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[2016] ZAGPPHC 1195
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O.G v T.G (69803/2014) [2016] ZAGPPHC 1195 (22 November 2016)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
N0:69803/2014
Date:
22.11.2016
Reportable: No
Of
interest to other judges: No
Revised.
In
the matter between:
O
G
PLAINTIFF
and
T
G
DEFENDANT
JUDGMENT
RANCHOD
J
[1.]
In this matter the plaintiff has launched divorce proceedings against
the defendant who has instituted a counterclaim.
[2.]
Both parties agree that the marriage has irretrievably broken down
and a divorce order should be obtained. They also agree
that as they
are married in community of property there should be division of the
joint estate which should include equal division
of both parties'
pension benefits.
[3.]
They also agree that both parties should retain full parental rights
and responsibilities in respect of the minor children.
[4.]
The main issue in dispute is the residency of the minor children born
of the marriage between the parties. There are five children,
but the
eldest has since attained majority. The other four children are
currently aged 16, 15 and twins aged 9. The 16 year old
is a girl,
the 15 year old a boy and the twins are a boy and a girl
respectively.
[5.]
It is therefore not necessary for me to traverse the causes of the
breakdown of the marriage in any detail except insofar as
they may be
relevant to the issue of the residency of the minor children.
[6.]
The trial proceeded over almost three days and much time was spent in
leading evidence as to who would be the better parent
to be awarded
primary residency and care of the minors. The major child has elected
to live with his father, the defendant.
[7.]
In essence then, this Court has to determine the following issues
which are in dispute between the parties:
7.1
In whose primary care the minor children should be placed;
7.2
Contact rights of the non-custodian parent;
7.3
The quantum of maintenance for the minor children; and
7.4
Whether the plaintiff is entitled to rehabilitative
maintenance.
The
best interest of the minor child principle
[8.]
A child's best interests
are of paramount importance in matters concerning the child
[1]
.
In all matters concerning the care, protection and well being of
a child the standard that the child's best interest is of
paramount
importance, must be applied
[2]
.
This standard is firmly established in international law
[3]
.
[9.]
The Children's Act provides, in section 7(1), factors that must be
taken into consideration where relevant, namely:
(a)
the nature of the personal relationship between-
i.
the child and the parents, or any specific parent; and
ii.
the child and any other care-giver or person relevant in those
circumstances;
(b)
the attitude of the parents, or any specific parent, towards-
i. the child; and
ii.
the exercise of parental responsibilities and rights in respect of
the child;
(c)
the capacity of the parents, or any specific parent, or of any other
care giver or person, to provide for the needs of
the child,
including emotional and intellectual needs;
(d)
the likely effect on the child of any change in the child's
circumstances, including the likely effect on the child of any
separation from-
i. both or either of the
parents; or
ii.
any brother or sister or other child, or any other care-giver or
person, with whom the child has been living;
(e)
the practical difficulty and expense of a child having contact with
the parents, or any specific parent, and whether that difficulty
or
expense will substantially affect the child's right to maintain
personal relations and direct contact with the parents, or any
specific parent, on a regular basis;
(f)
the need for the child-
i. to remain in the care
of his or her parent, family and extended family; and
ii.
to maintain a connection with his or her family, extended family,
culture or tradition;
(g)
the child's-
i. age, maturity and
stage of development;
ii.
gender;
iii.
background; and
iv.
any other relevant characteristics of the child;
(h)
the child's physical and emotional security and his or her
intellectual, emotional, social and cultural development;
(i)
any disability that a child may have;
(j)
any chronic illness from which a child may suffer;
(k)
the need for a child to be brought up within a stable family
environment and, where this is not possible, in an environment
resembling as closely as possible a caring family environment;
(l)
the need to protect the child from any physical or psychological harm
that may be caused by-
i. subjecting the child
to maltreatment, abuse, neglect, exploitation or degradation or
exposing the child to violence or exploitation
or other harmful
behaviour; or
ii.
exposing the child to maltreatment, abuse, degradation,
ill-treatment, violence or harmful behaviour towards another person;
(m)
any family violence involving the child or a family member of the
child; and
(n)
which action or decision would avoid or minimise further legal or
administrative proceedings in relation to the child.
[10.] It is evident that
the parties have had an acrimonious relationship during their
marriage of some 23 years. The plaintiff
alleges she has been
verbally, emotionally and physically abused by the defendant who
denies it. She says this was especially the
case during the first
five years of their marriage when she could not conceive a child. The
plaintiff testified that she was admitted
to a clinic for treatment
for depression, during September, 2014 for about a month. On her
discharge she left the common home of
the parties. She said during
her treatment she was taught to stand up for herself and learnt
coping skills which enabled her to
get out of the abusive
relationship.
[11.] She left the common
home with the three younger children and took with her various items
of furniture and appliances which,
she said, she required for the
sake of the children. She had also gone to fetch the two other
children from the school they were
attending but was prevented from
doing so by the defendant. She says she stayed with the three younger
children for about a year.
During this time she supported the younger
children but the defendant paid all the children's school fees and
for their clothing.
[12.] The plaintiff
issued summons on 19 September 2014. In November 2014 she launched an
application in terms of Rule 43 of the
Uniform Rules against the
defendant for payment of interim maintenance. On 5 November 2014
Basson J granted an order
pendente lite
in terms of which the
plaintiff was awarded care and primary residence of the minor
children born of the marriage, while defendant
was awarded a right of
reasonable contact with the minor children at all reasonable times.
The defendant was ordered to pay R21
865.00 per month as maintenance
for the minor children and a provisional contribution of R1 500.00
per month towards the plaintiff's
legal costs. All the payments were
to commence on or before 30 November 2014.
[13.] Plaintiff says
defendant never complied with the court order and on 19 August 2015
she obtained a further order, which was
granted by Magardie AJ in
which,
inter alia,
it was ordered that the three youngest
children will reside with the plaintiff and the two older ones with
the defendant pending
a report from the Family Advocate. The
defendant was ordered to continue to pay all education related fees
and costs of all the
children including extra lessons and after care
costs of the children. The defendant was also ordered to pay R2
500.00 per month
per child as maintenance for the three children in
the care of the plaintiff.
[14.] Plaintiff says the
defendant paid for the education related costs as per the court order
but failed to pay the monthly maintenance
of R2 500.00 per child.
[15.] It bears mentioning
that the plaintiff was employed at the South African Revenue Service
(SARS) during this period until she
resigned in August, 2015. She
says the reason was that she could not cope at work and also because
of the pressure of coping with
having to support the children.
[16.] The defendant
thereafter launched an application during October, 2015 in terms of
Rule 43(6) seeking a variation of the order
granted by Magardie AJ.
He alleged that the plaintiff was interfering with and frustrating
his rights of access to the three minor
children who were residing
with her, and also when he wanted to assist the children with their
school work. He said as a result
of him being unable to assist the
children the children were suffering academically. He also said the
school had contacted the
plaintiff but to no avail hence they
contacted him and asked him to intervene. He was advised by the
school teacher of the twins
that they be seen by an educational
psychologist, who later had a meeting with the plaintiff so that she
could take the children
for further consultations. Defendant says
plaintiff did not and the children continued to suffer. The defendant
sought an order
that, pending the divorce action, he be awarded the
residency of all the children subject to reasonable contact rights of
the plaintiff
and that the plaintiff contribute R2 500.00 per month
per child towards maintenance of the children.
[17.] During the trial
the plaintiff disputed these allegations. She said she knew the twins
- especially Thulani - had learning
problems but she did all she
could including taking Thulani for psychotherapy but neither of them
passed grade 3 that year. The
defendant conceded under
cross-examination that plaintiff may not have been the cause of the
children's poor performance.
[18.] Phatudi J heard the
variation application and on 12 December 2015 made an order retaining
the status
quo
regarding the residency of the children as
ordered by Magardie AJ previously. It was also ordered that the
defendant continue to
pay R2 500.00 per month per child as
maintenance including that all arrears since August 2015 also be
paid. However, as far as
the educational costs were concerned it was
ordered that plaintiff and defendant each contribute equally in this
regard. It was
also ordered that the defendant retain all the minor
children on his medical aid scheme and pay any shortfalls not covered
by the
scheme. The defendant was also ordered to contribute R4 500.00
per month towards the rental for accommodation of the plaintiff until
dissolution of the marriage. During the trail defendant said he did
not belong to a medical aid scheme.
[19.] During the course
of the trial, it emerged that the eldest child has since come of age
and is a major. The dispute about primary
care and residency
therefore relates to the remaining four children. It is also not in
dispute that M. the second eldest child
(a girl) left the defendant
in January 2016 and went to live with the plaintiff. Plaintiff
testified that M. told her she was not
happy living with her father
and that she had made a mistake in doing so.
[20.] In April, 2016 the
plaintiff moved back into the common home with the children who had
hitherto been living with her. At the
time of the trial the family
was still living together albeit, from the evidence of both the
plaintiff and defendant, in a hostile
atmosphere in which neither of
them talks to the other. Plaintiff says she was forced to move back
into the common home as she
could not make ends meet, more so because
the defendant was not making the cash contributions for the
maintenance of the minor
children in accordance with the previous
court order. She said she did not want to lower the living standards
of the children.
[21.] Although the issue
about the primary care and residency of the children was apparently
referred to the Family Advocate in
early 2015 already and an
interview was conducted by the Family Advocate together with a Family
Counsellor during February 2015,
when the matter came before Magardie
AJ the report had not yet been available. The learned Judge,
inter
alia,
ordered on 19 August 2015 that the report be obtained
urgently.
[22.] The Family
Counsellor says she and the Family Advocate together conducted a
joint interview with the parties on 10 February
2015. Thereafter the
Family Counsellor interviewed two of the children on 10th February
2015 and the other three on 25 February
2015. The report is dated 2
October 2015 and the report of the Family Counsellor attached to it
is dated 30 September 2015.
[23.] The Family
Counsellor and the Family Advocate recommended that all the children
should reside with the defendant as the siblings
have close
relationships with each other and it is not in their best interests
to keep the then current arrangements in place where
three children
resided with the plaintiff and two with the defendant. However, the
Family Advocate's report is somewhat outdated
in that since then M.
had moved in with her mother and thereafter the plaintiff moved in
with the defendant together with the three
children in her care. But
of importance in that report is that it is undesirable that the
siblings be kept apart and that there
should be stability in their
lives. I should mention that the plaintiff testified she was not
happy with the Family Advocate's
report and wanted to obtain another
independent expert's report. However, she had not done so by the time
of the trial, apparently
because she was not in a financial position
to do so. I am not entirely persuaded by this explanation as she had
received a lump
sum payment of about R143 000.00, being the proceeds
of her pension benefit from SARS upon her resignation, a relatively
small
amount of which could have been used for the purpose.
[24.] The Deputy Judge
President (DJP) interviewed the plaintiff and defendant and the
children together with the parties legal
representatives on 6 October
2016, i.e. shortly before the trial for case management purposes. The
content of the interviews have
been noted in a pre-trial minute dated
(erroneously) 6 June 2016. The two older boys indicated a preference
to live with their
father while the older daughter and the twins
wished to live with their mother. However, all the siblings indicated
that they would
prefer to live together.
[25.] Both plaintiff and
defendant (the latter rather belatedly and reluctantly) conceded
during the course of the trial that the
other parent is a good parent
to the children. It is also apparent that the two older boys share a
greater bond with the defendant.
M., the older daughter, left the
defendant to go and live with the plaintiff. Plaintiff said the
defendant was "ugly"
to M. and told her to get out of the
house. Defendant testified that he did not know why she left him to
go and live with the plaintiff.
In my view, he was not being entirely
open with the court. He said the relationship with M. was excellent
until she moved in with
her mother. Since then, he says, the
relationship is not good. This does not explain why she moved out in
the first place. In any
event, there does not seem to be any serious
reason for M. to have moved out of the house so as to preclude her
from moving back
in circumstances where she prefers to be with all
her siblings.
[26.] Much was made
during the trial of the fact that the parties had obtained protection
orders against each other in terms of
the
Domestic Violence Act 116
of 1998
. M. had also obtained such an order against the defendant
with the assistance of the plaintiff. I do not think it is necessary
for me to deal with them as it seems that the parties reacted to each
other in a volatile situation fraught with emotions as was
evident
from the evidence led during the trial. The parties are now in any
event getting divorced which should in all probability
defuse the
situation.
[27.] The plaintiff
alleged that the defendant has abused her verbally, emotionally and
physically which is denied by the defendant.
This issue was not
explored in any depth during the trial. However, there is no evidence
that the defendant has been similarly
abusive towards the children.
As I said earlier, the plaintiff acknowledges that he is a good
parent to the children. He no doubt
seems to have a keen interest in
the children's welfare including their education as is evident, for
example, from the progress
reports of the primary school which Z., X.
and H. attend.
[28.] The Family Advocate
interviewed the parties and provided the following evaluation:
"8.1
The nature
of the relationship between the parties and the minor children"
(Section 7(1)(a))
"From the investigation, the Defendant
seems to have a good relationship with all the minor children. The
Plaintiff's relationship
seems to be not clear as the older children
do not maintain contact even if they are not restricted by the
Plaintiff. The parties
expressed their love and concern for the minor
children.
8.2
The
attitude of the parents towards the children and the exercise of
parental responsibilities and rights in respect of the children"
(Section 7(1)(b)
From the investigation both parties seem to love
and have interest in the upbringing of the minor children.
8.3
'
The capacity of the parents, or any specific parent, or of any
other caregiver or person, to provide for the needs of the children
including emotional and intellectual needs"
(Section 7(1)(c)).
3cm;
text-indent: -1cm; line-height: 150%">
8.3.1
Both parties seem to love and have interest in the upbringing of the
minor children. Both parents are able to exercise their
right and
responsibility towards the children.
8.3.2
Both parties presented as having the ability to care and provide for
the needs of the minor children and they are also motivated
to care
for them. The Defendant seems to be able to monitor the growth and
the development as well as physical and mental wellbeing
of the
children. From the information gathered it appears that the Defendant
plays an important role in the education of the children
as he was
attending to all the educational needs of the children. This was
supported by the older minor children who raised concerns
about
siblings who are residing with their mother regarding their
education.
8.3.3
The Plaintiff did not raise any concerns that the Defendant can harm
or put the children in a dangerous situation. It appears
that the
role that the Plaintiff plays in the upbringing of the children was
limited due to other commitments.
8.3.4
In conclusion, the undersigned believe that the Defendant is in a
position to enable the children to experience success at
school,
provide social support that can promote social opportunities for the
children and able to provide for their basic needs.
The undersigned
believe that it would be in the best interest of the children to
reside with the Defendant (father) and maintain
regular contact with
the Plaintiff (mother). The Defendant seems to be able to provide
guidance and set boundaries for the children.
8.3.5
In respect the allegations made by the Defendant that the school
complained about the progress of the children, the undersigned
requested a progress report. However, the school could not provide
with the information because the class teacher of the children
was
off
sick until further notice.
8.4 "
The
children's age, maturity and stage of development; gender;
background"
(Section 7
(
1
)(g))
Based
on the information gathered, the older minor children seem to be
matured enough to effectively participate in the process.
The two
minor children who are residing with the Defendant clearly stated
that they are happy and comfortable to reside with the
Defendant. The
two minor children who reside with Plaintiff seems to miss their
siblings and their father."
[29.]
It seems clear from a conspectus of the evidence as a whole that the
defendant is in a position to provide a more stable environment
for
the children. He has a stable job. He no doubt takes a keen interest
in the children's education and their homework. The plaintiff
conceded as much when she testified that the children do love their
father, that he encourages them and enjoys their company and
that he
is a good father. This is not to say that the plaintiff is not a good
parent. At pain of repetition the order that I propose
to make is
premised on the principle of the best interests of the minor
children.
[30.]
The plaintiff on the other hand, has no fixed employment or income.
During the trial she said she had made numerous applications
for a
job but only received one job offer. However it is to set up a branch
in Pretoria for an estate agency in the Eastern Cape.
She would have
to receive training as an estate agent and get paid on a commission
basis.
[31.]
The plaintiff has also received training as a traditional healer (a
Sangoma) which entails her sometimes working after hours
during the
week and on weekends.
[32.]
On the principle that it is the best interests of the children that
must be considered it seems to me that primary care and
residency be
awarded to the defendant with reasonable rights of access to the
plaintiff.
[33.]
There is the issue of non-compliance with some of the previous orders
of this Court by the defendant. Court orders are to
be obeyed. No
party may disregard orders validly granted. The defendant has given
no acceptable explanation for his default in
this regard and should
comply with them.
[34.]
The plaintiff seeks rehabilitative maintenance for 72 months
at R5 000.00 per month from the date of the divorce.
In my view
the period for which the plaintiff claims maintenance is excessive. A
period of 12 months would in my view be appropriate.
[35.]
I make the following order:
1.
A decree of divorce is granted.
2.
There shall be division of the joint estate of the plaintiff and
defendant.
3.
Both the plaintiff and defendant are granted full parental
responsibilities and rights with regard to the care of the minor
children as contemplated in
section 18(2)(a)
of the
Children's Act 38
of 2005
.
4.
The specific parental right of residence of the minor children is
awarded to the defendant.
5.
The specific parental responsibilities and rights with regard to
contact with the minor children as contemplated in
section 18(2)(b)
of the
Children's Act 38 of 2005
is awarded to the plaintiff as
follows:
i. Every alternate
weekend from Friday 17:00 to Sunday 17:00.
ii.
Alternate short school holidays and half of the long school holidays
with the first half and second half also to alternate between
the
plaintiff and defendant.
iii.
Regular telephonic and Skype contact.
iv.
The parties are to share special days: the minor children are to
spend the day with the father on Father's day and on the birthday
of
the father and the day with the mother on Mother's day and on the
birthday of the mother.
6.
The parental rights and responsibilities with regard to the
guardianship of the minor children as contemplated in
section
18(2)(c)
and
18
(3) of the
Children's Act 38 of 2005
is awarded to
both parties.
7.
The defendant is to pay the plaintiff rehabilitative maintenance in
the amount of R5 000.00 per month for a period of 12 months
commencing from the 7th December 2016.
8.
The plaintiff is to pay fifty-percent of the proceeds of her
Government Employees Pension Fund to the defendant.
9.
The plaintiff is entitled to payment of an amount equal to fifty
percent of the defendant's net pensionable interest in
the Pension
Fund of which he is a member calculated as at date of divorce and
payable in accordance with the relevant provisions
of the said
Pension Fund which is ordered to note the plaintiff's interest in the
pensionable interest.
10.
Each party is to pay his or her own costs.
_______________________
RANCHOD
J
JUDGE
OF THE HIGH COURT
Appearances:
Counsel
on behalf of Plaintiff : Adv N Moses
Instructed
by :Maluleka Msimang & Associates
Counsel
on behalf of Defendant : Adv F.C Lamprecht
Instructed
by : Shapiro & Ledwaba Inc.
Date
heard :28 October 2016
Date
delivered :22 November 2016
[1]
Section 28(2) of the Constitution of the Republic of South Africa,
1996.
[2]
Section 9 of the Children’s Act 28 of 2005
[3]
Commentary on the Children’s Act- CJ Davel & A M Skelton,
2-10: [Revision Service 2. 2012].