
possible, in an environment resembling
as closely as possible
a caring family environment;
the need to protect the
child from any physical or psychological harm that may be caused by-
subjecting
the child to maltreatment, abuse, neglect, exploitation or degration
or exposing the child to violence or exploitation
or other
harmful behaviour; or
exposing
the child to maltreatment, abuse, 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 minimise further legal or administrative proceedings
in relation to the child.”
[35]
In
AB
and Another v Minister of Social Development
[3]
Nkabinde J said:
“
Section 7 deals
with the best interest of the child. Section 7(1) states that, when
the best interest of the child standard is required
by a provision of
the Children’s Act, the standard must be applied and several
factors must be taken into consideration,
where relevant. Moreover,
section 7(1) should be read with section 28(2) of the Constitution.”
[36]
The family advocate and family counsellor have interviewed the
plaintiff, defendant and all the three minor children, and also
made
follow up interviews. The family advocate and family counsellor have
also visited both places of residence of the plaintiff
and the
defendant before compiling their final reports. According to the
reports of both the family advocate and family counsellor,
all
the three minor children’s wishes are to reside with the
plaintiff, and that they will visit the defendant
during school
holidays whom they love very much. The recommendations of both the
family advocate and family counsellor is that
the primary residence
and care of the minor children be awarded to the plaintiff.
[37]
The family counsellor in her report has recorded that
the first born child had told her that the defendant had
told her to
tell the family advocate that she wanted to reside with him, whilst
the plaintiff told her to tell the family advocate
the truth. Further
that the first born child told the family counsellor that she was
afraid to tell the truth as she was
afraid of the defendant,
but that the truth was that she wanted to reside with the plaintiff.
The first born child further told
the family counsellor that she had
witnessed the defendant beating the plaintiff, and also breaking the
plaintiff’s laptop.
The first born child also told the family
counsellor that the defendant does not allow her to bring her
friends to the house,
that one day the defendant found her in company
of her friends in the house and beat her with a belt so
much. The
family counsellor in her report has recorded that
the concluding remarks of the first born child was that the family
counsellor
in her report should not write something that will make
the defendant angry.
[38]
With regard to the second born child, the family
counsellor had recorded that he had told her that he misses his
mother and wishes to go and stay with her, and that he will
visit the defendant during school holidays. Further that the
second born child had told the family counsellor that the defendant
had never assaulted him, but he had witnessed the defendant
assaulting the first born child with a belt, and had also seen the
defendant assaulting the plaintiff, and was afraid that the
defendant
was going to kill the plaintiff. With regard to the last born child
the family counsellor had recorded the he had told
her that he
misses the plaintiff and wishes to go and stay with her.
[39]
According to the report of the family counsellor, the
factors which she had considered in arriving at the conclusion
that
it will be in the best interest of the minor children if the primary
residence and care is awarded to the plaintiff are
(i) the
nature of the personal relationship between the child and the
parents, or any specific parent and the child
and any
other care-giver or person relevant in those circumstances; (ii) the
attitude of the parents, or any specific parent, towards
the child
and the exercise of parental responsibilities and rights in respects
of the child; (iii) 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; and (iv) the child’s age, maturity and stage of
development.
[40]
The family advocate in his report has recorded that from
the information he had received, both the plaintiff and
the defendant
have been in contact with the minor children since their
separation; both parties did not have a meaningful
communication
relating to matters affecting the minor children, but have promised
to improve the communication; both parties described
each other as
having a good relationship with the minor children; that the reasons
submitted by the defendant to seek primary residence
of the minor
children are reasons intended to tarnish and makes the plaintiff
unfit to take care of the minor children,
whilst those reasons
did not qualify that the plaintiff was unfit to take care of the
minor children; and that the parties have
unresolved marital issues,
and that their divorce had clouded their ability to consider
what is in the best
interest of the minor children.
Further that anger and pointing of fingers against each other is the
order of the day within the
lives of the plaintiff and defendant.
[41]
In conclusion, the family advocate has stated that both
parties have demonstrated the ability to can provide a
conducive
environment for the minor children to reside, however the minor
children have expressed their wishes which should
be taken
into account. Further that the minor children were speaking freely
and voluntarily without feeling the pressure of being
couched.
Further that both parties are gainfully employed, and they all have
the required resources to take care of the minor children.
[42]
Section 7(1) of the Act list fourteen factors which must
be taken into consideration where they are relevant,
in determining
the best interest of the child’s standard. Counsel for the
defendant had submitted that in considering
the child’s
best interest, the court must consider all the fourteen factors as
listed in section 7(1) of the
Act in its totality, and
further that the family counsellor’s report is flawed, as she
had considered only four factors in
arriving at her final
conclusion.
[43]
Section 7(1) state that these factors must be taken into
consideration where relevant. It clear that the legislature
never
intended that all the fourteen factors mentioned in the
section to be considered cumulatively. Only those factors
that
are relevant to the case at issue should be considered. In the case
at hand there is no evidence presented that
any of the minor children
is disabled or having chronic illness. Therefore, factor nine and ten
will not be relevant to the case
at hand. The family counsellor had
considered the factors which she viewed to be relevant to the case
she was dealing with. Even
the defendant’s experts witness
conceded that there was nothing wrong with the method and procedure
which the family advocate
and family counsellor had followed in
compiling their reports.
[44]
The family advocate and family counsellor have both
interviewed the plaintiff, defendant, minor children and have
also
visited the places of residence of both parties. In
conclusion, the family advocate has stated that both parties have
demonstrated the ability to can provide a conducive environment for
the minor children, and have also the required resources to
take care
of the minor children as they are both gainfully
employed. In my view, the family advocate and family counsellor
have
produced well balanced reports taking into consideration the factors
which they considered to be relevant to the case at hand.
The same
cannot be said with the report of the expert witness of the
defendant. Her report was one sided
as she did not
interview the plaintiff and the minor children.
[45]
In
Stock v Stock
above, it was held that an
expert witness must be made to understand that he is there to assist
the court, and if he is to be helpful,
must be neutral, and that the
evidence of such a witness is of little value where he, or she, is
partisan and consistently assert
the cause of the party who calls
him. At the time when the defendant’s expert witness testified
before this court, she
did not have had an opportunity
to interview the plaintiff and the minor children. It is
clear that her report at
the children’s court was favouring
only the defendant. In in this court she was still pursuing the
version she presented
in the children’s court which was
one sided. In my view, the report of the defendant’s expert
witness
is not neutral, and is therefore of little value to this
court.
[46]
In terms of section 10 of the Act, depending on the age,
maturity and stage of development as to enable that child
to
participate in any matter concerning that child, has the
right to participate in an appropriate way, and the views
expressed by that child must be given due consideration. All the
minor children have expressed their wishes,
and their wishes
are to stay with the plaintiff. However, the children’s
wishes may not be the only determining factor
as to what is their
best interest under the circumstances. Some of the factors listed
in section 7(1) of the Act which are
relevant to their case must be
taken into consideration.
[47]
As per the report of the family advocate, both parties
are fit and proper to take care of their minor children,
have
demonstrated the ability to can provide a conducive
environment for the children to reside, are gainfully employed
and
have all the required resources to take good care of the minor
children. Both parties’ have almost similar reporting
and
knocking off time in their respective workplaces, and
also works from Mondays to Fridays, and they both work in
Polokwane
nearer to the minor children. According to the family advocate’s
report, it would not be fair and
not be in the best
interest of the minor children if their wishes are not taken into
account. As I have already pointed out in
paragraph 46 above, the
children’s wishes are not the only determining factor.
[48]
Taking into consideration the evidence presented by the parties
themselves, and the reports of the family advocate and family
counsellor, both parties are not that perfect. They have their own
flaws. The plaintiff in 2016 left the first born
child
alone in a car that burned down completely, but luckily the child
managed to escape from the burning car; the
plaintiff is accused of
having given the first born child a ladies’ magazine which the
school has found it not to be proper
for a school environment; and
that the plaintiff was found to have locked the children in
her flat and left them there alone.
The defendant on the hand,
the first born child has told the family counsellor that she had
witnessed the defendant
beating the plaintiff, and also
breaking the plaintiff’s laptop. The first born child has also
told the family counsellor
that the defendant had once
beaten her with a belt, and also does not want her to bring her
friends to the house.
The beating of the plaintiff and the first born
child by the defendant was corroborated by the second born child. The
second born
child had also told the family counsellor that the way he
saw the defendant beating the plaintiff that day, he
thought
he was going to kill her.
[49]
At time of compilation of the reports of the family
advocate and family counsellor, the first born child was aged
twelve
and thirteen years, second born aged six years, and fourth born aged
four and five years. The question is whether the age,
maturity and
development of the minor children was of such that they will
be able to express their views, and to what extend
must the court
give their views due consideration. Counsel for the defendant had
argued that the second and third born children
at the time of
the compilation of the reports by the family advocate and family
counsellor have not yet attained the intellectual
capacity and
maturity to the extent that it can be said that they have not
expressed their wishes. Counsel for the defendant did
not say
anything about the first born. The first born child had made damaging
statements against the defendant which to
some extend
corroborate the plaintiff’s version that she was beaten by the
defendant. A criminal case on that aspect has
been opened by the
plaintiff against the defendant, and the case is still pending. It is
not for this court to adjudicate
upon the criminal case, but
will merely take note of its existence.
[50]
Despite the imperfectness in both parties, what is of
paramount importance, is the best interest of the minor
children. In
Fortune
v Fortune
[4]
Schreiner JA said:
“
The courts have
always had the power to give custody to one or other parent; the
principles on which such orders should be made
have come to us from
the Roman-Dutch authorities and been developed in modern decisions.
The section was apparently designed to
free the Courts from
limitations, which might even at the present time be thought to exist
at common law, on their freedom to treat
the interests of the minor
as the sole factor. But there is no clear indication that the
Legislature intended to compel the Judge
to give effect to the
preponderance of benefit to the minor’s interest, once that is
established. The preponderance, though
sufficient to justify an order
where the interest of minor alone are regarded, may yet be slight
enough to make it reasonable to
take account of the guilt or
innocence of the respective parents or the degrees of hardship that
would be involved in an order
granted one way or the other.”
[51]
This court is mindful of the fact that for the past
sixteen months, the minor children have been staying with
the
defendant, and it is not desirable to subject the minor children to
change living conditions time and again. The minor children
love both
of their parents, but their parents have put them in a muddy
situation. The 2016 incident wherein the plaintiff left
the first
born child alone in a car that completely burned down, in my view,
was a freak accident which can happen to anyone. It
was never
planned, and the car was parked next to the plaintiff’s office.
As a police officer, she knew the area well, and
could not have left
the car with her own child at an unsafe area. Regarding the issue of
the magazine that the first born child
has taken to school and the
school did not approve of her been in possession of it, both parties
have testified that the magazine
contained people wearing ladies’
underwear. At age ten the first born child was reaching puberty
stage, and as a female she
will be interested in ladies’ staff,
which in some instances she would like to share with her friends.
There was no evidence
presented that the magazine contained nude/porn
pictures, which in that case will be concerning. In my view, the
issue of the magazine
is being blown out of proportion.
[52]
Regarding the issue that the minor children were found
alone at about 19h00 locked in the plaintiff’s
flat, the
plaintiff testified that she locked only the butler door, had not
gone far and had also requested her neighbour to put
an eye on them.
This incident took place on the 10
th
July 2020. July is
mid-winter and by that time it will be already dark outside and not
safe the minor children to be still roaming
on the street. By locking
the butler door and requesting her neighbour to put an eye on the
minor children when she went to drop
her domestic servant at the rank
which was not far from where they stay, in my view, did not amount to
child neglect. There is
no evidence that the plaintiff had instructed
the minor children to stay in darkness and not switch on the lights.
It was by their
choice to stay in darkness as when the defendant
requested them to switch on the lights they did so without any
complaint. The
plaintiff did not go far from her flat, and had left a
four and six years old children in the company of a twelve years old
child.
Even though the plaintiff should have learnt her lesson as to
what had happened in 2016 when she left the first born child alone
in
the car, in this case she had requested a neighbour to put an eye on
them, and in my view, it is being blown out of proportion.
[53]
Regarding the defendant, he had conceded having
assaulted the first born child. Both the first born
and
second born child have told the family counsellor that they have
witnessed the defendant assaulting the plaintiff in their
presence,
and the second born child even thought that the defendant was going
to kill the plaintiff. The second born child had
also witnessed the
defendant assaulting the first born child with a belt. South Africa
is fighting the scourge of family violence
which had engulfed the
entire country. Parents are the role models of their children, and
whatever they are doing, it is most likely
that their children will
copy from them. The defendant will like to raise two boys whom he is
exposing them to copy from him that
one solves his differences with
his partner by beating her. In that case the war against gender based
violence will never be won
as the children are already being groomed
to beat their partners.
[54]
Some children perform well at school when they do their
work as a group. In the defendant’s case, the defendant’s
does not want his children to bring their friends in his house. The
defendant’s children must therefore live like islands.
The concluding remarks of the first born child to the family
counsellor that she must not write something in her
report
that will make the defendant angry as she was afraid of him, shows
that the defendant has installed fear in the minor children,
and are
therefore not living in healthy environment where they are free to
enjoy their childhood. They are always in constant fear
of the
defendant which is not good for their wellbeing.
[55]
In my view, the defendant by beating the plaintiff and
his first born child in front of the other children is
exposing his
children to violence, and also abusing the first born child. These
are going to have some long term psychological
effect on the minor
children and is therefore not conducive from them to grow in such an
unhealthy environment. In my view, it
will be in the best interest of
the minor children if primary residence and care is awarded to the
plaintiff.
[56]
In the result I make the following order:
56.1 Decree
of divorce incorporating the deed of settlement is granted.
56.2 Primary
residence and care of all the minor children is awarded to the
plaintiff subject to the following parental
responsibilities and
rights over the minor children:
56.3 Both
parties shall remain co-holders of full parental responsibilities and
rights with regard to the care, guardianship
and maintenance of the
children.
56.4 The
plaintiff will allow the defendant to exercise the parental
responsibilities and rights with regard to contact
as follows:
56.4.1 To have children
on alternate weekends.
56.4.2 To share short and
long school holidays, the period of Christmas and New Year to
be alternated between the parties.
56.4.3 Special days such
as children’s birthdays shall be alternately celebrated.
56.4.4 The plaintiff
shall be with the children on her birthday and on mother’s day.
56.4.5 The defendant
shall be with the children on his birthday and on father’s day.
56.4.5 There
shall be reasonable daily telephonic contact with the children.
56.5 Each party to pay
his/her own legal costs of the divorce action.
KGANYAGO J
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA,
LIMPOPO
DIVISION, POLOKWANE
APPEARANCES:
Counsel
for the plaintiff
:
MM Makgaleng
Instructed
by
:
Makgoba Kgomo Makgaleng Inc
Counsel
for the defendant
:
MC de Klerk
Instructed
by
:
DDKK Attorneys Inc
Date
heard
:
3
rd
December 2021
Electronically
circulated on
:
10
th
January 2022
[1]
1981
(3) SA 1280
(A) at 1290F-H
[2]
38
of 2005
[3]
2017
(3) SA 570
(CC) at para 252
[4]
1955
(3) SA 348
(A) at 353F-H