THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case no: 1011/2022
In the matter between:
Z D E APPLICANT
and
C E RESPONDENT
Neutral citation: Z D E v C E (1011/2022) [2024] ZASCA 159 (18
November 2024)
Coram: MABINDLA-BOQWANA, MOLEFE and KEIGHTLEY JJA and
BAARTMAN and DOLAMO AJJA
Heard: 2 September 2024
Delivered: 18 November 2024
Summary: Family law – divorce proceedings – primary residence, care and
contact of a minor child provided in settlement agreement – duty of the court to
interfere as upper guardian of minor children – best interests of a minor child
paramount – application for leave to appeal – referral for oral argument in terms
of s 17(2)(d) of the Superior Courts Act 10 of 2013.
2
ORDER
On appeal from: Gauteng Division of the High Court , Pretoria (Haupt AJ,
sitting as court of first instance):
The application for leave to appeal is refused.
JUDGMENT
Molefe JA ( Mabindla-Boqwana and Keightley JJA and Baartman and
Dolamo AJJA concurring):
[1] This is an application for leave to appeal against the judgment and order
of the Gauteng Division of the High Court, Pretoria (the high court) , which
refused to endorse the divorce settlement agreement concluded by the applicant,
Mr E and the respondent, Mrs E , awarding primary residence and care of their
minor child (A) to Mr E. The court granted the primary residence and care of A
to Mrs E. It further awarded costs against Mr E, to be paid from his share of the
communal estate.
[2] Mr E applied for leave to appeal against the order of the high court which
was refused. On petition to this Court, his application for leave to appeal was
referred for oral argument in terms of s 17(2)(d) of the Superior Courts Act 10
of 2013, upon the terms that the parties should be prepared to address the merits
of the appeal if required. Mrs E did not oppose the a pplication for leave to
appeal.
3
[3] The facts pertaining to this matter are as follows . Mr and Mrs E became
romantically involved in 2018 and moved in together. At that stage they were
both employed. Soon thereafter they got engaged. On 19 July 2019, a girl child
was born to them in Lephalale, Limpopo Province . The parties subsequently
got married in community of property on 30 January 2020. They resided with
A in Lephalale as Mr E was employed at Medupi Power Station. They agreed
that Mrs E would be a full-time stay-at-home mother to look after A whom she
breastfed. A started attending the creche in the morning s from the age of 15
months.
[4] During Se ptember 2021, the marriage relationship between the parties
irretrievably broke down. This was after Mrs E informed Mr E that she no longer
wished to continue with the marriage and wanted a divorce. On 1 October 2021,
Mr E removed A from the common home to his parental home in
Vanderbijlpark, Gauteng Province without Mrs E’s consent. He permanently
relocated to Vanderbijlpark at the beginning of November 2021, leaving Mrs E
who remained in Lephalale.
[5] On 7 October 2021 , Mr E instituted divorce proceedings against Mrs E.
Amongst other prayers, he sought forfeiture of Mrs E’s right to share in the
communal estate. This, he alleged was due to substantial misconduct by Mrs E
which gave rise to the breakdown in their marriage. He also prayed for the
primary residence and care of A to be awarded in his favour. At the time of the
issuing of the summons, Mrs E was employed as a waitress at Mik e’s Sports
Bar.
[6] On 4 November 2021, the parties signed a settlement agreement,
providing, amongst other things, that the primary residence and care of A would
vest with Mr E . This was made subject to Mrs E’s contact rights including
4
removal of A every alternative Friday until Sunday. Mr E was , at that time ,
permanently residing with A and his parents in Vanderbijlpark, since he
removed her from the common home. While noting some reservations that the
contact was not age appropriate, the Family Advocate did not endorse the
settlement agreement.
[7] The matter served in the unopposed divorce court on 13 June 2022. On
that day Mrs E protested against the settlement agreement and informed the high
court that she was coerced into signing it without any legal representation. After
hearing short oral evidence from both parties, the high court referred the matter
to a special trial, which was set down to commence on 12 July 2022, for the
purpose of determining A’s best interests. The office of the Family Advocate
was requested to assist the high court with an urgent investigation and report.
[8] Mrs E filed a plea and counterclaim on 29 June 2020. She admitted the
breakdown of the marriage but denied that she was the cause of it. She sought,
inter alia, primary residence and care of A to be granted to her.
[9] On 14 July 2022, the high court gave an order that , pending the
finalisation of the matter, A would remain in Mr E’s care at the parental
grandparents’ residence and Mrs E would exercise contact visits every weekend
from Friday to Monday. Mr E was to transport A for the contact visits with
Mrs E.
[10] The special trial ran for seven days. Both parties gave evidence and called
witnesses. In summary, Mr E testified that he resided at his parental home in
Vanderbijlpark but worked at Medupi Power Station, approximately 450
kilometres away from his residence. His mother assisted in looking after A when
the child was not at the crèche. He further testified that he was the primary
5
breadwinner a nd t ook care of all A’s needs and d id not need any financial
contribution from Mrs E towards A’s maintenance. In addition, Mrs E was not
interested in A as she wanted to pursue ‘her young life ’. She also could not
provide safety and stability for her. He accused Mrs E of having been addicted
to online gambling of a violent nature, while she lived with A and of neglecting
the child and the household. He also alleged that Mrs E had a younger boyfriend
with whom she was expecting a child. According to him, Mrs E was not fit to
care for A.
[11] Mrs E’s summarised testimony was that she had always been the primary
caregiver of A since her birth. She was a stay -at-home mother until Mr E took
away her financial resources after she informed him that she wanted a divorce.
Mr E relocated with A without her consent. He frustrated her contact visits with
A. Due to her financial constraint and being far from Vanderbijlpark, she could
not exercise contact rights frequently. She further testified that she did not have
legal advice and/or representation when she signed the settlement agreement .
She was coerced to sign it by Mr E, who threatened that she would not have any
contact rights with A if she failed to sign the settlement agreement.
[12] The interim and final reports received from the office of the Family
Advocate indicated that A had strong relationships with both parents and a
recommendation was made that the status quo be maintained and that A remain
in the care of Mr E with Mrs E exercising contact rights. The Family Advocate,
after consulting with the parties on two occasion s and observing A for a brief
period, concluded that Mrs E’s circumstances were too uncertain and
unpredictable for the primary care of A to be awarded to her.
[13] The high court rejected the Family Advocate’s recommendation and
found that, on the facts before it, Mr E was not A’s primary caregiver in the past
6
and was not her primary caregiver at the time the matter was heard. On the other
hand, the facts and probabilities supported Mrs E’s version that she was A’s
primary caregiver from birth, until the child was removed from her care and
residence by Mr E. The court also found that the evidence revealed that Mr E
had purchased expensive gaming equipment . He was the author of Mrs E’s
financial ‘instability’ as he had cut her off financially.
[14] The high court further found that A took two to three months before
becoming comfortable at school in Vanderbijlpark. She also took longer than
other children to adjust. Mr E never attended A's functions at the crèche or
activities alone. He always did so with his mother. The court further found that
Mrs E had testified that when she was allowed contact for the first time in
November 2021, A wanted to be breastfed. At that stage she was two years and
four months. The high court granted primary care of A to Mrs E with specific
contact rights granted to Mr E. It refused to endorse the settlement agreement.
An order of costs was also made against Mr E.
[15] This Court must decide whether there are reasonable prospects of success
on appeal. In doing so it must consider whether the high court was correct in
refusing to endorse the settlement agreement. At the hearing of the appeal,
Mr E’s counsel did not quarrel with the fact that high court had the power to
determine whether the arr angement made by the parties, pertaining to the
custody of the child served the best interests of the child. She submitted that
there was no justification emanating from the evidence to remove the child from
Mr E. Accordingly, she argued, the high court should have been satisfied with
the terms of the settlement agreement of 4 November 2021 . Alternatively, it
should have granted primary care of A to Mr E, with reasonable rights of contact
to Mrs E. Mrs E should also have been ordered to contribute a fair and reasonable
7
amount of maintenance towards A. As to costs, counsel submitted that each party
should have been ordered to pay his or her own.
[16] This Court in P v P1 stated that the determination of the best interests of
the child, ‘in any particular case involves the [h]igh [c]ourt making a value
judgment, based on its findings of fact, in the exercise of its inherent jurisdiction
as the upper guardian of minor children’.2 In this regard the court is not looking
for a perfect parent but to find “the least detrimental available alternative for
safeguarding the child’s growth and development.”3
[17] Our Constitution echoes the importance of the concept of the best interests
of the child. Section 28(2) of the Constitution provides that the child’s best
interests are of paramount importance in every matter concerning the child. The
principle of the best interests of the child has also been incorporated in s 9 of the
Children’s Act 38 of 2005.4
[18] Whilst the parties’ right to contract should be respected, in matters dealing
with minor children, the court has a duty to enquire whether any arrangement by
the parties would serve the best interests of A. Even though Mrs E had initially
bound herself to the settlement agreement, the high court, as upper guardian of
A, had a duty to interrogate the facts and the arrangements made in the
agreement insofar as they related to the best interests of A. The court had to be
satisfied that the provisions made for the welfare of A were satisfactory and in
her interest.
1 P v P [2007] ZASCA 47; [2007] 3 All SA 9 (SCA); SCA 2007 (5) 94 (SCA).
2 Ibid para 14.
3 Ibid para 24.
4 Section 9 of the Children’s Act 38 of 2008 provides that the standard to apply to all matters concerning the
care, protection and well-being of a child, is that of the child’s best interests.
8
[19] In addition, Mrs E testified that the agreement was voidable since it was
induced by duress. Her testimony is that Mr E told her that if she refused to sign
the settlement agreement, he would not allow her access and contact with A. As
the validity and the terms of the settlement agreement were in dispute, it was
open t o the high court to pronounce on it. It is unnecessary to make any
determination on the allegation of duress, in view of my findings on the issue of
the best interests of the child.
[20] Counsel for Mr E further submitted that the interim and final reports of
the Family Advocate constituted important documents accessory to the evidence
to determine A’s best interests. Counsel for Mr E argued that the high court
should have relied on the Family Advocate’s report as they witnessed the
interaction between A and each parent. The reports and recommendations of a
Family Advocate are undoubtedly of great assistance to a court in determining
the custody arrangements that will serve the best interests of the child. However,
the court is not bound to follow the said recommendations and retains its own
discretion.5 The court sitting as upper guardian, may as in this case, call evidence
mero motu to assist it in the judicial investigation to establish what is in the
child’s best interests.
[21] The high court concluded that the primary care of A be awarded to Mrs E,
based, largely, on favourable credibility findings in her favour and adverse
credibility findings against Mr E. The high court was mindful not to give one
factor, that of maintaining the status quo of the past nine months, pre-eminence
over other factor s. In sum, the question whether the high court exercised its
discretion judicially in rejecting the settlement agreement and the
5 Van Vuuren v Van Vuuren 1993 (1) SA 163 (T) at 167A-B.
9
recommendations by the Family Advocate should be answered in the
affirmative.
[22] In conclusion , the high court cannot be faulted in how it exercised its
discretion by not following the arrangements made in the settlement agreement
and making its own order that it deemed served the best interests of A. There is
accordingly no misdirection warranting this Court’s interference in that regard.
Nor is there any misdirection in the high court’s assessment of the evidence.
Costs
[23] Counsel for Mr E submitted that this Court should set aside the costs
orders made by the high court that Mr E is to pay for the costs of the action,
including the costs of the special trial out of his portion of the common estate. It
was argued that Mr E was subjected to the special trial not due to any conduct
of his own, but at the direction of the high court, and that the costs order is aimed
at penalising him.
[24] The general rule is well-established that the award of costs is in the
discretion of the court hearing the matter. The high court judgment clearly sets
out the reasoning for the costs order. The order reflect ed the high court’s
displeasure in the way that Mr E approached the court. It found that he did not
play open cards with the court and failed to provide a reasonable or plausible
explanation for the contradictions between his pleadings, his affidavits and his
oral evidence. The court was also unimpressed with the tone emanating from his
correspondence with Mrs E and his testimony. The costs order should therefore
not be interfered with. As Mrs E did not oppose the application for leave to
appeal, no order would be made for costs in this Court.
10
[25] In the result, the application for leave to appeal is refused.
________________________
D S MOLEFE
JUDGE OF APPEAL
11
Appearances
For the applicant: B Bergenthuin
Instructed by: Van Heerden & Kruger Attorneys, Pretoria
Kramer Weihmann Attorneys, Bloemfontein.