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[2009] ZAGPPHC 317
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J.B.K. v M.M.K. (5890/06) [2009] ZAGPPHC 317 (27 August 2009)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
NORTH
GAUTENG DIVISION, PRETORIA
CASE NUMBER: 5890/06
DATE:
27/8/2009
J
.B.
K
.
P
LAINTIFF
V
M
.
M
.
K
.
DEFENDANT
Civil
Trial:
Makhafola
AJ
JUDGMENT
MAKHAFOLA
AJ:
INTRODUCTION:
1.
This is an opposed
divorce matter where there is no deed of settlement. The plaintiff
filed divorce papers on 23 February 2006 for
the following relief:
(1)
a decree of divorce;
(2)
an order that the
custody of the three minor children born between the parties be
awarded to the plaintiff;
(3)
an order that the
defendant pay maintenance in respect of the three minor children at
the rate of R750.00 (seven hundred and fifty
rand) per month per
child;
(4)
an order that the
defendant forfeit the entire patrimonial benefits arising out of the
marriage in community of property in favour
of
the
plaintiff;
(5)
and that the
defendant be ordered to transfer his half share of the immovable
property situated at [……..] into the
name of the
plaintiff and to sign all necessary documentation on demand for this
purpose, failing which the Sheriff for the district
of Pretoria South
West be and is hereby authorised to sign such documentation on the
defendant;
(6)
costs of suit;
(7)
further and/or
alternative relief.
2.
From the court file
it shows that subsequent to the divorce proceedings a Rule 43
application was launched on 26 March 2006. An
order relating to the
application was granted in favour of the defendant who has opposed
the application. It was submitted on behalf
of the plaintiff that the
order was obtained by default. The defendant did not dispute that.
3.
It was further
submitted that there is a rescission application against the default
judgment and that it is opposed by the defendant.
The rescission
application is still pending. References were made to the affidavits
relating to the Rule 43 application and further
to the affidavit
resisting rescission.
4.
Apart from the facts
in dispute relating to the breakdown of the marriage and other
concomitant considerations, the main and crucial
dispute to be
decided is the care, protection and wellbeing of the children born
during the subsistence of the marriage of the
parties, including
their residence and maintenance.
5.
From the evidence of
the plaintiff it is dear that she has created comfortable
circumstances for all the children by securing accommodation
that can
house all the children and herself. The dwelling is not far from
where Koketso and Sechaba live with the defendant. Further,
from her
evidence the plaintiff was hindered to visit the two minor children.
She is in gainful employment, she pays for the school
fees, medical
aid, transport for the children and she is capable to maintain all
the children including her eldest daughter without
the assistance of
the defendant.
6.
She works overtime
to earn more money for the maintenance of the family. She is a
professional nurse with sufficient Qualifications
in a secured
employment in the Department of Health. She has kept steadfast in her
viva voce
evidence
as in her particulars of claim and Rule 43 application, her claim to
have the care and residence of all the minor children.
7.
The plaintiff is the
biological mother of all her children including her first-born
daughter. The consideration to keep these children
together and not
separate them is conducive to interaction and the children knowing
each other. The sons born of the marriage between
the plaintiff and
the defendant, require to be closer to their half-sister to know her
better and vice versa.
8.
There is no evidence
that the plaintiff is an unfit mother to care for the children. She
was never engaged in any criminality that
could have in the past
embarrassed her own children.
9.
On the other hand,
the plaintiff has corroborated the evidence of the defendant that he
is a good father to the children. They are
always clean and he
personally cares for them. He has claimed in his plea and
counter-claim that he is unemployed. At paragraph
8 of the
counter-claim he has alleged to have been unemployed for 15 years
with no prospects of finding employment.
10.
He has admitted at
paragraph 11 of his answering affidavit resisting Rule 43 application
that “some years ago he used to habitually
smoke “cannabis”
and that he was arrested for possession of dagga.” He has also
admitted in the same affidavit
to using it but stated that he has
since stopped.
11.
At the same time the
defendant has contradicted his plea, counterclaim and averments
of being unemployed during his evidence
in court. He stated that he
is running a fruit market which is operated by an employee. It
generates an income to the tune of ±
R1300.00 sometimes
depending on the circumstances every month.
12.
He stated that he
has no future plans of housing the children should the court order
division of the joint estate of the common
house he co- owns with the
plaintiff. He will have to decide when he receives his share. This
state of affairs militates against
him as being capable to offer
housing if the divorce is finalised.
13.
The defendant has no
medical aid, the existing one is paid by the plaintiff. If the
divorce is finalised the children’s health,
well-being and
development need to continue. From the evidence before the court the
plaintiff has demonstrated that with her means
she can achieve same
after the divorce is finalised. The evidence of the defendant does
not indicate same.
14.
After the divorce is
finalised, it is difficult to infer from the evidence before court
that Section 33 (l)-(4) can be successfully
realised whilst the
defendant is unemployed or if (indeed) he runs a fruit and vegetable
market as he had verbally alleged. In
the circumstances of the facts
before court the defendant is not in a position to house, maintain or
provide related sendees to
all the children of the marriage. The
plaintiff is in a position to do so.
THE
LAW
:
15.
Section 17, 18, 19
and 20 of the Children’s Act 38, 2005 spell out clearly the
full parental responsibilities and rights of
mothers and fathers of
the children.
16.
Sections 7, 8 and 9
of the Act deal with what is required for the best interests of a
child and Section 9 in particular mentions
care, protection and
well-being of a child as being paramount.
17.
In KRITZINGER V
KRITZINGER,
1951 (2) SA 11
(N) the court qualified the paramount
interest of the children as follows: “a Court should be loath
in any case to allow
“the so-called rights of the father”
to interfere with the best interests of the children.”
18.
In MADEN V MADEN
1962 (4) SA 654
(T) at 658 D-E the court deals with the separation of
the children in the following manner: “Another principle
relevant to
the present dispute is that the courts turn their faces
against the separation of the children from one another if such a
course
can possibly be avoided (SIMLEIT V CUNLIFFE,
1940 T.P.D 67).
Now in the present matter the status quo
has this weakness that the
older child is separated from the three others and staying as I
understand, 4 miles away from his mother
in [……]. He is
entirely on his own in this regard.”
19.
In KEMP V KEMP
[1958
(3)] SA 736
(D & C.L.D) at 737H the court stated the following:
“
A
common law duty rests upon
divorced parents to maintain a child of the dissolved marriage. The
incidence of this duty in respect
of each depends upon their relative
means and circumstances and the needs of the child from time to time.
The true position appears
to be that the existence of the duty is not
dependent upon the child being under a certain age, but continues
even after majority
and remains operative, e.g. in the case of a
cripple unable to fend for himself (cf Spiro, Law of Parent and
child, p246).”
20.
I cannot be
persuaded otherwise than I would by all the considered facts before
me do, to apply the law to the proven facts and
find as follows:
(1)
the children’s
interests would best be served by granting the plaintiff the primary
residence of Kagiso, Koketso and Sechaba;
(2)
The plaintiff has
sufficient means of housing and maintenance to sustain the livelihood
of all the children if the primary care
and residence is given to
her;
(3)
the defendant on his
own version, has no plan of how to house, maintain or pay for the
minor children’s school fees thereof
unless he receives his
share of the joint estate;
(4)
the children in the
circumstances should not be separated because they need to closely
interact with one another and with the plaintiffs
daughter who is
their half-sister;
(5)
the
defendant “plays lotto when he can afford to buy a ticket
costing R2.50 and he sometimes gets lucky and wins little money.
Neither of these can be called an income” (quote extracted from
the defendant’s answering affidavit resisting rescission
application against Rule 43 at page 5 paragraph 9.1 thereof); Vide:
Exhibit “C”
(6)
the defendant relies
on the pity of some of his relatives which they have on him and the
minor children to give them little money
when they visit them. (quote
extracted from the defendant’s answering affidavit resisting
rescission application against
Rule 43 at page 5 paragraph 9.1
thereof);
Vide:
Exhibit “C”
(7)
the defendant who
lives with the two minor children cannot afford R4000.00’s
worth of groceries as he estimates as reasonably
needed by them.
(quote extracted from the defendant’s answering affidavit
resisting rescission application against Rule 43
at page 6 paragraph
9.5 thereof);
Vide:
Exhibit “C”
(8)
the defendant’s
credibility has been destroyed by material contradictions between his
viva voce
evidence
and his plea, counter-claim, Rule 43 answering affidavit and his
affidavit resisting Rule 43 rescission application;
21.
Both
counsel have been of assistance in their arguments. The plaintiff’s
heads of arguments also augmented my research on
authorities. I thank
both counsel for their assistance.
22.
In the result, the
following order is granted:
(a)
a decree of divorce;
(b)
the plaintiff and
the defendant shall retain parental responsibilities and rights in
respect of the minor children born of their
marriage subject thereto
that the primary residence and care shall be with the plaintiff;
(c)
the defendant shall be entitled to reasonable contact with the
children at all reasonable times, including alternate weekends,
alternate public holidays, half of each long school holiday the’
Christmas portion is to rotate, each alternate short school
holiday and reasonable telephonic
contact;
(d)
the defendant is
ordered to contribute towards the maintenance of the minor children
R1000.00 per month per child;
(e)
division of the
joint estate;
(f)
costs are to be paid
out of the joint estate of the parties;
(g)
the defendant’s
claims are dismiss
k.
MAKHAFOLA (AJ)
ACTING
JUDGE OF THE HIGH COURT