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[2009] ZAGPPHC 131
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R v R (1452/2008) [2009] ZAGPPHC 131 (3 November 2009)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH ARRICA
NORTH
GAUTENG, PRETORIA
CASE
NO: 1452/2008
In
the matter between:
O
R
………………………….
Plaintiff
and
N
R
………………………….
Defendant
JUDGMENT
Ismail
AJ :
[1]
The plaintiff in this matter instituted proceedings against the
defendant wherein she sought an order that a decree of divorce
be
granted She also sough an order that care and the primary residence
of the minor child , J, be awarded to her subject to the
defendant's
rights of reasonable contact to the minor child.
[2]
These were the central issues which needed to be determined
together with whether or not an agreement had been reached between
the parties regarding the settlement of the issues between them. The
plaintiff maintained that there was such an agreement and
to that
extent an agreement was drafted and signed by her. When the agreement
was sent to the defendant he reneged on the agreement
and refused to
sign it.
[3]
The parties were married to each other on
10
June
1989
at
Durban in community of property. The parties have two children the
eldest of which is a major studying mechanical engineering
at the
Tshwane technikon. The younger of the two children is presently 13
years old. He is a grade
7
pupil
at the Uitsig primary school. Both children reside with their mother
at [ …. ] Rooihuiskraal (the matrimonial home)
[4]
The defendant conducted his own defence as he was no longer
represented by the firm of attorneys who initially represented him.
[5]
Mrs R, the plaintiff testified and she was the only witness who
testified on behalf of the plaintiff. She stated that she
was
employed at the Department of Public Enterprise. She testified that
in terms of her employment contract her duties dictated
that she
travelled to Cape Town when parliament was in session. This resulted
in her being away from home and not being with her
children
[6]
It was common cause between the parties that the defendant left the
matrimonial residence on the 1 April 2008 and that he
and his wife
have been living apart ever since that date.
[7]
The defendant resides in a secured complex in Centurion The unit
consist of two bedrooms. He shares this unit with a friend.
I was
told that this unit is approximately 5 kms away from the matrimonial
home.
[8]
The
plaintiff stated that she did not want to continue with the marriage
and she described the relationship currently as" we
only speak
to each other when necessary". She was adamant that she would
not allow the present situation to continue and she
sought a divorce
She also stated that she was seeing somebody else and she described
t
he
relationship
as a serious one.
[9]
Mrs R conceded that in the past she was away from home when she
accompanied the minister on an overseas trip for ten days.
She also
had to accompany the minister to parliament. These trips have now
come to an end as she discussed the matter with the
minister. She
stated that she is no longer sessional, meaning that she does not
have to travel and stay away from home as she previously
did.
[10]
During cross-examination the defendant put it to the plaintiff that
she would go away on trips without informing him and
that he would
only find out about her absence when the children told him that their
mother was away He also put it to the plaintiff
that she placed the
responsibility of looking after the minor child on the t
he
elder
child
which
was not fair to the latter
[11]
The family advocates office through the efforts of Mr Martin
Mutloane compiled a report dated 2 March 2009 wherein Mr Mutloane
recommended the following
(a)
both parties retain full parental responsibilities and rights in
respect
of care guardianship and maintenance
(b)
The plaintiff be granted contact towards the minor child
(c)
The defendant be vested with residency of the minor child
The
family counsellor, Ms Mogadi, on the other hand on the question of
residency of the child in her report stated:
'
the court may place the child in the residence of either party The
child has trust in either one of them '
The
minor child had no preference with which parent he resided provided
he was not separated from his elder brother. Both the plaintiff
and
the defendant when they testified agreed that the two children should
not be separated The plaintiff was of the view that if
the younger
child was separated from B it would be detrimental to him as the two
brothers are very close. The defendant expressed
a similar view
[12]
The
plaintiff also stated that she and the defendant adopted the latter's
brother and sister when their parents died She and the
defendant
raised the defendant's two siblings She stated that the defendant was
very rigid in his ways and that he was a very inflexible
and selfish
person
[13]
The
plaintiff requested that she be awarded primary residency of the
minor child as she had a good and open relationship with her
children
furthermore her work conditions had changed materially in that she
was no longer sessional In addition thereto the children
lived with
her in a four bedroom house whereas the defendant resided in a two
bedroom unit which he shared with another person
[14]
The plaintiff closed its case and the defendant thereafter
testified.
[15]
Mr R testified that he was employed at the South
African
Post
Office in Pretoria. He stated that he should be the parent who should
be awarded the primary care and residency of the minor
child
since
he
acted as both mother and father to the child in the plaintiff's
absence. He stated that the plaintiff often returned home late
leaving the minor child in the care of his elder brother or domestic
aid. According to him the plaintiff would not even phone him
in order
to tell him that she needed him to look after the children. Had she
done so he would readily and willingly have agreed
to do so.
[16]
Mr R stated that the plaintiff only changed her routine in the past
few months. He was not convinced that she would not revert
to her old
routine of spending lime away from the children once the court
decided the question of primary care and residency. He
also submitted
that she was employed
in
terms
of
a
contract and that there was no evidence to reflect that the terms of
her contract had changed. Furthermore he submitted that if
the
current minister's portfolio changed the new minister might not be as
sympathetic as the current minister and he/she might
insist on the
plaintiff being sessional again.
[17|
The defendant also submitted that notwithstanding the plaintiff
not having been sessional
for
some
time
she still returned home late leaving J in the care of B. When B
testified he stated that his mother on a couple of
occasions
went
to visit a friend The defendant maintained that the plaintiff was in
all probability visiting her new friend and that she was
not candid
with B in this regard.
[18]
The defendant
was
questioned
about the settlement agreement which he failed to sign. He
was
referred
to a letter he addressed to the Family Advocate wherein he stated:
"
My attorney subsequently indicated that he posted the original
agreement to my postal address for my signature and delivery
to
Shapiro and Shapiro. I checked the box everyday but it did not arrive
until 09
th
August 2008, with the postmark dated 31-7-2008 (refer annexure B for
copies of the e-mail correspondence)
On
Sunday the 3rd August 2008 I changed my mind about signing this
agreement after I carefully considered the demands of my wife's
work
commitments and the reduced time she has to be the primary care-
giver to J and B. Also the fact that the two boys are constantly
alone during her commitments and late nights since my mother-in-law
returned to Durban on 18th July 2008 and would not be returning."
Mr
R was questioned about the agreement which was reached between him
and the plaintiffs attorneys and he responded during cross
examination that the settlement agreement was conditional upon his
signature being appended to the agreement. He also testified
that the
plaintiff was aware of this condition and for that reason she
received half the proceeds of the sale of the farm in the
amount of
R41 000.00 If the agreement was in force than she was obliged to have
returned the proceeds as she was not entitled to
this amount in terms
of the agreement
[19]
The defendant in terms of the letter which he wrote to the Family
Advocate referred to supra in the concluding paragraphs of
the letter
stated the following
"
I share no ill feeling towards my wife and would like her to
consider
the facts of her work commitments and the possible impact it has had
on the lives of our two children over the past two
years
We
as parents have to be selfless in what we do for our children and to
make them the highest priority in terms of care giving I
firmly
believe that J will be correctly placed with me as his primary
care-giver whilst my wife can have full access to him at
her
convenience"
From
the above quoted portion of the letter it is clear that the
defendant's sole cause of concern regarding the issue of primary
care
and residency was that the plaintiff was not at all times available
to care for the children due to her work commitments The
defendant
when he testified stated that the plaintiff was a good mother and
that she adored the children. His only concern was
her absence away
from the minor child and that she placed to much responsibility on B
to look after his brother during her absence.
[20]
The
defendant called B to testify B came to testify immediately after his
lecture was concluded. Mr Haskins noted his displeasure
that the
defendant intended to call his son to testify in his parents divorce
proceedings. The defendant was adamant that he was
only calling B to
testify about his mother's absence away from home and her returning
late at night to the house due to her work
commitments B struck me as
a confident and mature young man who testified that he did not
consider it an obligation to look after
his younger brother during
his mother's absence, however he regarded it as his brotherly duty to
keep an eye on his younger sibling
in his mother's absence. He also
stated that he and his brother had a close relationship. He testified
that his mother spent more
time at home in the recent year than in
the past when her work dictated that she had to travel He also
indicated that he was very
happy at the family home at [ ….
].
APPRAISAL
OF THE EVIDENCE
[21]
I have no doubt that both Mr and Mrs R love their children very much
The report of the family counsellor recommended that they
were both
capable
of
having
primary care and residency
of
the
minor
child
In determining which parent should be vested with primary residency
and care the court has to determine the question of
the
best interest of the child
Section
7 of the Children's Act sets out various factors which a court should
take into account when determining this issue See
Commentary
to the Children Act- C J Davel & AM Skelton 2-4/
2-8
I
do not deem it necessary to mention these factors. The failure to
include these factors into the judgment should not be construed
to
mean that I did not consider them
in
determining
this issue.
[22]
The
leading case dealing with the question
of
the
best interest of the child is the matter
of
McCall
v McCall
1994
(3)
SA
201
(C)
at
205
B-G
where
King
J
set
out the factors which a court should consider when deciding the best
interest
of
a
child. King
J
stated
"
..not in order of importance, and also bearing in mind that there is
a measure of unavoidable overlapping and that some of
the listed
criteria may differ only as to nuance. The criteria are the following
(a)
the love, affection and other emotional ties which exist between
parent and child and the parents' compatibility with the child;
(b)
the capabilities, character and temperament of the parent and the
impact thereof on the child's needs and desires;
(c)
the ability of the parent to communicate with the child and the
parent's insight into, understanding of and sensitivity to the
child's feelings;
(d)
The capacity and disposition of the parent to give the child the
guidance which he requires:
(e)
The stability of the parent to provide tor the basic physical needs
of the child, the so-called creature contorts', such as
food,
clothing, housing and other material needs-generally speaking, the
provision of economic security:
(f)
the ability of the parent to provide for the educational well-being
and security of the child, both religious and secular;
(g)
the ability of the parent to provide for the child's emotional,
psychological, cultural and environmental development:
(h)
the mental and physical health and moral fitness of the parent:
(i)
the stability or otherwise of the child's existing environment,
having regard to the desirability of maintaining the status
quo.
(j)
the desirability or otherwise of keeping siblings together, (k)
the child's preference, if the Court is satisfied that
in
particular
circumstances the child's preference should be
taken
into consideration.
(l)
the desirability or otherwise of applying the doctrine of same sex
matching, particularly here, where a boy of 12 (and Rowan
is almost
12) should be placed in the custody of his father and
(m)
any other factors which is relevant to the particular case which
the Court is concerned '
See
Krasin
v Ogle
[1997]
1 All SA 557
(W) at 567i -569e
An
important factor in determining the best interest of the child as
previously alluded to is that the child is living in the common
home
with his brother and the plaintiff for the past fourteen months ever
since the defendant left the common home He is comfortable
in that
environment and is happy to be with his brother. If he were to be
uprooted from this milieu and be placed into the defendant's
care it
may have a detrimental effect on him and he would have to adjust to
his new surroundings and creature comforts' There was
no evidence
tendered that the child is not coping at school as a result of his
parent's separation It appears that both parents
share the
responsibilities in transporting the child to and from school.
[23]
Mr R submitted that the Family counsellor referred to the doctrine of
same sex matching in paragraph 8.10 of her report and
noted that the
children enjoy the company of the defendant, as they enjoy common
activities. He submitted that this was an important
factor which the
court should consider when it determines the issue of primary care.
Whilst it it a factor which I must consider
I should not look at the
diverse factors in isolation but rather take the totality of factors
into consideration in determining
this issue.
[24]
In my view it would be in the best interest of the minor child if
primary care and responsibilities were awarded to the plaintiff
as
she sacrificed her professional or career interest in order to have
primary care of the minor child. This coupled with what
is stated in
para [22] above leads me to believe that the plaintiff is sincere in
her quest to obtain primary residency of the
minor child and that she
has not mast her sails to suit the wind. It is my considered opinion
that she has sincerely made the necessary
changes in order to qualify
to have the minor child live with her. Having said this it would be
just and equitable in the circumstances
of this case to grant the
defendant liberal visitation rights to the minor child as he had
demonstrated that he is equally suited
to have the child. He set with
the child supervising his homework; cooked for the child, fetched and
dropped the child from and
to school and has a loving and caring
relationship with the minor and B.
The
issue of the settlement agreement
[25]
The plaintiff seeks an order to the effect that the settlement
agreement which the defendant failed to sign be made an order
of
court as he agreed thereto and subsequently changed his mind and
reneged on the agreement The settlement agreement is contained
at
pages 17-26 of the pleadings bundle. I have to some extent dealt with
this
issue
at
para
[18]
above.
Should I find that the agreement
is
valid
then I need not make a finding on the other issues such
as
maintenance
for the children and proprietary right
issues
Having
perused the settlement agreement I noted that the question of
reasonable access to the minor child was only addressed at
paragraph
2.2
thereof
as follows:
'The
care and primary residence of J shall be awarded to the Plaintiff
subject to the Defendant's right of reasonable contact, at
all
reasonable times '
[26]
It was stated by the defendant that he made the proposals at the
meeting held at Shapiro's when the meeting
was
held
with the respective attorneys. This proposal of his was accepted by
the plaintiff and to that end the plaintiff's attorneys
drew up the
agreement and forwarded it to the defendant's attorneys. The
defendant's attorneys in turn forwarded the agreement
to him with the
instruction to sign the agreement and to remit it to Shapiro's. This
begs the question why would the defendant's
attorneys instruct him to
sign t
he
agreement
if there was no discussion and agreement relating to the settlement.
[27]
The probabilities do not support the defendant's contention that the
agreement was a conditional agreement namely subject to
him appending
his signature to it. This explanation which the defendant gave under
cross-examination is opportunistic and disingenous
to say the least.
The truth of the matter is that there were discussions relating to
the matter and that the issues were settled,
however the defendant
had a change of heart as he thought that his wife had reverted to her
old ways of spending time away from
home and therefore changed his
mind.
[28]
For the reasons set out above I am of the considered view that the
agreement was effective and all that it needed was the defendant's
signature and the matter would have proceeded as uncontested
The
issue of
Costs
[29]
Mr Haskins addressed me on the question of costs and he submitted
that I should order that costs be paid from the joint estate
Having
found that the settlement agreement was valid I am bound by what is
contained therein, namely that each party pays its own
costs It might
be argued that the defendant reneged on the agreement and therefore
he should be mulcted to pay the costs. The issue
of costs in such
matters was dealt with in
Bethall
v Bland and Others
1996
(4) SA 472
at 475 E-I where Wunsh J stated:
"
1. Generally speaking a successful litigant is entitled to his or
her costs.
2
Whilst it is quite true that a custody dispute should not be seen
as an adverserial contest in the ordinary sense but rather
as an
enquiry into the best interest of the child, it cannot be denied that
in most cases the litigants are advancing their own
preferences and
seeking satisfaction of their love of the child Often, too. the
papers contain many attacks on the character and
conduct of the
opponent.
3.
On the other hand it is also a consideration that a party should
not be discouraged from putting up a case which he or she.
on broadly
reasonable grounds, thinks to be in the interest of the child for
fear of having costs awarded against him or her if
unsuccessful By
the same token, a party who is. on what turns out to be good grounds,
confident that his or her case will prevail,
should not be
discouraged from taking or resisting action because of the costs
which he or she will incur
4.
However,
bona fide and concerned a party may be, his or her opponent's
judgment of the issues prevails, it is not, in the absence
of the
circumstances justifying it. fair that the opponent should be mulcted
in his or her own costs."
The
defendant in this matter laboured under the belief that he had a
strong case for primary residency of the child particularly
in view
of the Family Advocates recommendation. For this reason I believe
that his insistance in pursuing this matter was not mala
fide but
driven by the best interest of the child.
For
these reasons I am in agreement with the principle set out by Wunsh J
in
Bethell's
matter
[30]
In the circumstances I make the following order:
(a)
a decree of divorce is granted incorporating the settlement agreement
(b)
in so far as the defendant had been paid 50% of the sale of the farm
she should return the proceeds paid to her with interest
at the prime
rate from the date that the amount was paid to her.
(c)
defendant shall have reasonable access to the minor child which shall
include the following.
(1)
he shall have access to the minor child every alternative weekend
commencing from Friday 17h00 until Sunday 17h00;
(2)
During the week when he does not have access to the
minor
child he may fetch the child on Tuesdays and Thursdays at 17h00 and
he should return the child by 20h00
(3)
defendant may spend father's day with the child if it is a non school
day from 09h00 until 17h00;
(4)
defendant shall have the minor child for one half of the school
holidays. The parties shall alternate the school holidays
in
such
a way that plaintiff will have the minor child over Christmas and
defendant have the child over Easter. This procedure will
alternate,
in other words if the minor spent Christmas with the plaintiff in
2009 then the defendant will have the child over Christmas
2010. The
same procedure would apply to Easter Save that neither parent shall
have the child over Easter and Christmas in one year
(5)
The defendant will have telephonic access to the minor child daily
between 17h00 and
1
7h45
on those days that
he
does not have access
(d)
The defendants counter claim is dismissed;
(e)
each party shall pay his / her own costs
Ismail
AJ
Appearances
For
the Plaintiff: Adv Haskins instructed by Shapiro and Shapiro
Pretoria
For the Defendant: In person
Trial
heard on 21 October to 28 October 2009.
Judgment
delivered: 3 November 2009.