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[2019] ZAFSHC 239
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P T v B T (641/2017) [2019] ZAFSHC 239 (5 December 2019)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE
DIVISION,
BLOEMFONTEIN
Case no: 641/2017
In
the matter between
P
T
PLAINTIFF
(ID:
[…])
and
B
T
DEFENDANT
(ID: […])
HEARD ON:
13, 14 & 16 AUGUST 2019
& 14 OCTOBER 2019
CORAM:
MURRAY AJ
JUDGMENT BY:
MURRAY AJ
DELIVERED ON:
5 DECEMBER
2019
[1]
The parties in these divorce proceedings were married to each other
in community of property on 4 December 2010 in Allanridge,
Free State
Province. It is common cause that they have been living
apart since January 2017 and that the marriage has
broken down
irretrievably with no prospects of restoration of the marriage
relationship.
[2]
Only two issues remain in dispute: (a) the primary residence of the
two minor children, with payment of maintenance by the non-custodian
parent and (b) the Plaintiff’s right to share in the
Defendant’s pension interest.
[3]
The two minor children born from the marriage are:
3.1 L T, a boy born on
[…] August 2009, and
3.2 T T, a boy born on
[…] December 2012.
[4]
L, who attends […] Primary School, and T, who attends […]
Crèche, have been living with the Plaintiff’s
parents in
Bayswater, Bloemfontein, since January 2014 and April 2014,
respectively. It is undisputed that the Plaintiff
himself has
been living with the boys at his parents’ residence since
January 2017.
[5]
The 34-year old Plaintiff, a qualified mechanical engineer, is
employed in the family business, JPS Coaches, in Heidedal,
Bloemfontein.
He works from 06:00 until 17:00 – 18:00 on
week-days, mostly in the office, but also on occasion ferries people
as a bus-driver.
On his evidence, he earns a gross salary
of R7 000.00 per month, with a net salary of R6 000.00.
He
contributes to the parental household by buying food. He
maintains the boys, including their school fees and activities, as
well as after-school care and extra classes for L, and therapy for T,
with the financial assistance of his parents. The Defendant
on
her own admission has never made any financial contribution towards
the boys’ maintenance.
[6]
The paternal grandparents have a 4-bedroom house. They, the
Plaintiff and T and L, and the Paintiff’s brother and
his wife
and son live on the premises. L and T have their own room in
the house, but during the week the three boys share
a room in the
second house on the premises (“the lapa”) where the
Plaintiff’s brother and his wife reside, in
order for the nanny
to get all three of the boys ready for school since the Plaintiff
needs to leave for work at 05:30 already.
The nanny also sees to
their lunch when they get back from school, under the supervision of
their aunt.
[7]
In the evenings, according to L, they play with their father and on
week-ends they love to sleep in their father’s room,
and attend
sports events with him. They also love hunting with their grandfather
and the Plaintiff. According to the school
reports the
grandparents and the Plaintiff are well-known at the boys’
schools and the Plaintiff is actively involved in
the boys’
school events and attends school meetings.
[8]
From the evidence and the relevant school and other correspondence it
is clear, furthermore, that the entire paternal family
is actively
involved in assisting with L’s and T’s upbringing.
The grandfather is the one taking them to their
respective schools –
according to the evidence they sometimes walk, and at other times he
drives them. The grandmother
is the one who takes T for his
occupational and speech therapy sessions. The uncle has on
occasion taken T to Dr Griessel,
and filled out the assessment form.
The aunt attends to the boys’ homework. Therefore, when
the Plaintiff himself
is not available he has an entire extended
family network who takes care of the boys. As the family
Counsellor Mrs
van der Westhuizen pointed out, that is part of the
boys’ heritage, and that is the environment in which, on their
own version,
they feel safe and secure and where they informed her
they wished to remain.
[9]
The Defendant, however, wishes the boys’ primary residence to
be assigned to her and, accordingly, for them to relocate
to
Allanridge where she resides. She alleges that the two Family
Advocate Reports issued in 2017 and 2019, respectively,
which
recommended that the children be allowed to stay with the Plaintiff
and his parents, were not based on a true version of
the evidence
given during the investigation. An application which she instituted
in April 2019 to compel the Family Advocate to
provide a transcript
of all the proceedings at the Family Advocate’s Offices failed.
[10]
The Defendant has been employed as a traffic officer by the
Department of Police, Roads and Transport since 1 August 2016.
She
works in Welkom and Odendaalsrus, but resides in Allanridge.
She lives alone in her childhood home which she co-owns
with her
brother. It is a 3-bedroomed house which according to her has ample
space for the boys. She alleges that if they
came to live with
her, she would employ a full-time nanny, and have her married aunt,
whose youngest child is still at school,
come and live with her to
take care of the boys when she is at work.
[11]
According to the Defendant she has already made enquiries at schools
in Odendaalsrus to have the boys transferred there and
has contacted
therapists for T. She indicated that the boys would have to
make use of public transport to get to school.
She works
shifts: one week she works from 06:00 to 14:00 and the next
from 14:00 to 22:00, and has two week-ends per month
free. At
times, when it is busy, she has to work from 22:00 to 06:00.
She earns R17 000 per month.
[12]
The Defendant avers that one of the reasons for the breakdown of the
marriage was that the Plaintiff allowed his parents to
interfere in
their relationship and in their parental rights regarding their
children. It is undisputed that she and the
Plaintiff in 2014
allowed L and T to go and stay with the Plaintiff’s parents, Mr
J T and Mrs E T, in Bayswater, where they
have resided for the past
4.5 years, and where they were joined by the Plaintiff in January
2017 when he left the communal home.
They agreed to the
arrangement in order to have the children live close to good schools
and to enable the Defendant to attend
Traffic Officer Training
College (“College”) for two years, from June 2014 to July
2016.
[13]
The agreement was that the boys would come home to the Plaintiff and
the Defendant in Fleurdal, Bloemfontein, for weekends,
and when the
Defendant finished College, they would come home permanently.
When the Defendant completed her training and
started working on 1
August 2016, however, the boys did not permanently return to the
communal home as had been agreed.
[14]
The reason, according to the Plaintiff, was that the Defendant for
two years during her training stayed at the Traffic Official
Training
College (“the College”) during the week, and was home
only on some weekends. After completion of her
studies, she
changed and on several occasions, especially at pay-time, simply left
the communal home for two days at a time and
stayed away without his
knowing where she was, leaving him there with the boys.
[15]
The Family Advocate’s Office has thoroughly investigated this
matter on two occasions, two years apart. Two different
Family
Advisors investigated the matter in 2017 and 2019, respectively, and
two different Family Advocates consequently provided
reports in which
they both recommended that the boys be allowed to stay with the
parental grandparents and the Plaintiff. It is
with that
recommendation that the Defendant takes issue.
The
First Family Advocate Report: 23 August 2017
[16]
The first report, by Family Advocate Vuyani Jamba, based on an
investigation into the
pendente lite
residency
of the children, was issued on 23 August 2017 when the boys were 8
years old and 5 years old, respectively. Mrs
Kgantse Molefi, a
Family Counsellor with 18 years of experience as a social worker, and
Adv Jamba then consulted with the parties
and Mrs Molefi assessed the
children. Mrs Molefi also interviewed the paternal
grandparents, the paternal aunt and the children’s
nanny, the
23-year old maternal cousin (whom the Defendant at that stage
indicated would come and live with her to help care for
the boys) and
the Defendant’s domestic worker and prospective nanny.
She also considered the reports of the boys’
teachers and T’s
therapists.
[17]
L told the Family Counsellor that he loves his grandparents and likes
living with them. His grandfather takes them to
school and his
grandfather and -mother assist them with homework. Their
homework is done by the time his father comes home,
so after work
they interact and play with him and on week-ends ‘bike’
with him and go with him to watch soccer games.
He identified
his father as the most important person in his life, although he also
loves to be with his mother and looks forward
to visiting her, but is
sad that she is not in Bloemfontein so they can be a family again,
and sad that she and his father and
the grandparents do not have a
good relationship. He also reported that the nanny assists in
preparing him and T for school
and prepares their breakfast and
lunch.
[18]
The family counsellor remarked that T has a small left hand without
fingers, which makes it hard for him to draw and write,
about which
other children bully him and make fun of him. He undergoes
occupational and physiotherapy, and also sees a speech
therapist.
The Plaintiff is making arrangements for him to get fitted with an
artificial hand, which the Defendant regards
as unnecessary.
In his drawing of his family he did not include his mother,
only his father, L, his paternal grandparents
and his paternal aunt.
[19]
The grandparents reported to Mrs Molefi that they were assisting the
Plaintiff to take care of the children who have settled
down well in
their environment. They reported that the Plaintiff has a close
relationship with his children, is involved
in their activities such
as sports, biking, shopping and watching movies. When he is
home he assists in bathing them and
cuddling them before they
sleep. He intends to buy a house where he and the
children would reside with the paternal
aunt and/or the nanny to take
care of them when he has other commitments.
[20]
When asked why, even though the boys had their own room, they had to
sleep in the ‘lapa’ with the nanny during
the week, the
Plaintiff explained that it was merely a practical
arrangement. Since he himself has to leave for work
at 5:30
already, which is long before the children need to get up for school,
it enables the nanny to wake them and get them ready
at the
appropriate time.
[21]
Adv Jamba emphasised the importance of taking cognisance of the
children’s views, with due regard to each child’s
age,
maturity and stage of development, as specified in s 10 of the
Children’s Act 38 of 2005. He remarked that although
both
children had a good relationship with both their parents, during the
assessment L, the then 8-year old, indicated that he
did not want to
relocate to Allanridge to live with his mother. It was evident
from the investigation that both children
were happily established in
their grandparents’ home where they had lived for most of their
lives. He concluded that,
during the enquiry there were no
substantial and compelling grounds to change the children’s
living arrangement.
[22]
Both the Family Counsellor and Adv Jamba cautioned that the
grandparents were exceeding their role regarding the care of the
children. They warned that it appeared that they had completely
taken over the parental responsibilities and rights of the
biological
father to the detriment of the children’s mother and had
obtained a protection order against the Defendant which
made it more
difficult for her to have contact with her children at their
residence.
[23]
In his report, Adv Jamba pointed out that it appeared that since the
separation of the Plaintiff and the Defendant, the Defendant’s
contact had been frustrated; that she had been excluded from major
decisions regarding the children; that the arrangement indeed
had
been intended to be a temporary one since, after leaving College, the
Defendant would take care of the children herself; but
that the
grandparents then frustrated her contact rights to such an extent
that she was even barred from entering their premises
by way of the
protection order, and that that had led to the acrimonious dispute
about the residence and care of the children.
Those findings
corresponded with the Defendant’s evidence in Court, but what
also emerged was that she had also obtained
a protection order
against the grandparents.
[24]
Adv Jamba cautioned that the grandparents should realise that the
children’s biological parents are co-holders of the
parental
rights and responsibilities and that the Defendant, as co-custodian
must not be left out of the major decision-making
regarding the
development and future of the children.
[25]
He advised, furthermore, that the children have a good relationship
with both parents and the grandparents, which relationships
should be
preserved for the children’s benefit, to increase their
security and stability. He then recommended that the parental
responsibilities and rights with respect to the care of the children
be retained by both parents, but that the children’s
primary
residence be awarded to their father. It was averred on behalf
of the Defendant that this recommendation is contrary
to the facts
set out in the report.
The
Second Family Advocate Report: 23 February 2019
[26]
A second Family Advocate Report by Adv Lucky Holele was issued on 23
February 2019. It resulted from an investigation
with a view to
the permanenent residency of the children upon the Defendant’s
request. Adv Holele also recommended
that the children stay
with the Plaintiff subject to the Defendant’s contact rights.
He was assisted in the investigation
by Mrs van der Westhuizen, a
qualified Social Worker with 28 years of experience.
[27]
The investigation consisted of a joint interview with the parties,
another assessment of the children, consideration of the
First Family
Advocate report with the recommendations of Mrs Molefi and Adv Jamba,
a report from T’s Occupational Therapist,
and the 2018 school
reports of both children.
[28]
The Defendant contended that this report was not in accordance with
the evidence led during the enquiry. Mr Palazzi, the Defendant’s
attorney, in argument submitted that it lacked a factual basis to
support the recommendations. He averred that the report contained
mostly legal conclusions. I cannot agree with that contention.
The Family Counsellor’s report contained several
material
factual findings.
[29]
The Family Advocate’s Office refused the Defendant’s
request to provide a transcription of all ‘evidence
led’
during the enquiry. A subsequent court application to compel
such delivery was also dismissed. It was held
that evidence
could be led during the divorce proceedings for the Court to
determine whether the evidence is compatible with the
recommendation
that the children reside with the Plaintiff.
[29]
At the stage of the second investigation L was 9 years old and T 7.
L was observed to be a happy child who participates
in
karate, cricket, rugby and hockey and who resides with his father on
the same premises as his paternal grandparents, paternal
uncle and
aunt, cousin and his brother. He has his own bed in a room
which he shares with his brother. He enjoys activities
with his
father with whom he feels safe. He does miss his mother and
wishes to have more contact with her, but indicated
that he did not
want to reside with her because he did not want to go to a new
school. He wants to stay with his father.
His school report
indicated that his father attended the sport matches and parent
meetings and that his father and paternal grandparents
are fulfilling
his emotional and developmental needs.
[30]
T was 7 years old at the time. The Family Counsellor found him
to be extremely shy, with speech and concentration delays.
He
indicated that he wished to continue to reside with his father and
brother in their current house and provided no information
about his
mother. He was to repeat Grade R because of emotional
immaturity and receives medication to improve his concentration
levels. He was also referred to an occupational and a speech
therapist. He has adjusted well to the routine and structure
in
the class of […] Pre-Primary School and relates well with his
class-mates, but is still being bullied at times and needs
adult
assistance in standing up for himself.
[31]
The Family Counsellor determined that although his grandparents are
well-known at the school, his mother is unknown and has
never shown
any interest in his progress or attended school activities. She
reported that although T still showed some delays in
emotions,
independence and understanding of ideas, place, time and
relationships, the Plaintiff is seeking the necessary professional
assistance to help him overcome these delays.
[32]
Mrs van der Westhuizen indicated that the reasons the Defendant
advanced for seeking the children’s primary residence
is that
she is able to care for them herself and that their residing with the
grandparents had only been a temporary arrangement.
She
indicated that she would get a full-time helper to help care for them
in Odendaalsrus. She also informed her that she would
allow the
father the same access rights that she had, and that she would give
the grandparents reasonable access to the children
as well.
[33]
Mrs van der Westhuizen reported that the Plaintiff, on the other
hand, informed her that it would not be in the children’s
best
interest to have their current primary residence changed. He
stated that it was very important that they be allowed
to stay in
their current schools where they are settled, are progressing well,
also in sport, and where they have their own circle
of friends.
He informed her that L and T are happy and settled residing with him
and that the Defendant has free, regular
contact with them.
[34]
The Family Counsellor then undertook an extensive evaluation of the
facts in terms of the factors listed in s 7 of the Children’s
Act 38 of 2005 to determine the best interests of the children.
Regarding:
34.1
S
7(1)(a)(i)
[1]
she
found that there was a good relationship between both parents and the
children, but that it is important to acknowledge the
strong and
secure relationship between the children and the paternal
grandparents with whom they have resided since 2014.
(This
finding corresponds with that of Ms Molefi in the first
investigation.)
34.2
S
7(1)(b)
[2]
she found that both parents indicated that they do not have a problem
with the other parent exercising his or her parental
rights and
responsibilities and that they appear to have found an appropriate
way to communicate regarding the children’s
needs and the
exercise of contact rights.
34.3
S
7(1)(c)
[3]
she found that both parents have the capacity, ability and means to
provide in the children’s needs, as well as in their
emotional
and intellectual needs.
34.4
S
7(1)(d)
[4]
she found that since 2014 the children have been living with the
paternal grandparents who have been actively involved in their
upbringing, school and especially with T’s various therapy
sessions. Also that the children are happily residing with
their father at the paternal grandparents’ residence and are
comfortable with the arrangement. They are well-adjusted
in
school performing and developing well. Significantly, she concluded
that it would not be in their best interests to change their
primary
residence to that of the mother in another town, and to have them
change schools and therapists. (This finding, also
corresponds
with that of Ms Molefi during the first investigation.)
34.5
S
7(1)(e)
[5]
She found that the mother has been able to exercise regular contact
with the children although she resides in Odendaalsrus, 165
km from
Bloemfontein. The grandparents have also offered safe transport
for the children to her if she paid half of the transport
costs.
34.6
S
7(1)(f)
[6]
She stressed the importance of enabling the children to have regular
contact, not only with the other parent, but also with
both sides of
the extended family, maternal and paternal.
34.7
S
7(1)(g)
[7]
She stressed that the children need to have regular contact with both
parents and that their residence with their grandparents
is part of
their background which plays a vital role in their current
situation. (This confirms the finding of Ms Molefi
in the first
investigation.)
34.8
S
7(1)(h)
[8]
She stressed the importance of the mother’s active involvement
in the children’s sport and school activities,
and with T’s
therapists, with as much structured contact with the children as
possible to ensure that their bond with her
stay strong and secure.
[35]
The Family Counsellor, in keeping with the findings of Ms Molefi and
Adv Jamba of the situation prevailing during the first
investigation,
then reminded both parties and the grandparents, in accordance with
the provisions of the Children’s Act,
of their obligations
towards the children, pointing out the potential consequences if such
conduct were to be allowed to continue,
namely:
35.1
S
8(2):
That both parents need to be
aware that their responsibilities and rights regarding the children,
include (i) to care
for the child (ii) to maintain contact with
the child (iii) to act as guardian to the child, and (d) to
contribute to the maintenance
of the child.
35.2 That the potential
for ‘Parental Alienation’ could be triggered by one
parent withholding from the other parent
the right to have regular
contact with the children and by preventing the other party to
exercise her or her parental rights and
responsibilities regarding
the children.
35.3 That both parents
and the paternal grandparents need to take note of s 35(1) of Act 38
of 2005 and warned that any person who
prevents access to the
children pursuant to a court order or prevents the exercising his or
her parental rights and responsibilities
is guilty of an offence
which can lead to imprisonment.
35.4 That, since both
parents are holders of parental rights and obligations regarding the
boys, the person with the primary right
of care and residence needs
to take into consideration any views or wishes expressed by his or
her co-holder of rights before taking
any major decisions regarding
the children, in accordance with s 31(2)(a) of the Children’s
Act.
[36]
Based on her investigation, her findings, and the ‘best
interest of the child’ analysis in terms of s 7 of the
Children’s Act, the Family Counsellor then recommended that the
parental responsibilities and rights be awarded to both parents,
and
that the primary residence remain with the Plaintiff.
[37]
Family Advocate Holele recommended accordingly.
The
Evidence in Court:
[38]
The Plaintiff’s evidence was that there was no prospect of the
marriage being saved. He confirmed that he left the communal
home in
January 2017 already and that he has since resided with the two
children in his parents’ residence. Also that,
until then
the boys, by agreement, had lived with his parents and only came home
on weekends.
[39]
His reason for leaving, according to him, was the dispute between him
and the Defendant, as well as the Defendant’s dispute
with his
parents over the children, and her swearing at his mother and father.
He maintained that he brought up and maintained
the children,
supported the Defendant through College, then helped her to find
employment. According to him, when she received
her first
salary in August 2016, however, she simply disappeared and he did not
know where she was or what she did with her money.
That was
when he started seeing payments to her parents. According to
him, she was gone for the entire September, including
the 4 weekends
during which the children came home and stayed with him. Yet,
even on her own version, she never contributed
financially to the
children’s maintenance.
[40]
According to him, since he had been taking care of the children,
together with his parents, he knows them and their needs better
than
the Defendant does. His parents assist with transporting the
children to school, sport and other activities, medical
appointments
and therapy sessions when he is not available. They live close to the
childrens’ schools, apparently within
walking distance, in a
4-bedroom house with the grandparents and the Plaintiff’s
brother, his wife and their son. The boys
have their own room but
love sleeping with the Plaintiff when possible, which they do on
weekends.
[41]
He testified that L loves and excels at rugby, and is the captain of
the school’s u/11 team. They attend rugby
matches
together. The boys also love hunting, which they do together with him
and his father. He indicated that T has
special needs
because of an attention deficit disorder and a physical disability
because he has no fingers on his left hand.
His grandmother
takes him for physio- and occupational therapy twice a month, and
arrangements have been made for him to get an
artificial hand.
[42]
The Plaintiff testified, furthermore, that the Defendant is a
Government employee and as such has a Medical Aid, but only recently
provided them with a Medical Aid card for the children. He
indicated that his father pays for T’s Occupational and
Speech
therapy sessions, while he and his parents pay the children’s
school fees, clothes, extra-mural, school materials
and aftercare for
L.
[43]
According to him, since the Interim Order, the Defendant has fetched
the children for the holidays. However, during 2019,
except for
the Easter long week-end, and the June holidays, she never fetched
the boys for a weekend even though she is entitled
to have them every
second weekend. Previously, when she fetched them for weekends,
she would forget that they have school
the next day and would only
bring them back at 20:30 or would send them back with unknown people.
These allegations were not denied.
[44]
The Plaintiff also indicated that in December 2017 he called the
Defendant to tell her that he was coming to see the children
as per
their arrangement, but when he arrived, she told him they had gone to
Bothaville with her uncle. When he went to the
Police Station
to report the matter, they called the Defendant’s uncle who
denied having taken the children along.
After the Plaintiff had
driven back to Bloemfontein with the items that he had bought for the
children, the Defendant sent a message
telling him to come the next
day, but he could not do so.
[45]
He testified that he had discussed the possibility of a move with the
boys, and that they had indicated to him that they wanted
to stay
with him in Bloemfontein and not in Allanridge with their mother.
They enjoy Bloemfontein and a change from the environment
of
Bloemfontein to that of Allanridge would severely impact their school
work.
[46]
He confirmed that the Defendant works in Welkom and Odendaalsrus, but
resides in Allanridge. Also that she works shifts which
every second
week start at 6:00 while the children only have to leave for school
at 7:00, and that during holidays and Christmas
she sometimes has to
work through the night.
[47]
Under exhaustive, two-day long cross-examination, the Plaintiff
testified that he refused to have the children come home after
the
Defendant returned from College because he could see how she had
changed and could see that she was not taking care of them.
He
averred that, although he did not report that during the family
advocate investigation because he was not asked about that,
she could
not even cook food for the children. He stated that the
problems between the Defendant and his parents started
even before
she went to College. While she was studying, she would stay at the
College during the week and only come home to him
and the children on
some weekends.
[48]
According to him his parents supported his decision that the children
should stay with them, and, although the Defendant did
not want them
to stay with the grandparents, which caused the dispute between her
and the parents, and did not care about the children
getting a better
education, she accepted the decision. He said at first she agreed,
then she refused and after the two of them
talked about it, she
agreed again, but also told the grandmother that if she failed to
look after the children, she would take
them to Allanridge.
[52]
He testified that when he left the communal home, he arranged with
the landlord that he would continue to pay the rent so the
Defendant
could stay on in it. He testified that the Defendant sometimes went
to see the children during school hours, which disrupts
their
classes. She averred that she did so because the Plaintiff and
his parents would not allow her to see the children
when she wanted
to. He stated, furthermore, that the Defendant tried to take
the children to Allanridge without his knowledge
and he only found
out about that when the school called him and told him the Defendant
had requested a transfer to a school in
Odendaalsrus.
[50]
The Plaintiff testified that the Defendant was present when he left
the communal home in January 2017 and took with him a TV,
couches,
his clothes and some smaller items and left her with what he
considered to be 50% of their belongings. He testified that
the
Defendant never made any financial contribution to the joint estate,
even when she was employed.
[51]
The Plaintiff maintained that the joint estate needed to be divided
50/50 because of the marriage in community of property,
that the
Defendant needed to contribute 50% of the children’s upkeep,
and that he should still get his 50% of the Defendant’s
Pension
Fund. He disagreed, when it was put to him in
cross-examination, that on his own version he finally divided all the
estate assets when he left the communal home in January 2017 and,
since he thereafter made no contribution to the Defendant’s
pension interest, he was not entitled to claim 50% thereof. The
Defendant admitted that they never discussed her pension fund.
[51]
The Plaintiff denied, furthermore, that the application which he
brought on 9 March 2017 to have the primary residence of the
children
assigned to his parents could be construed as an acknowledgment that
he was not a fit and proper person to take care of
them. He
explained that it was merely an interim measure since they were
responsible for housing the children and taking
them to school and to
their other activities when he was not available. He
admitted that he had suffered from depression
at some stage, but had
not needed to take medication for that for the past two years.
[53]
The Plaintiff was confronted with several so-called examples of his
father actually being the real father figure in the children’s
lives, not him, such as a statement in the interim application that
his father plays a vital role in the children’s lives;
an
invoice for Lindo’s extra classes made out to his father; a
letter that stated that Lindo’s grandparents taught
him good
manners; a note by Dr Griessel which stated that T benefits
from the stability of staying with his grandparents;
and with T’s
sensory profile which was completed by the Plaintiff’s brother.
[54]
The Plaintiff explained that he provided the money for T’s
therapist, and that his family members take the children to
appointments or therapy sessions when he himself was not available.
In my view the examples above merely illustrate the importance
of the
Plaintiff’s having a supportive family structure who can and
does help him take care of L and T, one in which, moreover,
they feel
secure, as stated by the Family Counsellors. On the Defendant’s
evidence such an extensive support system would
not be available if
they were to relocate to Odendaalsrus.
[55]
The Defendant’s version is that she is able to look after her
children and want them to live with her. Her main
reasons for
saying that she should be awarded their primary residency are: 1)
that they are still young; 2) that they should still
be under the
control of their parents; and 3) that they need a mother’s
love, care and guidance. She averred
that she would have
time to find out what their needs are whereas the Plaintiff would
not. The only time she would not be able
to take care of them, are
the times when she is on duty, but thereafter she could come back to
take responsibility. When she works
the 6:00 – 14:00 shifts she
will be with them in the afternoons; when she works from 12:00 -
20:00 she will be home late.
During Easter and the Festive
Season she works night shifts.
[56]
The Defendant stated that when she works morning shifts which start
at 6:00 she will have a family member assist her to get
the children
ready for school and they will be transported from Allanridge to
Odendaalsrus by “scholar transport” against
a monthly
payment. When she works night shift, the family member would
sleep over and in the morning would wash and feed
the children and
take them to school. It is not clear whether she meant the lady
would really take them to school, or that
she would accompany them to
where they would board the ‘scholar transport’. The
nature of the said transport
was not explained.
[57]
When she is doing the afternoon shift, the lady would assist until
she completes her shift at 20:00. In cross-examination
she
averred that the said family member with whom she has an agreement,
would be one Sehapi Seloaocoe, a middle-aged lady married
to the
Defendant’s cousin with three children of her own and of which
the youngest is still in school. The Defendant
could not say
what would happen to the said lady’s own household or her own
children.
[58]
The Defendant testified that she has already made arrangements in
Odendaalrus with Brandwag Volkskool, and with a Speech Therapist
as
well as an Occupational Therapist for T, and handed up three
documents as proof thereof. She confirmed that she
is a
member of a Medical Aid Scheme and that the children are
beneficiaries thereof, whereas the Plaintiff does not have a Medical
Aid Scheme. She did not dispute that the Plaintiff would claim
R2000 per month per child maintenance from her if the children’s
residence were to be awarded to him, and
vice
versa
, and would not indicate what amount of
maintenance she would be willing to pay. She did confirm that
if primary residency
were to be awarded to her, she would abide by
the contact rights assigned to the Plaintiff and the paternal
grandparents by the
Court.
[59]
Under cross-examination she admitted that since their marriage in
2010 until she finished College and started working in August
2016,
the Plaintiff took full care of her financially. She also
admitted that L went to stay with his grandparents in January
2014
already, even though she was at home and not working and before she
started College in June 2014, although she stated that
that was only
during the week, for purposes of school, and that he came home to her
and the Plaintiff on weekends. Also that T
went to stay with them in
June 2014 when she started College.
[60]
According to her, she reluctantly agreed to both children staying
with the grandparents because they would be closer to school
there,
but only because the Plaintiff and his parents insisted and they were
three against one. She denied that when she
received her first
salary at the end of August 2016, she disappeared without letting the
Plaintiff know where she was, leaving
the children with him or the
grandparents. When asked why her attorney spent almost an hour
trying to disprove the Plaintiff’s
claims about the specific
dates and total duration of her periods of absence, but never put to
the Plaintiff during cross-examination
that she never disappeared,
she averred that she never discussed it with her attorney, then
averred that she did tell him so at
the end of the day on which she
heard the Plaintiff’s evidence to that effect.
[61]
The Defendant maintained that, because she only started earning a
salary in August 2016, the Plaintiff should forfeit his portion
of
her pension since on the day he left in January 2017, he took
everything he needed and left her with only what he did not need.
She conceded that they never discussed her pension.
Regarding the fact that he took care of her since 2010 she said
that
was because they were husband and wife and did things together,
whereas at this time they are no longer staying together and
after 2
January 2017 they did not share anything.
[62]
The Defendant testified that she earned a monthly salary of R17 000
before deductions, and a net salary of R10 000
– R12 000,
depending on overtime. She maintained that she did not know the
amount of her monthly deductions, but
conceded that as a government
employee 7% of her gross salary is deducted. She has no bond
payments, does not own a car,
has no insurance and listed monthly
expenses of around R 4 200.
[63]
She also admitted that she has never contributed any money towards
maintenance of the boys, although she has bought clothes
for them
when they visited her. She averred that the reason for not
making any contribution was because she was fighting
for the
boys to stay with her and if they had stayed with her, she would have
paid their school fees. She stated that
she did not see
the need to contribute towards their care because she did not have a
good relationship with the paternal grandparents
and she could not
talk to them to find out what the boys needed. She averred that
she was not allowed to see them when she
wanted to, so she gave them
what they needed at school. She also averred that the
grandparents did not return her calls,
so she could not make monthly
payments for the boys.
[72]
On a question why she could not make arrangements with the Plaintiff
to make monthly contributions when she saw him, she admitted
that
during December 2017 when the children were staying with her and the
Plaintiff called to tell her he was on his way to see
them, as per
their arrangement, she told him that the children were not home.
She averred that she could not make arrangements
with him then
because he called late and wanted her to come to the Police Station.
She would have had to walk and it was
already dark. She averred that
she could not make such arrangements when she took the children back
to Bloemfontein, either, because
she merely dropped them off.
[73]
The Defendant averred that she did tell the Family Advocate that the
current environment was not in the children’s best
interests,
that they are not properly cared for and that they are complaining a
lot that they are afraid where they are staying.
When asked why the
Court should not accept the two Family Advocate recommendations that
the children remain with their father,
she simply stated that she
thinks that, as their mother, they should stay with her and that the
Court should look at the reasons
why they should not stay with her
[74]
I made use of my right to enquire fully into the circumstances in
which the children presently live by asking the paternal
grandparents
to appear before me as well and to testify about their involvement in
and care of the two boys in their residence,
which they did. I
am satisfied that they are not acting in their own selfish interests
by having the boys stay with them,
but are acting with the children’s
best interests in mind. They are and have confirmed under oath
willing and
able to continue to give the Plaintiff the necessary
support an assistance in taking care of L and T if the children’s
primary
residence were to be awarded to the Plaintiff. They obviously
care for the children and assist, not only financially, but by being
actively involved in their school environment, educational needs and
T’s therapy, and even in their recreational activies,
and in so
doing contributing to a stable and secure atmosphere in which the
boys can grow emotionally. They are by all accounts
doing that
well.
[75]
Although I also invited the Defendant through her attorney to have
the potential carers in Allanridge, the aunt and the nanny,
appear
before me, that invitation was not acted upon.
[76]
I found no reason to doubt the veracity and reliability of the two
Family Advocate reports. Both Family Counsellors who
assessed
the family and the two boys are highly experienced social workers who
have been trained to observe and assess people and
to test children,
and to form and express a professional opinion on their assessment
and observations. Neither of them would
have gained anything by
omitting crucial information or by providing false facts or
findings.
[76]
I found no major discrepancies between the evidence in court and the
contents of the two reports, except for the Defendant’s
allegation of alleged unreported information. It is in fact
significant that Mrs Molefi and Adv Jamba, despite noticing and
commenting on the strained relationship between the grandparents and
the Defendant, still regarded it to be in the children’s
best
interests to recommend that their primary residence be awarded to the
father.
[77]
The Defendant averred that she told the Counsellor that the children
were unhappy and scared in their present situation and
that they
continuously complained about the strict discipline at their
grandparents’ house. I could not find any substantiation
for that allegation, however. The contention in fact flies in
the face of all the school and therapists’ letters and
reports,
the observations by the two Family Counsellors, the children’s
reports to the two Counsellors and the father’s
evidence that
both boys have indicated that they wished to stay with their father.
[78]
Regarding the desirability of causing the children to move to
Allanridge, I have carefully evaluated all the documentary evidence
at my disposal, the parties’ evidence, the contents of the two
Family Advocate reports and all the surrounding circumstances
and
have come to the conclusion that it would neither be justifiable nor
be in the best interests of L and T to uproot them from
their present
caring and supportive environment in the absence of any substantial
and material grounds for doing so.
[79]
As it is, T is already at a disadvantage due to his physical
disability and emotional immaturity, and his speech and concentration
delays. He appears to be gaining confidence and making progress
with the help of a speech and an occupational therapist and
Dr
Griessel, the Principal Specialist in the Neuro-Developmental Clinic
at the Department of Paediatrics and Child Health, who
has been
treating him for the past three years. He is also awaiting the
fitting of an artificial hand which in itself will
need patience,
adjustment and emotional support. The entire paternal family
seems to be involved in assisting with his special
needs already.
[80]
It is significant that, according to Mrs Molefi, T did not include
his mother in his drawing of his family in which he depicted
his
father, his brother, his grandparents and his paternal aunt.
And also that, according to Mrs van der Westhuizen, he does
not talk
about his mother. That is consistent with the school’s report
that his mother is unknown there and has never shown
any interest in
his progress or attended school activities, and that he indicated to
Mrs van der Westhuizen that he wished to continue
to reside with his
father and his brother, and her observation that the Plaintiff is
seeking the necessary professional assistance
to help him overcome
his cognitive delays. The Defendant’s absence of active
participation in T’s life is also evident
from the Plaintiff’s
testimony that, although the Defendant has the right in terms of the
interim court order to have the
boys every second weekend, she has
not fetched them for a weekend since Easter. And consistent with her
admission that she has
never paid maintenance for them.
[81]
In my view it would have a profound negative impact on T to be
removed from this supportive family set-up to a strange town
and a
strange school with a mother who has not been actively involved in
his life for the past 4,5 years, and where his adjustment
will have
to start all over again with new therapists and new caretakers when
his mother is at work until past his bedtime every
second week.
Especially so since there are no substantial and material grounds for
doing so, as Adv Jamba stated.
[82]
L, who is older, has also expressed the wish to stay with his
father. Contrary to the Defendant’s averment that
the
children are scared in their current situation, Mrs van der
Westhuizen reported that he is a happy child who feels safe with
his
father, while the school reported that his father and paternal
grandparents are fulfilling his emotional and developmental
needs.
From the two Family Counsellors’ observations and
investigations it is clear that he is also settled and secure
in his
present circumstances. He reportedly enjoys the activities with his
father and grandfather and although he misses his mother,
he does not
want to live with her and move to Allanridge and a new school. He
obviously has friends and is the captain of the u/11
rugby team at
his school.
[83]
Although a move to Allanridge would probably have less of a long-term
negative impact on L than on T, it would still not be
justifiable to
deprive him of the security of his present situation with all the
activities he presently enjoys with his father
and grandfather and
friends and teammates at school in the absence of any pressing
reasons such as, for instance, maltreatment,
abuse, neglect, alcohol
abuse, violence, disinterest in their well-being, or a toxic
environment, none of which are present.
[84]
That his mother wishes to have the two of them live with her, is
understandable. It is trite, however, that in situations
like
this it is the best interests of the child or children and not the
interests or wishes of the parents that are paramount.
The
Children’s Act No 38 of 2005 makes that very clear and provides
for the determination of the children’s bests interests
by way
of an investigation in accordance with the non-exhaustive check list
of criteria set out in Section 7 thereof, such as the
one that was
indeed conducted by Mrs van der Westhuizen.
[85]
A further factor which tips the scale in favour of primary residence
with the Plaintiff is the importance being assigned to
the children’s
views in divorce matters when they are of sufficiently mature age and
emotional development to take cognisance
of their wishes. L
clearly identified his father as the most important person in his
life and has expressed the wish to stay
with him. He is of an
age where his wishes should be taken into account as one of the
important factors which the court needs
to consider. T did the
same, albeit indirectly, by including his father in his picture but
not his mother. That is
supported by the grandparents’
evidence that the father is very involved in the children’s
activities and care, as
well as by the school reports commenting on
the involvement of the father and the grandparents.
[86]
In
P v
P
[9]
it was stated that
“…
determining
what custody arrangement will serve the best interests of the child
in any particular case involves the High Court making
a value
judgment based on its findings of facts in the exercise of its
inherent jurisdiction as the upper guardian of minor children…
“
[87]
Regarding the Defendant’s averment that she should get the
children because they are still young and need a mother’s
love
and guidance, the court in
Van
Pletzen v Van Pletzen
[10]
held
that mothering is not only a component of a woman’s being, but
is also part of a father’s being, and that a father
in
appropriate circumstances possesses the capacity and the capability
to handle the care of a child just as well as a mother.
[88]
Likewise in
Van
der Linde v Van der Linde
[11]
it was
held that the concept of mothering is indicative of a function rather
than a
persona
and
includes the sensitive attachment which ‘flows from the
attention devoted day-to-day to the child’s need of love,
physical care, nutrition, comfort, peace, security, encouragement and
support.”
[89]
There is therefore no reason why a father cannot assume the role of
‘mother’ in raising his children and, as stated
in
V
v V
[12]
,
it is no longer the case that where young children are concerned
courts would automatically assign the child’s primary residence
to the mother. The court then held that
“
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.”
[90]
In
Baloyi
v Baloyi
[13]
as in this case, the father and the mother both contended that it
would be in the children’s best interests to reside with
them.
As in the present case where the Family Counsellor indicated that
both parties are capable of providing the boys with
the necessary
love and emotional support, no serious allegations pertaining to each
party’s capacity to care for the children
were made and as a
result there were no clear “red flags” raised against
either parent’s name. In that
case, too, the father had
interim residency of the children, a boy and a girl aged 6 and 4
years old, respectively.
[91]
As is clear from
Baloyi,
a
decision on the child’s best interests should be made on the
facts and the particular circumstances of the case, and not
on
generalisations such as
‘
the tender age of
the child doctrine’
or the principle of
‘
preserving the status quo’
.
The court also stated that far-reaching statements such as ‘
young
children should reside with their mothers’
are
unsustainable and that, despite the ‘traditional’ roles
that used to be attributed to men and women in a parenting
scenario,
there is no doubt that over the last few years the roles and
responsibilities of parents within the family structure,
as well as
social norms and patterns in this regard have changed with fathers
taking up parenting roles and mothers following their
own careers.
[92]
In the present case, over and above the factors set out above, the
physical circumstances if the children were to have to move
to
Allanridge would be less favourable than those in the current
situation. There they would have to travel to another town
to
attend school, would be dependent on public or “school
transport” instead of being able to walk to school, and would
not live in the school neighbourhood among their school friends. The
Defendant will be away from home every second week for the
entire
week until after the children’s bedtime, and they would not
have the large family support structure to rely on that
they have
enjoyed for the past almost 5 years. They will therefore
be in no better a position if they were to be placed
in the
Defendant’s care.
[93]
The Defendant’s lack of active involvement in the children’s
lives in the past 5 years, as is evident from the
school reports, the
Plaintiff’s testimony, the Defendant’s own evidence, and
from the Family Councellors’ reports
regarding L and T, as well
as her failure to contribute to the children’s maintenance
because of her negative relationship
with their grandparents raise
the concern that her conduct may be indicative of a lack of insight
into what is in the children’s
best interests. That
impression is underscored by the averment that she does not regard an
artificial hand for T as necessary
while according to the Family
Counsellors he is still being bullied and ridiculed because of his
deformed hand with which he struggles
to perform the necessary
developmental tasks such as cutting with a pair of scissors.
While it is undeniable that the grandparents
and Plaintiff have to
share to a large extent in the blame for her absence of more active
involvement, as Adv Jamba and Mrs Molefi
pointed out, it is the
factual situation.
[94]
On a careful evaluation of all the factors in this situation, I
cannot find that it would be in L’s and T’s best
interests to change their primary residence and award it to the
Defendant whilst there are no substantial and compelling reasons
to
do so.
Forfeiture
:
[95]
The parties are married in community of property, therefore they are
by law entitled to share 50/50 in all the assets and benefits
of the
marriage unless there are grounds for forfeiture. Section 9(1)
of the Divorce Act 70/1979 authorises forfeiture, either
wholly or in
part, depending on the duration of the marriage, the circumstances
that gave rise to the breakdown and substantial
misconduct by the
relevant party, if the court is satisfied that if forfeiture is not
granted, one party will unduly benefit in
relation to the other.
[96]
The Defendant has been a member of the Government Employees Pension
Fund since she was first employed in August 2016, therefore
for the
past three years. In terms of the marriage in community of
property the Plaintiff lays claim to 50% of the Defendant’s
interest in the said Fund as at date of divorce. She denies that he
has any right to the pension fund because he did not contribute
it.
[97]
She avers, furthermore, that when the Plaintiff left the communal
home, he took all the assets that he had contributed towards
the
marriage, and left her there with what she had contributed.
According to her that was the final division of the estate
and it
would only be fair for each party to retain the assets presently in
his or her possession and, accordingly, for the Plaintiff
to forfeit
his share in her pension interest.
[98]
A party who claims forfeiture needs to provide the grounds on which
he or she makes the claim. As held in
Klerck
v Klerck
[14]
the
common law principle that no person ought to benefit financially from
a marriage which he or she caused to fail, no longer forms
the basis
for a forfeiture order. South African Courts have abandoned
fault or conduct of a party as the main reason for
a forfeiture
order, therefore, as was held in
JW
v SW
[15]
a
finding of substantial misconduct does not on its own justify a
forfeiture order.
[99]
It clear that a pension interest is an asset in both parties’
estates. As was confirmed in
Ndaba
v Ndaba
[16]
the
pension interest of a member spouse is at date of divorce by
operation of law part of the joint estate for purposes of determining
the parties’ patrimonial benefits as is determined by s 7(7)(a)
and
s 7(8)
of the
Divorce Act 70 of 1979
.
[100]
In
Wijker
v Wijker
[17]
the Supreme Court of Appeal made it clear that the equitable
principle of fairness cannot be used to justify an order of
forfeiture
since it runs counter to the basic concept of community of
property. The Court consequently held that
s 9
does not provide
for the application of the principle of fairness in order to deviate
from the nature of community of property
and that the notions of
equity and fairness have no relevance in what would constitute an
undue benefit.
[101]
The court stated that the first step to determine if forfeiture is
warranted, is to determine whether or not the party against
whom the
order is sought, will in fact benefit if forfeiture is not ordered.
Once it is established that the party will benefit,
regard has to be
had to the factors set out in
s 9
to determine if such benefit will
be an undue one
[102]
In
Moodley
v Moodley
[18]
the
court held that what the party forfeits is not his share of the
common property but only the pecuniary benefit he would otherwise
have derived from the marriage, and therefore that the party claiming
forfeiture must prove some kind of contribution that exceeds
the
contribution of the other party towards the joint estate. And in
Engelbrecht
v Engelbrecht
[19]
the
court in dealing with the factual determination of ‘benefit’
said that:
“
Unless
the parties (either before or during the marriage) make precisely
equal contributions the one that contributed less shall
on
dissolution of the marriage be benefitted above the other if
forfeiture is not ordered” (against such party).
[103]
It is common cause that the T-marriage endured from December 2010
until January 2017 when the Plaintiff left the communal
home, a
period of approximately 7 years, and that for the last two years
thereof the Defendant attended College and resided on
campus, only
coming home on some weekends. It is common cause, too, that the
Plaintiff financially supported her and the
children in all respects,
even though the Defendant obtained employment in August 2016, until
January 2017 when he left.
[104]
Although the Defendant contributed to the household since December
2010 by keeping house and taking care of the children,
for all
practical purposes her non-pecuniary contribution stopped in
June 2014. Her contribution therefore spanned
only three of the
seven years. From the parties’ evidence it appears that
once she started working in August 2016 she
did not contribute to the
household financially, either. And on her own evidence she
never contributed to the children’s
maintenance.
[105]
In August 2016 the Defendant started building up a pension interest.
The next 6 months of the marriage was evidently
marred by
strife and in January 2017 the Plaintiff left to move in with his
parents and the boys. The Defendant then moved
to Allanridge to
live in her late mother’s house.
[106]
The question therefore is whether, in view thereof that the Defendant
never made any financial contribution to the household
at all, and
that her non-pecuniary contribution endured for less than half the
duration of the marriage, an order that the Plaintiff
is to forfeit
his share of her pension would be justifiable.
[107]
There is no evidence that the Plaintiff committed serious misconduct
which should count against him regarding the forfeiture
claim.
The Defendant avers that the Plaintiff caused the breakdown of their
marriage by allowing his parents to interfere
in the marriage
regarding the children. He, on the other hand avers that the
Defendant caused the failure of the marriage by disrespecting
and
swearing at his parents, and by simply disappearing for two days at a
time around pay-time once she started earning a salary.
[108]
The Defendant averred that the Plaintiff could not share in her
pension interest because he made no contribution to it.
It is so that for the 6 months leading up to his departure from the
common home, the Plaintiff did still support the Defendant
by still
financially maintaining the household and, with his parents’
assistance, the children, while according to him, the
Defendant made
payments to her relatives but none to the common household.
[109]
In view of the circumstances of this case, taking into account the
substantially larger contribution that the Plaintiff made
to the
common estate, the absence of substantial misconduct, the relatively
short duration of the marriage during which the Defendant
made no
financial contribution and a non-pecuniary contribution for less than
half the marriage, and the circumstances that led
to the
irretrievable breakdown of the marriage, it might be argued that it
would be fair if a forfeiture order were not to be made
against the
Plaintiff. But, as is clear from the case law, principles of
fairness and equity do not play a role in claims
for forfeiture.
[110]
The Defendant’s pension interest is the only remaining asset in
the common estate and the only one regarding which forfeiture
is
claimed. In my view the Defendant did succeed in proving that
she made the only pecuniary contribution to that particular
asset, as
indicated in
Moodley
v Moodley
[20]
,
in that her pension interest only started to accumulate 5 months
before the Plaintiff left the communal home and stopped supporting
her financially. Thereafter, from January 2017 the parties went their
separate ways. In view of the short duration of the
accumulation of the pension fund, and in view thereof that the
parties for only 5 months thereof still shared a common household,
the Plaintiff would be unduly benefited with reference to that
specific asset if a forfeiture order were not to be granted.
[111]
In the particular circumstances of this case, I therefore conclude
that a forfeiture order against the Plaintiff with reference
to the
Defendant’s pension fund is warranted.
[112]
Given the discretion vested in the Court with regard to costs, it
would in my view be just and equitable for each party to
bear its own
costs.
WHEREFORE
I make the following order:
1.
The marriage between the parties is dissolved.
2.
The Plaintiff shall forfeit his share of the
Defendant’s Pension Interest.
3.
The parental
responsibilities and rights with regards to the care of the minor
children,
L T
and
T T
,
as contemplated in
Section 18(2)(a)
of the Children’s Act, Act
38 of 2005, are awarded to both parties.
4.
The specific parental
rights and responsibilities in respect of the primary residence of
the minor children as contemplated in Section
18(2)(b) of the
Children’s Act, Act 38 of 2005, are awarded to the Plaintiff .
5.
The specific parental
rights and responsibilities in respect of contact with the minor
children as contemplated in Section 18(2)(b)
of the Children’s
Act, Act 38 of 2005, are awarded to the Defendant in the following
manner
5.1
The Defendant may take
the children with her every second weekend.
5.2
Short holidays to
alternate between the parties.
5.3
Half of every long
holiday and Christmas to alternate between the parties.
5.4
The Defendant shall be
entitled to take the children with her for five hours on each of
their birthdays, and for the entire day
on Mother’s Day and on
the Defendant’s birthday if such days do not fall on the
regular contact days.
5.5
The Defendant shall be
entitled to have telephonic contact with the children at all
reasonable times.
5.6
The parental rights and
responsibilities with regards to guardianship of the minor children
as contemplated in Section 18(2)(c)
and 18(3) of the Children’s
Act, Act 38 of 2005, are awarded to the parties jointly.
6.
The Defendant is
ordered to pay maintenance of R2000.00 per month per child to the
Plaintiff and to keep the two minor children
on her Medical Aid.
7.
Each party is to pay
its own costs.
________________
MURRAY
AJ
For
the Plaintiff:
Adv A P Berry
Instructed by
Mrs A Conradie
Attorney for the
Plaintiff
Conradie
Attorneys
10 Strauss Street
Universitas
BLOEMFONTEIN
For
the Defendant:
Mr
N W Phalatsi
Attorney for the
Defendant
Phalatsi & Partners
2
nd
Floor, Metropolitan Bldg
96 Henry Street
BLOEMFONTEIN
[1]
S 7(1)(a)(i)
The nature of
the personal relationship between the child and the parents, or any
specific parent.
[2]
S 7(1)(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.
[3]
S 7(1)(c)
The capacity of
the parents or any specific parent to provide for the needs of the
child, including
emotional
and intellectual needs.
[4]
S 7(1)(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 any …
care-giver or person
with
whom the child has been living.
[5]
S 7(1)(e)
The practical
difficulty and expense for a child to have contact.
[6]
S 7(1)(f)
The possibility
to maintain a connection with his or her family, extended family,
culture or
tradition.
[7]
S 7(1)(g)
The child’s
(i) age, maturity and stage of development, (ii) gender, (iii)
background, and (iv) any
other relevant
characteristics of the child.
[8]
S 7(1)(h)
The child’s
physical and emotional security and his or her intellectual,
emotional, social and
cultural development.
[9]
2007 (5) SA
94
(SCA0 at par [14]
[10]
1998 (4) SA
95
(O) at 101 B – D/E
[11]
1996 (3) SA 509
(O) at p.515
[12]
1998 (4) SA
169
(C) at p 176
[13]
(6208/2014)
[2015] ZAGPPHC 728 (16 October 2015)
[14]
1991 (1) SA
265 (W)
[15]
2011 (1) SA
545 (GNP)
[16]
(600/2015)
[2016] ZASCA 162
(4 November 2016)
[17]
1993 (4) SA
720 (A)
[18]
(KZD)
(Unreported case no 7241/2002 (14 July 2008)
[19]
1989 (1) SA
597 (K)
[20]
Supra.