W.L v J.R (22524/2019) [2024] ZAWCHC 428 (7 November 2024)

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
(WESTERN CAPE DIVISION, CAPE TOWN)

CASE No: 22524/2019

In the matter between:

W[...] H[...] L[...] Plaintiff

and

J[...] R[...] Defendant


Judgment


Andrews AJ,

Preamble

[1] “I am my daughter’s hero…I am her father…I just want to see my daughter.
That is the only thing I care about”, were the closing remarks of the Defendant in this
opposed divorce action . These are the w ords of an impassioned father wh o

conducted his trial in person on the virtual platform from Italy in this opposed divorce
action.

[2] The Defendant’s Attorneys withdrew as his attorneys of record on 25 April
2024. A virtual judicial case management meeting was conducted on 13 and 14 May
2024. On 16 May 2024, this Court provided written directions for trial in terms of
which the Defendant was directed to attend the hearing in person. It is apposite to
mention that the Court cautioned the Defendant at the judicial case management
hearing that there would potentially be challenges if he were to participate in these
proceedings on the virtual platform. The Court was astute to illuminating the
probable risks and prejudices of the Defendant not being physically present at the
hearing. The Court was alive to the principle of equality of arms 1 and emphasised
that both parties should be treated in a manner which ensures that they are in a
procedurally equal position to make their case2.

[3] On 21 May 2024, being the first day of trial, it became apparent that the
Defendant was not going to attend the trial in person , n otwithstanding the Court’s
directive that the Defendant be present in person for the hearing. It bears mentioning
that the Plaintiff had travelled from Hong Kong to attend the proceedings in person.
The Defendant proffered reasons why he was unable to travel to South Africa, which
was primarily due to financial constraints . The Defendant requested that he be

1 The Helen Suzman Foundation v Judicial Service Commission (145/2015) [2015] ZASCA 161 (2
November 2016).
‘[6] The principle of ‘equality of arms’ is an integral part of the rights to fair trial and access to
Court as well as the due process of the law in civil, criminal and administrative proceedings. Strict
compliance with the principle is required at all stages of the proceedings in order to afford opposing
parties (especially the weaker party) a reasonable opportunity to present their case under conditions
of equality. It is a principle that was jurisprudentially developed by the European Court of Human
Rights but has since been referred to with approval by the Constitutional Court in, inter alia, Bernstein
& others v Bester & others NNO [1996] ZACC 2; 1996 (2) SA 751 (CC) fn 154; Zondi v MEC for
Traditional and Local Government Affairs & others [2004] ZACC 19; 2005 (3) SA 589 (CC) para 63;
and Shilubana & others v Nwamitwa (National Movement of Rural Women and Commission of
Gender Equality as Amici Curiae) [2007] ZACC 14; 2007 (5) SA 650 (CC) para 21. See also Pieter
van Dijk & Godefridus J H Hoof Theory and practice of the European Convention on Human Rights 3
ed (1998) 430. Further see Jason Brickhill & Adrian Friedman ‘Access to Courts’ in Stuart Woolman &
Michael Bishop (eds) Constitutional Law of South Africa 2 ed (Revision Service 6, 2014) at OS 11-07,
59-73.’
2 S v S [2019] ZACC 22; 2019 (6) SA 1 (CC); 2019 (8) BCLR 989 (CC) at para 40.
‘Equality of arms has been explained as an inherent element of the due process of law in both civil
and criminal proceedings. At the core of the concept is that both parties in a specific matter should be
treated in a manner that ensures they are in a procedurally equal position to make their case. In
particular, weaker litigants should have an opportunity to present their case under conditions of
equality.’
afforded the opportunity to participate on the virtual platform. After carefully
considering the submissions made by the parties, the Directions Or der made on 16
May 2024 was reconsidered and set aside. The Defendant was permitted to
participate in the trial proceedings on the virtual platform, subject to certain strict
conditions.

[4] The Court’s approach to writing this judgment is focused on ensuring that the
Defendant, given the unique facts and circumstances of this case, is fully apprised of
the Court’s reasons. For the benefit of the Defendant , the salient aspects of the
evidence have been encapsulated in this judgment, in greater detail than would
ordinarily be necessary in order to assure the Defendant that this Court, in reaching
the ultimate conclusion , considered all the relevant aspects of the evidence. Again,
for the benefit of the D efendant, if there are aspects not included in this judgment, it
does not mean that it was not considered.

[5] Lastly, as will be dealt with later in this judgment, the Rules of Court apply
equally to everyone. Therefore, this Court, inasmuch as the Defendant was granted
much latitude as a lay person, is enjoined to adjudicate the matter fairly, impartially
and most importantly, in the best interest of the parties’ one minor child, S[...] G[…]
R[...] , (“S[...] ”).

Introduction

[6] The Plaintiff instituted relocation proceedings on 23 August 2019 under case
number 14777/2019, as she was desirous to return to Hong Kong and take S[...]
with her. A Settlement Agreement regulating the relocation was entered into between
the parties. The Plaintiff thereafter instituted the divorce action in December 2019, in
terms of which she seeks inter alia , forfeiture of the patrimonial benefits of the
marriage in community of property, and that para graph 3.9 of the Settlement
Agreement be addressed in the divorce action.3


3 Settlement Agreement, para 3.9, page 69.
‘It is recorded that the respondent has indicated that he may be relocating and that the parties have
agreed that, should this eventuate (and the respondent shall inform the applicant forthwith if thi s
happens), the parties will address this in the divorce action.’
[7] The Defendant, opposes the relief sought by the Plaintiff and seeks an order
for division of the joint estate and that effect be given to the Settlement Agreement
entered into between the parties pursuant to the relocation proceedings in his
counterclaim. In and during 2021, the Defendant relocated permanently to Italy
where he currently resides.

Jurisdiction

[8] It is trite that the Court derives its jurisdiction over persons and causes of
action by virtue of Section 21(1) of the Superior Court’s Act4 which states:

‘A division has jurisdiction over all persons residing or being in, and in relation
to all causes arising and all offences triable within, its area of juris diction and all
other matters of which it may according to law take cognizance, and has the
power…’

[9] In terms of Section 2 of the Divorce Act5:

‘A court shall have jurisdiction in a divorce action if the parties are or
either of the parties is—

(a) domiciled in the area of jurisdiction of the court on the date on which
the action is instituted; or

(b) ordinarily resident in the area of jurisdiction of the court on the said
date and have or has been ordinarily resident in the Republic for a
period of not less than one year immediately prior to that date.

(2) A court which has jurisdiction in terms of subsection (1) shall also
have jurisdiction in respect of a claim in reconvention or a counter -
application in the divorce action concerned.


4 Act 10 of 2013.
5 Act 70 of 1979
(3) A court which has jurisdiction in terms of this section in a case where
the parties are or either of the parties is not domiciled in the Republic
shall determine any issue in accordance with the law which would
have been applicable had the parties been domiciled in the area of
jurisdiction of the court concerned on the dat e on which the divorce
action was instituted.

(4) The provisions of this Act shall not derogate from the jurisdiction
which a court has in terms of any other law or the common law.’ (my
emphasis)

[10] Both parties were domiciled within the jurisdiction of the Court when the
action was instituted. It is trite that o nce, jurisdiction has been established, the
Court’s jurisdiction continues until the end of the action even though the ground upon
which jurisdiction was established ceases to exists. 6 The matter of McConnell v
McConnell7 citing Thermo Radiant Oven Sales (Pty) Ltd v Nelspruit Bakeries
(Pty) Ltd and other South African authorities with approval recognised that:

‘This is so even where it is the plaintiff who is responsible for the removal of the
grounds for jurisdiction. See Balfour v Balfour 1922 WLD 133; Strydom v
Strydom 1945 (1) PH B32 (W). It was submitted that the nature of the present
application does not affect this principle, for it is not uncommon in a matrimonial
action for a Court to make an order relating to the custody or guardianship of
minors who are physically outside its area of jurisdiction…’

[11] Section 6 of the Divorce Act 8 enjoins a court to consider whether the
welfare of any minor child in the marriage are the best that it can be effected in the
circumstance. Therefore, the court having regard to the trite legal principles
proceeded with the matter on the basis that:


6 Thermo Radiant Oven Sales (Pty) Ltd v Nelspruit Bakeries (Pty) Ltd 1969 (2) SA 295 (AD) at 310D.
7 1981 (4) SA 300 (Z) 302A – C.
8 Section 6(1) ‘A decree of divorce shall not be granted until the court –
(a) is satisfied that the provisions made or contemplated with regards to the welfare of any minor
or dependent child in the marriage are satisfactory o r are the best that can be effected in the
circumstances...’
(a) The proceedings were initiated out of this court;

(b) The cause of action arose in the jurisdiction of the court;

(c) The Defendant had no objection to the matter proceeding in this court and

(d) The welfare and interest of the minor child required determination.

Issues to be determined

[12] The identified issues to be determined included:

(a) The care and contact provisions that are in the best interest of the parties’
minor child;

(b) The extent to which the parties’ Settlement Agreement in respect of the mino r
child, made an order of Court on 17 September 2020 under case number
14777/2019, is to be varied, if at all;

(c) The quantum of the Defendant’s contribution to the maintenance of the minor
child and

(d) Whether the Defendant is to forfeit his right to the benefi ts of the marriage in
community of property.

Maintenance

[13] At the commencement of the trial, the Plaintiff indicated that she would not
be persisting with her claim that the Defendant contribute towards the minor child’s
maintenance. Plaintiff proposed that the Defendant use the funds to facilitate his
contact with the minor child in Hong Kong.

Factual Background

[14] The Plaintiff is 42 years of age. She was born, raised and educated in Hong
Kong where she qualified as a nurse. The Defendant is a 39-year-old businessman
and South African citizen who relocated permanently to Italy in 2021.

[15] In 2003, the parties briefly met in Italy whilst the Plaintiff was travelling during
her summer holidays as she was on a break from her studies and the Defendant was
visiting his grandfather. After a brief holiday romance, they exchanged a few emails
until 2008 when the Defendant informed the Plaintiff that he was engaged. Early in
January 2018, after receiving an email from the Defendant towards the latter part of
2017, the parties’ relationship rekindled. The Plaintiff then travelled to Cape Town
where the parties spent two weeks together.

[16] Thereafter, t he Plaintiff travelled back to Hong Kong i n mid -January 2018.
The Defendant joined the Plaintiff in Hong Kong on 28 February 2018. Whilst in
Hong Kong, the parties got engaged. The Plaintiff resigned from her job as a senior
registered nurse and put the immovable property that she owned in Hong Ko ng, on
the market for sale.

[17] On 06 May 2018, at a marriage registry situated in Tsim Sha Tsui, Hong
Kong, the parties were married to each other in community of property. The parties
then travelled back to Cape Town in June 2018. Initially they resided in
accommodation rented by the Defendant’s parents but after about 3 months, in
September 2018, they moved into the property situated at D[...] Street, Lakeside
(“the D[...] Street property”), which had been purchased from the proceeds of the
sale of the Plaintiff’s Hong Kong property. A second property, situated in D [...] Court,
Lakeside (“the D [...] Court property”), was also purchased from the proceeds of the
sale of the Plaintiff’s Hong Kong property.

[18] On 1 November 2018, the Plaintiff left the Defendant for Hong Kong, after
some difficulties in the marriage where she stayed for almost 2 months. The Plaintiff
was persuaded to return to Cape Town at the end of 2018. S[...] was born on 20
March 2019. The parties experienced further difficulties in the marriage which
caused the Defendant to leave the D [...] Street common home in June 2019 . There
was an attempt at reconciliation between the parties, which was unsuccessful . As
previously stated, the divorce action was initiated in December 2019.

[19] The Plaintiff expressed her desire to return to Hong Kong with the parties’
minor child in August 2019, which led to the launch of the relocation proceedings on
23 August 2019, after the Defendant initially refused to give his consent. The
Plaintiff appointed Dr I lse van De r Merwe, a Counselling Psychologist, who
recommended that the Plaintiff be able to relocate to Hong Kong with S[...] .9 The
Defendant initially appointed Mr Bernard Altman and thereafter appointed Dr Glyde
Thompson, who in his report dated 16 September 2020, also recommended that the
Plaintiff be able to relocate to Hong Kong with S[...] .10

[20] The relocation application was not argued as the parties entered into a
Settlement Agreement on 17 September 2020, which was made an order of Court.
Since the Plaintiff’s relocation there has been no physical contact between the
Defendant and S[...] . As a result, the Defendant is of t he view that the Plaintiff is in
contempt of the Settlement Agreement. I will return to this aspect later in this
judgment.

The Reasons for the breakdown of the marriage as per the pleadings

[21] It is trite that ‘[a] court may grant a decree of divorce on the ground of the
irretrievable breakdown of a marriage if it is satisfied that the marriage relationship
between the parties to the marriage has reached such a state of disintegration that
there is no reasonable pro spect of the restoration of a normal marriage relationship
between them.’11

[22] The reasons for the irretrievable breakdown of the marriage as summarised
in the Plaintiff’s Particulars of Claim included that12:


9 Index F, Section 12, Psycho-Legal Contact and Care Report, Dr Ilse Van Der Merwe, pages 484 –
502.
10 Index E, pages 271 – 303.
11 Section 4(1) of the Divorce Act 70 of 1979.
12 Index A: Pleadings, para 6, pages 4 - 6.
(a) The Plaintiff lost her trust in the Defendant more particularly that:

(i) the Defendant failed to disclose the marital regime options available for
the parties to regulate their marriage under South African law, advising
her that the only marital regime option was that of being married in
community of property, which was done with the objective of benefiting
himself financially at the expense of the Plaintiff;

(ii) the Defendant dissuaded Plaintiff from taking independent legal advice
when she purchased the two immovable properties in Cape Town,
using her own resources which she had accumulated before the
conclusion of their marriage, allowing hi m to financially benefit
therefrom.

(b) The Defendant conducted himself in a financially abusive manner towards the
Plaintiff in that:

(i) Defendant failed to make any financial contribution whatsoever towards
the acquisition of the immovable properties or towards their
maintenance and/or upkeep;

(ii) Defendant wilfully frustrated the Plaintiff’s ability to generate a rental
income from one of the immovable properties, there by depriving her of
an income upon which she and the minor child were dependent;

(iii) Defendant failed to make meaningful financial contributions towards
the parties’ household and daily living expenses and/or towards the
maintenance needs of their child;

(iv) As a result of the aforegoing, Defendant’s financial circumstances ha d
substantially deteriorated.

(c) The Defendant conducted himself unacceptably towards the Plaintiff during
the marriage by:

(i) Being demeaning and disparaging about the Plaintiff and her culture in
private and before third parties;

(ii) Being verbally and emotionally abusive towards Plaintiff, which caused
her to fear for her own health and safety and

(iii) Demeaning the Plaintiff’s dignity by demanding sexual favours after the
parties separated from one another.

(d) The Defendant vacated the common home in June 2019 and after a failed
attempt at reconciliation, the pa rties have finally separated since December
2019.

(e) The Plaintiff no longer feels any love or affection for the Defendant and has no
interest in the continuation of the marriage.

[23] The Defendant in his plea, admitted that the marriage between the parties
had reached such a state of disintegration that there is no reasonable prospect of the
restoration of a normal marriage relationship, but denied the reasons as suggested
by the Plaintiff. In this regard, the Defendant averred that the marriage between the
parties has broken down for the following reasons:

(a) That the Plaintiff was emotionally and psychologically abusive throughout the
course of the marriage;

(b) The Plaintiff placed unreasonable pressure and demands on the Defendant to
maintain a lifestyle above their means;

(c) The Plaintiff would consistently request the Defendant to vacate the marital
home and frustrate contact between him and S[...] whenever the Defendant
did not meet the Plaintiff’s unreasonable demands;

(d) The Plaintiff’s constant berating and belittling of the Defendant, coupled with
one incident where she physically attacked the Defendant;

(e) There is no meaningful communication between the parties;

(f) The Defendant left the marital home at the Plaintiff’s behest for the final time
on 13 January 2020; and

(g) The Plaintiff made false and unfounded allegations against the Defendant and
applied for an interim protection order against the Defendant, which complaint
was subsequently voluntarily withdrawn.

[24] It is uncontroverted that the marriage relationship between the parties ha s
irretrievably broken down , despite the Defendant’s concession that he still has
residual feelings for Ms L[…].


Forfeiture of the patrimonial benefits of the marriage.

[25] The parties in this matter were married to each other in community of
property on 6 May 2018. It is trite that upon dissolution of a marriage in community of
property, the default position is that the assets of the joint estate are to be divided
equally between the parties. The exception to this rule is provided for in section 9(1)
of the Divorce Act which provides as follows:

‘(1) When a decree of divorce is granted on the ground of the irretrievable
break-down of a marriage the court may make an order that the patrimonial
benefits of the marriage be forfeited by one party in favour of the other, either
wholly or in part, if the court, having regard to the duration of the marriage, the
circumstances which gave rise to the break -down thereof and any substantial
misconduct on the part of either of the parties, is satisfied that, if the order for
forfeiture is not made, the one party will in relation to the other be unduly
benefited.’

[26] In Wijker v Wijker 13, the court adopted the following approach in dealing
with the issue of forfeiture claim:

‘It is obvious from the wording of the section (section 9) that the first step is to
determine whether or not the party against whom the order is sought will in fac t
be benefited. That will be a purely factual issue. Once that has been
established the trial court must determine having regard to the factors
mentioned in the section, whether or not that party will in relation to the other be
unduly benefited if a forfe iture order is not made. Although the second
determination is a value judgment, it is made by the trial court after having
considered the facts failing within the compass of the three factors mentioned in
the section.’14

[27] It is the Plaintiff’s contention that it would be just and equitable that the
Defendant forfeits any patrimonial benefits in the Plaintiff’s favour for the following
reasons:

(a) The Defendant did not make any direct and indirect contributions towards the
acquisition of the assets;

(b) The Defendant did not make any direct and indirect contribution towards the
maintenance or upkeep of the assets;

(c) There has been substantial misconduct on the part of the Defendant towards
the Plaintiff.

[28] Although the Defendant pleaded division of the jointed estate, his primary
focus throughout the hearing of the matter was to secure his contact with S[...] . On
more than one occasion he indicated that he did not really care about the marital
assets and pertinently indicated that “the marital assets are a distant second to me in
terms of importance…”. At some point the Defendant offered the Plaintiff all the

13 1993 (4) SA 720 (A).
14 at 727.
assets so that he could see S[...] , however; because his proposition was rejected,
the Defendant, in his Heads of Argument stated:

‘I would request that I d o not forfeit the marital assets for the specific reason
that I do not believe that this will be the last trial as the plaintiff has never
adhered to the settlement agreement in terms of care & contact & I will need to
use my share to fund future trials. I f she were to win everything, I can
guarantee with complete certainty that I will never hear from her & my daughter
again, as she is completely protected in Hong Kong with no mirror order…’

Marital Regime

[29] The Plaintiff testified that the parties were married to each other in Hong
Kong in 2018 in the Magistrates Court. She orated that she was unaware that she
had other options and receive no legal advice in respect of the other matrimonial
property regimes. According to the Plaintiff, she went with what the Defendant told
her to do as according to him , it was the only way to get married. She stated that if
she knew about other options she would have chosen not to get married in
community of property.

[30] The Defendant on the other han d testified that he married the Plaintiff under
duress as there was a threat to take his passport away. The Plaintiff denied having
cancelled air tickets on two occasions and then reinstating them when the Defendant
agreed to marry her. The Defendant stated that he was concerned about his well -
being and his only recourse was to get married to the Plaintiff.

[31] The Defendant orated that it was the Plaintiff who had arranged for the
marriage to be in community of property and that he found it b azaar that she didn’t
arrange an antenuptial contract and did not protest to the registration of the marriage
in South Africa. The Plaintiff stated that although she organised the wedding, she
was not familiar with family law.

[32] The Court, has regard to what the Plaintiff testified were the reasons why the
parties got marrie d, vis a vis the reasons the Defendant says the parties decided to
get married. Inasmuch as the Defendant does not agree with the submissions made
by Counsel for the Plaintiff regardin g the contradictions highlighted, the evidence in
this regard, in the form of what Dr Thompson recorded in his report as well as what
the Defendant expressed to Harry Trisos cannot be ignored. The explanations
proffered by the Defendant, in my view, appear implausible when considered on the
probabilities and in light of the totality of the evidence. I will deal with these aspects
more fully later in this judgment.

Undue benefit

[33] In considering the matter of forfeiture as a starting point, it is trite that t he
party seeking forfeiture is to show that if an order of forfeiture is not granted, the
party against whom the order is sought will unduly benefit from the benefits derived
from the marriage. The primary consideration is therefore whether any benefit whi ch
might accrue to the Defendant, because of the marriage in community of property,
would be undue.

[34] The Plaintiff testified that t he Defendant promised that he would look after
her financially. She then quit her job and she put her house on the market.
Documentary evidence was provided in relation to the Agreement for Sale and
Purchase of the Plaintiff’s property in Hong Kong, which bears the date of 29 March
2018.15 This property was sold for HK$ 6 800 800. 16 The proceeds of the sale was
sent over to South Africa and paid into the Defendant’s bank account. The amount in
South African currency amounted to R7 376 497. According to the Defendant, he
discouraged the Plaintiff from selling her property in Hong Kong.

[35] The Plaintiff testified that when they were in Hong Kong, he did not pay for
anything, but claimed he was a “slave”. Traditionally it would have been the
Defendant’s responsibility to pay a dowry to her father but she had to do so . The
Defendant however regarded the Plaintiff’s fathers’ demands as being interfering and
tantamount to human trafficking. The Plaintiff also paid for the associated costs of
the wedding which included inter alia, the clothes, venue, flowers and the supper.

15 Trial Bundle F, page 2.
16 Trial Bundle F, page 27.

[36] According to the Plaintiff, they bought the D[...] Street property for cash. She
explained that it was the Defendant who made the deal with the Estate Agent. She
expressed that she wasn’t happy as the house was too expensive. It was put to the
Plaintiff that she was the one who wanted to purchase the D[...] Street property. She
responded by saying she did not agree to the price and signed the documents
because the Defendant had asked her to sign. The Plaintiff remained steadfast that it
was the Defendant who h ad misled her into buying the hous e that was ultimately
purchased for R2 650 000. The transfer costs amounted to R164 000. The bank
records to which she was referred confirmed the deposit amount that was paid. They
spent an amount of R200 000 to furnish th e D[...] Street property. According to the
Defendant, the furniture expense was against his will. Thereafter they bought a
second property situated at 5 D[...] Court Lakeside for R1 230 000. This property
was also bought from the proceeds of the sale of the Plaintiff’s Hong Kong property.

[37] The transfer costs for the D[...] Court property amounted to R103 000. The
parties rented out the D [...] Court property. In addition, a motor vehicle was
purchased and an amount of R265 000 was paid to the dealership. According to the
Plaintiff, the vehicle is gone as the Defendant sold the vehicle without her permission
and kept the proceeds. The balance of the money, after purchasing the two
properties and the vehicle, went towards paying her mother R850 000 and her father
R1 360 000. There was approximatel y R554 497 left which she used for living
expenses for herself and S[...] as well as legal fees. The Plaintiff stated that she has
no money left from the proceeds of the sale of her Hong Kong property.

[38] The Plaintiff orated that the Defendant was never employed. She further
explained that she received no financial contributions from the Defendant, except for
having received a once -off amount of R7 000 for maintenance . The Defendant on
the other hand, referred to his balance sheet where it was indicated that he paid for
all the D[...] Street rates and tax as well as gifts to the Plaintiff. The Plaintiff regarded
these payments as negligible, rates on the properties.

[39] The Plaintiff’s assets, as at the time when she testified, comprised of her
50% share in the immovable properties, policies and bank account credit balances
all amounting to R2 241 870.17 In order to survive she had to take out loans as the
balance of the proceeds in the amount of R554 497 was depleted to cover her and
S[...] ’s living expenses and her legal costs. The Plaintiff’s liabilities amounted to
R2 195 663. The Plaintiff provided a detailed exposition of her income and monthly
financial commitments. 18 She also testified that she receives a 50% of the rental
income from the D[...] Court property, which amounted to approximately R6 618.33
per month.

[40] Counsel for the Plaintiff contended that the Defendant was dishonest with his
finances and his financial contributions to the marital relationship. The Defendant
maintained that he was gainfully employed at all material times and that he earned
sufficient income to make significant contri butions. In support hereof, the Defendant
referred to the tax amount that he paid in 2018 in the amount of R11 000. The
Defendant also referred the court to various invoices for which he said he was
financially responsible.

[41] The Defendant could however not refute that a total of R4 527 461.23 was
paid into his account. After various transactions he was left with an amount of
R141 999. During cross -examination, it was established that payments the
Defendant claimed he made for example, the rates and taxes for the D[...] Street
were evidently made from the surplus in the amount of R141 999 of the proceeds of
the sale of the Plaintiff’s Hong Kong property. Counsel for the Plaintiff demonstrated
this conclusion from information sourced from the Def endant’s own trial bundle. In
this regard, it was highlighted that for the tax year 2018, the Defendant disclosed to
SARS an amount of R22 410 per annum and for 2019 an amount of R38 454 per
annum respectively.

[42] Whilst the Defendant in his Heads of Argument contended that Counsel for
the Plaintiff only produced calculations from his Capitec Accounts and not his
Bidvest Account, it remained the Defendant’s duty to place the relevant evidence
before court, which he had not done. I pause here to mentio n that the Defendant’s
trial bundle comprised of 454 pages, of which the bulk of the documents, possibly

17 Index F, Assets and Liabilities spreadsheet, page 1
18 Index F, Monthly maintenance requirements, pages 329 – 331.
337 pages thereof, were account statements and income tax statements. These
documents are meaningless if the specific purpose therefore have not been d ealt
with in evidence.

[43] The Defendant refuted that he “was useless” and suggested that his tax
documentation is proof that he had an income. 19 According to the Defendant, the
interest which accrued was paid into the Plaintiff’s banking account. Even if the
Defendant paid tax in 2018, the issue for determination essentially turns on whether
he contributed to the purchase of the major assets in the estate.

[44] The Defendant testi fied that his father and mother also gave the Plaintiff
money and took care of her well -being. He further narrated that he gave the Plaintiff
between R100 and R10 000 every 2 to 3 months. He testified that he paid for the
plumbing expenses. He explicated that he had a job at UCT where he worked on site
for 3 weeks. He stated that he had a long history with the school of business at UCT,
spanning back 15 years.

[45] It is also noteworthy that while the Defendant claimed to have paid for the
birth of S[...] in an amount of approximately R47 000, it came to light that the birthing
expenses were covered by his grandparents and his father’s brother. The Defendant
stated that he also made 2 payments from his accounts and questioned whether it
mattered who paid for the birthing expenses of S[...] , which ought to be viewed
within the context of Italian customs. I understand that the Defendant regarded this
contribution as coming from himself, by extension in terms of Italian culture,
however, it is unrefuted that it did not come from his bank account or personal
resources.

[46] It is evident that there are numerous factual disputes in relation to the version
of the Plaintiff and Defendant . The adjudication upon two mutually destructive
versions require consideration. The matter of Stellenbosch Farmer’s Winery

19 Defendant’s discovery bundle, pages 374 and 376.
Group LTD and anothe r v Martell et Cie and Others 20 is instructive on this point
where Nienaber JA stated the following:

‘The technique generally employed by courts in resolving factual
disputes of this nature may conveniently be summarised as follows. To
come to a conclusion on the disputed issues a court must make
findings on (a) the credibility of the various factual witn esses; (b) their
reliability; and (c) the probabilities. As to (a), the court’s finding on the
credibility of a particular witness will depend on its impression about
the veracity of the witness. That in turn will depend on a variety of
subsidiary factors, not necessarily in order of importance, such as –

(i) the witnesses; candour and demeanour in the witness-box,

(ii) his bias, latent and blatant,

(iii) internal contradictions in his evidence,

(iv) external contradictions with what was pleaded or put on his
behalf, or wit h established fact or with his own extracurial
statements or actions,

(v) the probability or improbability of particular aspects of his
version,

(vi) the calibre and cogency of his performance compared to that
of other witnesses testifying about the same incident o r
events.

As to (b), a witness’s reliability will depend, apart from the factors
mentioned under (a)(ii), (iv) and (v) above, on


20 2003 (1) SA 11 (SCA) at para 5.
(i) the opportunities he had to experience or observe the event in
question; and

(ii) the quality, integrity and independence of his recall thereof.

As to (c), this necessitates an analysis and evaluation of the probability
or improbability of each party’s version on each of the disputed issues.
In the light of its assessment of (a), (b) and (c) the court will then, as a
final step, determine whether the party burdened with the onus of proof
has succeeded in discharging it. The hard case, which will doubtless
be the rare one, occurs when a court’s credibility findings compel it in
one direction and its evaluation of the general probabilities in another.
The more convincing the former, the less convincing will be the lat ter.
But when all factors are equipoised probabilities prevail’.

[47] The considerations articulated in this matter have been quoted with approval
in plethora of subsequent judicial authorities.21 In determining whether the Defendant
stands to unduly benefit from the marriage, i t is therefore incumbent on this court to
evaluate the evidence with due regard to the credibility and reliability of the
witnesses as well as the probabilities and improbabilities.

[48] On the Defendant’s own version, he had limited resources as he testified
that one of the reasons for not visiting Hong Kong in 2023, was because he had a
limited budget. It is undisputed that the Plaintiff ha d, prior to the marriage
accumulated her own financial resources independently from the Defendant.

[49] Insofar as the motor vehicle is concerned, t he Defendant explained that his
erstwhile attorneys advised him to sell the vehicle to fund the rel ocation matter as he
purchased the vehicle in his name. The Defendant’s explanation proffered in court as
to why the vehicle came to be registered in his name, was that the dealership
advised him that the vehicle had to be transferred into the name of some one with a

21 National Employers General Insurance v De Jagers 1984 (4) SA 437 (E) at 440D -G; Santam
Beperk v Biddulph 2004 (5) SA 586 (SCA) at para 5 and 20; De Beer v Road Accident Fund
ZAGPJHC 124 (28 March 2019). Ntsele v Road Accident Fund (2017) ZAGPHC (1 March 2017) at
paras 13-14.
driver’s license. According to the Defendant, it was the Plaintiff who insisted on
purchasing the car, as he had a vehicle at the time.

[50] The unrefuted evidence is that the Plaintiff contributed 100% to the
acquisition of the patrimonial assets of the joint estate, namely:

(a) the purchase price and transfer costs of the D[...] Street property in the sum of
approximately R2 800 000;

(b) the purchase price and transfer costs of the D[...] Court property in the sum of
approximately R1 330 000;

(c) the furnishing of the D[...] Street property, in the sum of approximately
R200 000 and

(d) the purchase of a motor vehicle in the sum of approximately R265 000.

[51] The Plaintiff’s evidence was supported by objective documentary evidence.
The Defendant argued that fairness is not a ground for forfeiture. It is my considered
view that the Defendant’s contributions were negligible . It is trite that the court has a
discretion to make an order of forfeiture of benefits if satisfied that the party against
whom the order is sought would be unduly benefited in relation to the other party if
the order is not made. I am therefore satisfied, based on the undisputed independent
evidence that any benefits that might accrue to the Defendant by virtue of the
marriage in community of property, more particularly the immovable property, the
furnishings of the property and the motor vehicle are undue.

[52] It follows that once this determination has been made, the court is to
consider the factors set out in Section 9(1) of the Divorce Act. In terms of Section
9(1) of the Divorce Act the court is cloaked with a discretion to make an order for
forfeiture after having regard to the following factors:

(a) duration of the marriage;

(b) the circumstances that gave rise to the breakdown of the marriage
relationship; and

(c) substantial misconduct on the part of the party against whom the order is
sought.

[53] In Binda v Binda22, the court held that the legislature in section 9(1) of the
Divorce Act required that each of the factors should be given due consideration
without requiring the presence of each one of them, including their accumulative
effect.

Duration of the marriage

[54] On the Plaintiff’s version the parties lived together for approximately 12 – 13
months; bearing in mind that the Plaintiff travelled between South Africa and Hong
Kong on a few occasions since the marriage in May 2018. Divorce proceedings were
instituted in December 2019. On the Defendant’s version, the parties reconciled on 3
occasions. The Defendant wishes the court to consider that the parties story goes
back to 2013. The Defendant submitted that he did not regard the marriage as being
of a short duration.

[55] The duration of the marriage is effectively calculated from the date of
marriage and not when the parties started dating. Therefore, on a generous
calculation based on the Defendant’s version which will include the attempts at
reconciliation, the relationship, will for the purposes of this matter , be deemed to
have seized on 13 January 2020 , being the date given by the Defendant that their
relationship ended . There is no dispute that the parties have lived on separate
continents since October 2020.


22 1993 (2) SA 123 (W) at 124.
[56] The considerations in KT v MR ,23 serve as a useful guide as the marriage
broke down within 24 months and the issue of misconduct did not arise . The court
held that:

‘… the longer the marriage, the more likely it is that the benefit will be due and
proportionate, and conversely, the shorter the marriage, the more likely the
benefit will be undue and disproportionate.’24

[57] I am of the view that the duration of the marriage in casu is on the facts
presented, relatively short, given that there were a number of breaks during the
period 2018 – 2019 as per the evidence. Consequently, on the conspectus of the
evidence in casu, the court would be justified in granting a forfeiture order based on
the duration of the marriage alone. Whilst the duration of the marriage would justify
an order for forfeiture, I nevertheless deem it prudent to consider the other remaining
factors in order to concretise my findings in this regard.

Circumstances which gave rise to the breakdown of the marriage

[58] It is trite that Section 9 of the Divorce Act envisages substantial misconduct.
In Wijker v Wijker25 (supra), the court held that substantial misconduct is one that is
found to be so ‘obvious and gross that it would be repugnant to justice to let the
“guilty” spouse get away with the spoils of the marriage. ’ The authorities are
furthermore clear that the court is to have regard to the factors cumulatively. The
matter of Botha v Botha 26 endorsed the principles emanating from Wijker v Wijker
(supra) and impressed that the application of Section 9 of the Divorce should be
within the context of the evidence tendered in court.

[59] The circumstances which gave rise to the breakdown of the marriage is
integrally interwoven with the allegation s of the Defendant’s misconduct . There are
certain factual disputes that emanates from the respective versions of the parties

23 2017 (1) SA 97 (GP) at p105.
24 at para 105.
25 At para 28.
26 2006 (4) SA 144 (SCA).
which will require evaluation by way of application of the trite legal principles as
earlier illuminated in Stellenbosch Farmer’s Winery (supra).

The evidence

[60] The Plaintiff confirmed the content of Dr Glyde Thompson’s report, in
support of the relocation application as being an accurate narrative of the timeline of
events and her naivety insofar as it related to what she was given to believe by the
Defendant.27 The Plaintiff testified that the marriage was n ot a happy one and
provided anecdotes of events to augment the reasons that led to the breakdown of
the marriage. The Defendant challenged Dr Thompson’s report and stated that he
did not only marry for money. According to the Defendant, their relationship started
out as an affair. He described that he and the Plaintiff had a love bond. He testified
that he believes that if the Plaintiff did not apply for a divorce, they would still be
married.

[61] The Plaintiff narrated that on the evening of the marriage they had an
argument before the wedding dinner which was attended by her family and a few
very close friends. The Defendant did not show up for the supper. She expressed
that she felt embarrassed and wanted a d ivorce at that time already. The
Defendant’s version under cross -examination was that the Plaintiff had left him on
the street. He explained that Ms L[...] got angry because he took off the flower from
his lapel and threw it in the bin. The Defendant’s explan ation was that because he
did not speak Cantonese, he was unable to find out where to look for the venue.

[62] The Plaintiff testified that the Defendant had erratic mood swings, had a lack
of interest to find suitable employment and a general lack of basic hy giene. The

27 Index E, Dr Glyde Thompson, Psyc ho-legal Report, page 280 ‘…The decisions made by S[...]2 to
move to south Africa, sell her only residential property in Hong Kong, pay her father the matrimonial
bride price (which is ordinarily paid by the husband to be), buy two properties in South Afric a with the
proceeds of her property sale, place both these properties in her and J[...]’s name, purchase a vehicle
and place the vehicle in J[...]’s name, all in a space of approx.. 6 months, not only shows S[...]2’s
naivete but also represents the trust she placed in J[...] and the vision of a life he promised.
It is evident from the case history that J[...] oversold himself with regards to this vision and once they
started living together and they also started to have interpersonal problems the relations hip quickly
soured and reached tipping point. Six months into her arriving in Cape Town, S[...]2 moved back to
Hong Kong and once there she had doubts about returning. However, after talking to J[...]’s father she
decided to return…’
I
Plaintiff orated that they would have arguments. She described that the Defendant
would emotionally abuse her. The Plaintiff was referred to a transcript of a WhatsApp
audio recording of a message by the Defendant and a Mr Harry Trisos, the
Defendant’s erstwhile legal representative. The Plaintiff explained that she listened
to this voicemail and was shocked to lea rn that the Defendant had actually tricked
her into marrying her with the objective of getting all her money. The salient portions
of the audio recording were read into the record.

[63] The Plaintiff recalled an incident that while she was 4 months pregnant, she
was kicked out of the house and the Defendant’s mother refused to open the door for
her. She described how she had to stand outside in the pouring rain. The Defendant
on the other hand denied that the Plaintiff was locked out of the house in the pouring
rain when she was 4 months pregnant.

[64] She furthermore recounted an incident where the Defendant had damaged
her cellphone . In addition, she related an incident that happened when her fam ily
visited them in October 2018. This invite, according to her, was at the behest of the
Defendant to celebrate their wedding. They had a dinner at Groot Constantia. The
Plaintiff testified that her father ended up paying for the dinner. She explained th at
the Defendant conducted himself towards her parents in a disgraceful and abusive
manner.28 The Defendant on the other hand, denied that it was his idea to host the
Plaintiff’s family for a wedding dinner in Cape Town.

[65] In another narrative, the Plaintiff orated that her family cooked Hong Kong
food and invited the Defendant and his family over. Only the Defendant and his
father arrived. The Defendant on the other hand, could not recall eating with Ms
L[…]’s family where it was only him and his father in attendance. Initially he could not
remember being critical of the food. Later during cross -examination he conceded
that he might have said that he did not like the food.


28 Index E, Relocation Application, page 11, para 15 ‘Relations between the Respondent and myself
deteriorated further when, during October 2018, and after my parents came over from HKSAR to visit
us, Respondent conducted himself towards my parents and toward s me in such a disgraceful and
abusive manner that on 1 November 2018 I left him to return to HKSAR.’
[66] According to the Plaintiff, t he Defendant claimed that he was dizzy and felt
sick after complaining about the food. He left the dinner and when she returned
home, she found him lying on the bed busy on her phone. Her father got angry when
he saw this. She and her father spok e in Cantonese to each other . The Defendant
wanted to know what they were saying. He got angry because he thought they were
taking about him. The Plaintiff requested the Defendant drive her to where her family
was staying in Lakeside. The Defendant did not do so, forcing her to tell him wha t
they were talking about. This led to the incident where he drove around with her until
at some stage he asked her to get out of the vehicle at an unknown place in Tokai.
She alighted from the vehicle and hid in the bush.

[67] The next morning, she was woken up and informed that her father and the
Defendant were in a fight. When she saw her father, h is shirt was torn, and his nose
was bleeding. Soon thereafter she left to go back to Hong Kong and returned 2
months later as she was pregnant and garnered the hope to save the marriage.

[68] The Defendant ’s version was that he could not remember that the Plaintiff
found him on the bed going through her phone and therefore was unable to deny it.
He could not remember doing anything wrong. He only recalled the Plaintiff’s father
slamming the door and the Plaintiff running down t he street. He explained that he
found the Plaintiff crying down the street because her father shouted at her. He
denied telling the Plaintiff to get out of the car and stated that she had in fact refused
to talk to h im and at some stage started screaming a nd hit him with her phone. This
is when he drove to the garage and asked her to give him a moment. She then
jumped out of the car. When asked why he did not try to get to the Plaintiff back into
the car, he stated that he went looking for her but she had d isappeared. He sought
help from his brother and they eventually found the Plaintiff.

[69] The Defendant stated that he did not see the Plaintiff for about a week
thereafter. She then returned to Hong Kong because of the fight with her father.
According to the Defendant, the Plaintiff’s father threatened not to speak to her again
if she did not return to Hong Kong.

[70] The Plaintiff orated that t he Defendant’s father promised to take care of her.
The undertaking by the Defendant’s father never materialized and th e relationship
between her and the Defendant did not improve. According to the Defendant, his
father concocted the story that he was working for him. The Defendant’s version is
that his father’s business “had gone into oblivion” and that he hadn’t worked f or his
father since he was 30 years old. The Defendant averred that they acted in the
interest of S[...] , who was born through what he referred to as “our manipulations to
stop her from aborting the child”.


[71] In another incident the Defendant accused the Plaintiff of not feeding S[...]
and for giving too much attention to her cats. She recalled that on o ne particular
night he took S[...] to his parents’ house w hen she was only a few weeks old at the
time. The next morning at around 7 a.m. the Defendant stated that S[...] wasn't
looking good, accusing her of not feeding S[...] . When he took the child to the doctor
she was absolutely fine. The Defendant also threatened to throw all her cats away if
she did not breastfeed S[...] .

[72] The Defendant narrated that the Plaintiff was hostile and refused to feed
S[...] . The Defendant confirmed that he took S[...] to the emergency room. The
Defendant refuted that the doctor indicated that the child was fine the next morning
as according to him, the child spent the whole morning at his mother’s house.

[73] The Plaintiff further art iculated that she had asked the Defendant to leave
the house, but he didn't do so immediately . When he ultimately left in June 2018, he
retained the keys to the house which allowed him free access to the house whenever
he felt like it.

[74] In another instance, she explained, that when she arrived home at around
4:00 p.m. she found that the front door was open , and her belongings were in the
front yard. She asked the Defendant and his mother what they were doing , and they
did not respond. When she tried to put her belongings back , she was told that she
should not bother as they will do the same thing tomorrow again.

[75] In a further occurrence, policemen were sent to her to inquire about
childcare that was reported . She was then given advice to obtain a protection order
which she did on 5 August 2019. The Plaintiff explained that she did not proceed
with this protection order because the Defendant told her that it would destroy him.

[76] During cross examination, the Plaintiff denied that she hit the Defendant with
a phone on his head in the car. The Plaintiff denied that she bit the Defendant on his
stomach around his liver. The Plaintiff denied that she is pretending to have a limited
command of the English language and confirmed th at she completed her Master’s
degree in English.

[77] Many propositions were refuted or denied by the Plaintiff which included the
suggestion that it is Chinese tradition for the paternal father to pay and that his
parents attempted to pay their portion of th e dinner. It also came to light that the
Defendant stopped the Mountain Men security when he left D[...] Street and refused
to pay, as a consequence, she was obliged to pay for her security. The Plaintiff
denied that he attempted to reinstate Mountain Men.

[78] The Defendant, during cross-examination was confronted with the content of
his message to Mr Trisos; more particularly that the marriage was a charade; that he
took advantage of the Plaintiff’s English and ignorance of South African Law and that
he tricked her to get the properties onto his name. It was put to the Defendant that
he had made no mention of being concussed or lying in a hospital bed at the time
when he was messaging Mr Trisos. It was suggested that the Defendant invented a
story that he was concussed because he was only in hospital for 4 hours as was
confirmed by the Defendant. It is noteworthy that the Defendant provided no proof
that he was actually admitted in hospital as elicited during cross -examination. The
Defendant confirmed that he had discovered no proof that he was in fact admitted to
hospital for 4 hours as he claims.

[79] The veracity of the Defendant’s version was further challenged in terms of
what Mr Trisos conveyed to the Plaintiff’s attorney. The Defendant explained during
cross-examination that there were in fact 2 recordings and that the voicemail referred
to was in fact sent a week later, namely 27 October 2018. However, according to Mr
Trisos the Plaintiff’s father assaulted the Defendant on 20 October 2018.

[80] Counsel for the Plaintiff contended that the message was remarkably
coherent for someone who had a concussion. In court, the Defendant explained that
the message he left should be considered in the context that he was concussed at
the time which was combined with an “adrenalin surge”. During cross- examination
he also explained that the reason for the message was because he wanted to hurt
the Plaintiff and because he was angry.

Submissions regarding substantial misconduct

[81] Counsel for the Plaintiff argued that there were a number of factors that
constituted substantial misconduct. Firstly, t he message from the Defendant to Mr
Trisos where he said:29

(a) His marriage to the Plaintiff was a “farce” and a “charade”;

(b) He took advantage of the Plaintiff’s lack of English and her ignorance of
South African law;

(c) He tricked the Plaintiff into giving him 50% of her property by marrying her
in community of property;

(d) His plan was to get the properties into his name.

[82] The Second aspect that the Plaintiff argued amount ed to misconduct on the
part of the Defendant pertain ed to the communications sent by the Defendant to the
Plaintiff after the marriage had broken down ; the contents whereof were insulting,
threatening and harassing.30 Examples thereof included:


29 Index F, Section 36, pages 359 – 360.
30 Index F, Section 6, pages 394, 378, 380 and 384.
(a) He threatened to expose her “psychopathic” behaviour to the world;31

(b) That he had installed software which would go digitally live so that the whole
world could see “what evil looks like”;32

(c) He accused the Plaintiff of stealing and kidnapping S[...];33

[83] In the email dated 20 January 2024 addressed to Ms L […], by the Defendant
he wrote “…By the time you get me in jail, you all will be in jail.” 34 He explained that
he wrote it in response to not seeing his daughter for years.

[84] The Defendant however indicated that the majority of the communications
were not like that. The Defendant during his testimony admitted to saying a lot of
inappropriate thing s but orated that he did not think it to be harassment. He
explicated that he was suffering tremendously as the Plaintiff has locked him out of
his daughter’s life. The Defendant expressed frustration because the Plaintiff
stopped responding to his emails. He also expressed that what the Plaintiff did to
him was hurtful.

[85] It is manifest that the Defendant did not desist from sending communications
to the Plaintiff, despite being requested to do so by the Plaintiff’s attorneys. The
Defendant conceded during cross-examination that the email messages would have
been perceived as threatening. He conceded that he had directed many
communications with threatening undertones. When confronted with certain of this
communique, he did not agree to it be ing tantamount to harassment but explained
that he was desperate to have contact with his daughter as previously stated.

[86] Thirdly, Counsel for the Plaintiff submitted that the court is to have regard to
the nature of the content of communications sent by the Defendant to the Plaintiff’s

31 Index F, Section 6, page 394.
32 Index F, Section 6, page 394.
33 Index F, Section 6, pages 388 and 396 “You stole my child from me and I am getting her back…I
fear nobody! You f…ing kidnapped my daughter!!! And everyone that helped you will be exposed.”
34 Index F, Email dated 20 January 2024, page 393.
attorneys which were also insulting, threatening and harassing of her. 35 Despite the
Defendant being asked to refrain from this conduct, the Defendant did not accede to
the request. During cross-examination the Defendant acknowledged that many of the
email communications were inappropriate.

[87] Fourthly, it was highlighted that the court is to have regar d to the
Defendant’s attitude towards Dr Poon Mak, the Plaintiff’s expert which was
derogatory and demeaning of her . The attack on Dr Mak, was indeed shockingly
inappropriate to the extent that the language used in the onslaught on her such as
calling her as inter alia being a “financial prostitute”, a “hired gun” and a “monster” is
deserving of censure.36 To add insult to injury he called her a “c…” and wrote:

‘I truly hope that you burn in hell and that your death is one of inexplicable
suffering and torment when it happens, hopefully from a terrible disease of
cancer…

The reality is, that while you prostitute yourself for money my daughter is
suffering…and while I know that you are incapable of actually feeling remorse
because of your lack of humanity, just know that I see straight through you…’37

[88] When confronted about this during cross -examination, the Defendant also
admitted to the contents of the email communications to Dr Mak being inappropriate.
I will deal with Dr Mak’s report later in this judgment.

[89] Fifthly, Counsel for the Plaintiff submitted that the court is to take cognisance
of the Defendant’s attitude towards other experts where for example:

(a) The Defendant referred to Dr Ilse Van Der Merwe as “a gun for hire”;


35 Index F, Section 7, pages 399 to 432.
36 Index F, Section 8, pages 434 and 440.
37 Index F, Section 8, page 441.
(b) The Defendant referred to Dr Glyde Thompson’s report, his own expert, as
being “nonsense” because he did not understand Chinese or Italian Culture .
He made other spurious accusations and innuendos;38

(c) The Defendant was dismissive of Dr Czech’s recommendation that he
requires to see a psychiatrist regularly.

[90] It was furthermore highlighted that the Defendant, during cross -examination
accused all of the experts of being unethical.39 Sixthly, it was argued that the
Defendant’s evidence during the trial was a sustained personal and reckless attack
on the Plaintiff and her family and Hong Kong with a view to portraying her, her
family and Hong Kong in a poor light. In this regard, it was contended that the
Defendant made wild, unsubstantiated claims as to the Plaintiff’s conduct, certain of
the Plaintiff’s family members and life in Hong Kong in general.

[91] Counsel for the Plaintiff submitted that the Plaintiff’s narration of specific
incidents in support of the reason for the irretrievable breakdown of the marriage,
were sufficient for the court to find in favour of a forfeiture order. It was furthermore
argued that the above factors on its own, are sufficient for this court to grant
forfeiture on the basis of the Defendant’s substantial misconduct.

[92] The Defendant testified that the Plaintiff was abusive which was
corroborated by a copy of an affidavit from Benson Tembo. 40The Defendant also
stated that the Plaintiff, in a WhatsApp conversation, admitted to having a
temper.41 According to the Defendant, the Plaintiff would assault him when they
had arguments. The Defendant also referred to Dr Th ompson’s report where the
Plaintiff admitted to assaulting him. He recounted an incident where there were
glass shards in the driveway with the objective, according to the Defendant, of
popping his tyres. The Defendant orated that the Plaintiff called him a loser and
insisted that he park in the road. He stated that the Plaintiff refused to pick up the
glass, that remained there for 3 weeks.

38 Plaintiff’s Heads of Argument, para 91.2, pages 38 – 39.
39 Plaintiff’s Heads of Argument, para 91.4. page 39.
40 Defendant’s discovery bundle, page 436.
41 Defendant’s bundle, page 442.

[93] The Defendant suspected that the Plaintiff was romantically involved with his
best friend Mr Lottering who had a dru g problem. This, because Mr Lottering went to
Hong Kong to visit the Plaintiff. He likened the Plaintiff to being like a proverbial
Jekyll and Hyde; where she would be warm or cold and angry. She would, according
to the Defendant perpetually kick him out of the house.

Evaluation

[94] I deem it prudent to mention that the Defendant was cautioned at the
commencement of the hearing to the limitations of conducting his case on a virtual
platform. This court is acutely aware that the Defendant is a lay person, the rules of
evidence is clear. There are countless examples of factual submissions that were not
put to the Plaintiff during cross -examination. The Defendant on numerous occasions
made unsubstantiated assertions as to the Plaintiff’s conduct, which he claims to
have disclosed in a digital report which was not placed before the court.

[95] It is trite that in civil litigation, evidence is the substratum on which cases are
built. The primary function of evidence in civil litigation is to establish facts, which are
essentially the building blocks of the case. This provides the foundation for a ll
subsequent legal arguments and decisions. This court is beholden to consider the
evidence before it. It must be born e in mind that the Defendant has a counterclaim
and as such he held a duty to place evidence to satisfy the court that he is entitled to
succeed on his claim or defence as the case may be. 42 The standard of proof in a
civil matter is a preponderance (balance) of probabilities.

[96] The Defendant in his Heads of Argument stated the following:

‘It must be noted that during the trial, a large digital report with 10 gigs of video
& audio evidence, that the judge has not seen was continuously referred to by
myself as the advocate referenced an email containing the link to the report.


42 Pillay v Krishna 1946 AD 946 at 952 – 953.
(a) It must be noted, that the plaintiff did not use any evid ence from this
extensive video & audio report in her discover and the plaintiff’s advocate
did not bring up the report during cross questioning nor any other time
during the trial even though it is the largest repository of digital evidence that
exists for this trial.

(b) The report was created by myself & the advocate sought to steer clear of all
questioning or mentioning of this report at all costs even though I brought it
up several times…’43

[97] The Defendant cannot rely on the Plaintiff’s Counsel to raise the issues in
the digital report, when it is not what the Plaintiff’s case is based on. The Plaintiff’s
case has been specifically pleaded and as such, the Plaintiff is confined to the four
corners of her case as per the pleadings. Therefore, it was incumbent on the
Defendant to present relevant evidence in support of his counterclaim and defence.
I also deem it necessary to stress to the Defendant that Heads of Argument does not
constitute evidence. Omissions during the trial cannot be cured through amplific ation
in Heads of Argument. It must be emphasised that no party is permitted a second
bite of the cherry, proverbially speaking, when making submissions in the Heads of
Argument.

[98] By way of another example, the Defendant , in his Heads of Argument,
highlighted various other “nonsensical” statements made by himself, and explained
that when he is under extreme stress , he produces what he referred to as “word
salad sometimes”. This was primarily to explain the message to Mr Trisos. I n his
Heads of Argument, he goes on to explain:

‘…This I believe is a residual symptom of my psychosis that I had as a child.
While this is a rare occurrence & benin (sic), my father has told me that on
occasion but infrequently I do produce word salad. For the record, I have been
under psychosis since I was 14 years old but it is normal for those who have
history of psychosis to experience minor symptoms even when rare…however

43 Defendant’s Heads of Argument, para 4.
the rare occurrence of this word salad is not enough to indicate psychosis as I
am still a fully operational adult that has hist orically managed a business, paid
Tax & never been ill enough to be put into medical institution for my disorder
and nor do I have a criminal record…Regardless of what was said to Harry, I
remained committed to the marriage for the sake of my daughter…’44

[99] I interpose to refer to the evidence of the Defendant when he testified that
Dr Czech misunderstood him. During cross -examination, when asked whether he
took Dr Czech’s advice, he stated that he did not comply with the recommendation
and that he hasn’t seen a psychiatrist since he was 20 years old.

[100] Yet, the Defendant’s Heads of Argument suggested that he experience d “a
residual symptom” of his psychosis. This was not t he Defendant’s evidence during
the trial . The Defendant cannot amplify his case by way of Heads of Argument;
especially as it was the Defendant’s testimony that he hasn’t had any symptoms
since he was 14 years old. It is furthermore noteworthy that the Def endant wishes
the court to take into account that he was compromised because of the concussion
and went on to suggest that the message “made little sense” as he referred to the
marriage “being registered in South Africa, when it was only registered after ( S[...])
was born almost a year later”. He then goes on to say, “HOWEVER, THE REST OF
THE HARRY TRISOS RECORDING COULD NOT HAVE BEEN MORE
ACCURATE. EVEN IF THE RECORDING WAS TAKEN A WEEK LAT ER AS THE
ADVOCATE SUGGESTED”45(my emphasis)

[101] In addition to this admission, the Defendant goes on to state in his Heads of
Argument, that regardless of what he said to Harry, he remained committed to the
marriage. Consequently, by the Defendant’s own admission, I am satisfied that the
Defendant acknowledged that his marr iage was a “farce” and a “charade” , but that
that he remained committed to the marriage. It therefore follows, that all the other
aspects, whether it was word salad or not, ought to be accepted which includes that
he took advantage of the Plaintiff and tricked her into giving him 50% of her property

44 Defendant’s Heads of Argument, para 34 (d).
45 Defendant’s Heads of Argument, para 34 (c).
by marrying her in community of property and that his plan was to get the properties
into his name.

[102] The registration of the assets of the joint estate serves as the objective
evidence to confirm, on a balance o f probabilities, that his plan was effectively
actioned. This not only concretises my earlier finding that the Defendant would not
only unduly benefit, but that his conduct amounts to substantial misconduct to
warrant an order for forfeiture. In order to reinforce this conclusion, there are other
considerations which for the sake of completeness and for the benefit of the
Defendant, I will deal with in this judgment.

[103] The Plaintiff made a good imp ression on the Court. The Court was able to
observe the demeanour of the Plaintiff. I find her to be a credible witness as much of
her testimony was supported by way of objective documentary evidence. She
endeavoured to provide a narrative of events in a manner that did not impugn the
character of the Defendant. Her recollection of events was clear, logical and
chronological. She remained steadfast during cross-examination.

[104] The same can unfortunately not be said of the Defendant. In considering
the conflicting versions, on a balance of probabilities, there were countless examples
as highlighted earlier in this judgment which brings into question the plausibility of
the Defendant’s evidence . To further demonstrate this conclusion, t he Defendant
conceded that there was a false averment made regarding Ms L[...] applying for a
passport as an “unmarried” status.

[105] As earlier pointed out, the augmentation of the Defendant in his Heads of
Argument of aspects not canvassed during the trial, ca nnot be accepted as evidence
tendered in court and therefore cannot be considered for the purposes of this
judgment. The Defendant is furthermore reminded that the Plaintiff pleaded an order
for forfeiture and has endeavoured through the leading of evidenc e that she has
successfully discharged the onus required to succeed with the relief so claimed.

[106] The Defendant has attempted to impugn the Plaintiff’s credibility by
highlighting aspects such as averments that she had kicked him out of the house at
least 1 3 times . The Defendant does not bear an onus to show substantial
misconduct on the part of the Plaintiff to support his claim for division of the joint
estate. It is sufficient to show that the marriage relationship between the parties have
irretrievably broken down. It is not in dispute that the parties went through a series of
break-ups during the brief subsistence of their marriage. Inasmuch as the Defendant
left the common home, so too did the Plaintiff when she returned to China. On a
balance of probab ilities, the Plaintiff’s contention that the Defendant never left in
reality because he always had keys and returned is therefore plausible. The test for
forfeiture, again for the benefit of the Defendant is whether he would stand to unduly
benefit.

[107] The Defendant when challenged about the interim domestic violence
protection order obtained, denied verbally abusing the Plaintiff and was adamant that
she was the one who abused him , yet there was a plethora of correspondence
produced during the course of the trial wherein the language used by the Defendant
is deserving of censure . The allegations that the Plaintiff was abusive towards him
and had a temper, again, in my view, supports the contention that the marriage
relationship has irretrievably broken down, and on the facts before me, cannot tip the
scales for the court not to grant an order of forfeiture if regard is had to the
considerations and relevant legal principles found in Section 9 of the Divorce Act.

[108] It is uncontroverted that there was acrimony between the parties throughout
the marriage. This court in maintaining a balanced approach will accept that there
may have been times when the Plaintiff displayed anger or temper; however, it is
apparent on the Defendant’s own version that she had ho use rules which she was
strict about. He perceived the Plaintiff to have overreacted.

[109] It is evident that the Defendant was focused on preserving his dignity and
accused Counsel for the Plaintiff of making slanderous accusations about him. He
attempted to demonstrate his financial contributions in the marriage and emphatically
denied being a gold-digger. The Defendant was critical of all the experts including his
own expert, suggesting that they were “guns for hire”. The Defendant emphatically
stated that he does not identify with the South African value system.

[110] It is the duty of the court to carefully scrutinize the undue benefit in relation
to the three factors expounded on earlier in this judgment. A party that claims
forfeiture need not prove all three factors. It is enough if he or she proves any one of
the three factors.46 For the purposes of this judgment, I have given due consideration
to the cumulative effect of the said jurisdictional factors and not the factors
individually. This court considered that the duration of the marriage being of relatively
short duration , the circumstances that gave rise to the breakdown of the marriage
relationship which was extensively dealt with earlier in this judgment ; and the
substantial misconduct on the part of Defendant. Th e death knell for the Defendant
being the message to Mr Trisos where he stated:

" …and so, I married her for the simple reason that... I knew that if I went along
with her madness then I was probably going to be able to get back to South
Africa... That's why the actual marriage itself is a farce because I never wanted
to marry her because she was absolutely crazy …I realized, ... if I carry on this
charade, I can actually get proper ty out of her .... I actually tricked her into
signing the houses onto my name well 50% her 50% me because I spun a
whole bunch of stories to actually get that property. And my plan was to actually
get the property in my name and then divorce her..." (my emphasis)

[111] It is trite that the party claiming forfeiture of the patrimonial benefit is
required to prove the nature and extent of the benefits sought to be forfeited. 47 On
the Defendant’s own version, I am satisfied that the Defendant would stand to unduly
benefit from the proceeds of the sale of the immovable properties, known as 2 [...]
D[...] Street, Lakeside, Wester Cape and [...] D [...] Court, 1 [...] M [...] Road, Western
Cape as the properties were acquired from funds derived from the proceeds o f the
sale of the Plaintiff’s property in Hong Kong. Any contribution that the Defendant may
have made, is in my view negligible.

[112] Consequently, I am satisfied that the Plaintiff has successfully established
all three jurisdictional factors upon which t his Court may grant her application for

46 Klerck v Klerck 1991 (1) SA 265 (W) at 266 A-B.
47 Engelbrecht v Engelbrecht 1989 (1) SA 597 (C).
forfeiture of the benefits arising from marriage in community of property against the
Defendant.

Care and contact pursuant to the relocation application

[113] The Plaintiff testified that o n 1 August 2018 she requested her attorney to
consult with her at home as she did not have a vehicle. The consultation related to
her returning to Hong Kong and taking her daughter with her. A letter was written
Defendant requesting his permission , but he did not agree to it which led to the
relocation application.

[114] The Plaintiff orated that she made enquiries with immigration regarding the
documentation she needed in order for her to take S[...] with her to Hong Kong. She
was advised that there was no requirement that both p arents had to sign the
application form.48 The Plaintiff confirmed that the Defendant’s attorney challenged
the advice given by the relevant Embassy and disputed that Ms L[...] could apply for
a passport without the Defendant’s consent. 49 The Plaintiff confirmed that she
appointed an expert, namely Dr Ilse van der Merwe, who compiled a Psycho -Legal
Care and Contact Report. Dr Van der Merwe recommended that Ms L[...] relocates
to Hong Kong with S[...].50 The Defendant also appointed his own expert, namely Dr
Glyde Thompson who did not have concern s regarding Ms L[…]’s global functioning
or parenting.51 Dr Thompson recommended that the Plaintiff relocates to Hong Kong
with S[...]:

‘9.4
a) This would allow for the continuation of maternal attachment and cause a
break in the paternal attachment…

b) I would recommend that S[...]2 occupy the primary residen ce position and
that J[...] exercise contact as frequently as possible both in South Africa
and in Hong Kong. J[...] does not have restrictions in terms of employee

48 Index F, pages 368 – 369.
49 Index F, page 374.
50 Index F, Dr Ilse van der Merwe, Psycho-Legal Care and Contact Report, page 501.
51 Index E, Dr Glyde Thompson, Psycholegal Report, page 290.
leave and appears to be more flexible in terms of his availability for contact.
S[...]2 indicated that she would consent to allow for S[...] to have contact in
South Africa and would welcome J[...] visiting S[...] in Hong Kong. A major
obstacle would be cost and distance. It is unlikely that J[...] will be able to
afford this independently. S[...]2 indicated that she is willing to contribute to
the costs of the travel.

c) J[...] indicated that S[...]2 will abduct S[...] and prohibit future contact if
residing in Hong Kong. While this cannot entirely be ruled out as there is no
legal recourse for J[...] through the Hague convention this does remain a
risk factor. Based on S[...]2’s psychological presentation and her past
history the writer is of the view that S[...]2 poses a low risk in this regard.
…
10.
10.1 When considering all the relevant factors i t is recommended that consent
be given for S[...]2 to relocate with the minor child to Hong Kong; and that a
feasible contact schedule (both physical and electronic/video contact) is
mediated between the parents. This should include working out their
financial contributions towards travel costs.’52

[115] The parties entered into a Settlement Agreement, which was made an
order of Court on 17 September 2020. 53 In terms of the Agreement, the Defendant
consented that S[...] depart with the Plaintiff from South Africa to Hong Kong. 54

[116] A further term of the Agreement included the Plaintiff’s undertaking to have
the Settlement Agreement incorporated in and registe red as a mirror order in a
competent Court in the relevant jurisdiction of Hong Kong. The Plaintiff was required
to instruct her legal advisors in Hong Kong to institute any and all relevant processes
and to do so within 60 days of her arrival in Hong Kong .55 The Plaintiff further
explicated that soon after she arrived in Hong Kong, she sought advice on the
registration of the Settlement Agreement as a mirror order in Hong Kong. She

52 Index E, Dr Glyde Thompson, Psycho-legal Report, page 294 – 295.
53 Index E, Settlement Agreement, pages 304 – 321.
54 At para 2.1.
55 At para 2.2.
established that in order for a mirror order to be registered, it would require a re -
hearing of the matter for the Hong Kong Court to determine what is in S[...]’s best
interests.56 Her enquiries revealed that because the Settlement Agreement primarily
concerned the care and contact of the child, it cannot simply be mirr ored in Hong
Kong by way of registration.57

[117] The Plaintiff orated that she tried her best to comply with the contact
arrangements as per the Settlement Agreement. The contact arrangements
envisaged the situation where the Defendant would be resident in South Africa,
however, he relocated permanently to Italy. The Agreem ent made provision for the
Defendant to have contact with S[...] in Hong Kong. In this regard, the Plaintiff would
cover the costs of 2 airfares per annum for the Defendant to travel between South
Africa and Hong Kong. This would however have been subject to whether the
Plaintiff was financially able to do so. 58 Ms L[...] expressed unhappiness with the
terms of the Settlement Agreement as she indicated that the contact agreed to was
too much as she wouldn’t be able to take time off from work to go to South Africa.
She indicated a desire to substitute the terms of th e Settlement Agreement. The
Plaintiff also confirmed that the Defendant has not had any physical contact with
S[...] since she relocated to Hong Kong.

[118] The Plaintiff illuminated that the first time the Defendant indicated that he
wanted physical contact w as in 2021 and then the next request followed in 2023. 59
The Plaintiff orated why she was fearful that the Defendant would kidnap S[...].60 This
is the reason why she has not disclosed her residential address to the Defendant.
The Plaintiff ’s attorneys were obliged to send a letter to the Defendant’s erstwhile
legal representatives to address the harassment of and threats against the Plaintiff
and her legal representative demanding that the Defendant desist from this conduct,
more particularly:

56 Index A, pages 95, 112 – 113 ‘As there is no mechanism to register a mirror order of South Africa in
Hong Kong Court, would the commencement of a civil legal proceedings in Hong Kong urging the
Hong Kong Court to make an Order in respect of the question of custody, care and control and
financial provisions of S[...] be sufficient for the purpose of compliance with the South Africa Order by
lay client.’
57 Index A, page 117.
58 Index E, Settlement Agreement, para 3.4, 3.5 and 4.
59 Index F, email from Defendant to the Plaintiff dated 10 March 2023.
60 Index F, email dated 23 April 2023, pages 408 – 409.

(a) Harassing and threatening the Plaintiff;

(b) Refrain from publishing any information relating to the Plaintiff, S[...] or her
attorney on social media or any other internet platform and/or website or
make any publication of whatsoever nature and

(c) To immediately remove all and any publications of any nature whatsoever
and on whatsoever platform made by him.61

[119] During cross -examination the Plaintiff was challenged that she did not
consult with South African authority when she applied for S[...]’s passport. The
Plaintiff explained that she did not need to consult with South African authorities to
apply for a Hong Kong passport.

[120] The Plaintiff denied cancelling air tickets on two occasions and then
reinstating them when the Defendant agreed to marry her. The Plaintiff conceded
that she had given S[...] instructions on what she was allowed to talk to the
Defendant. The Defendant took issue with the fact that Mr Lottering had more time
with S[...] than he did , having accused Mr Lottering of using drugs. The Defendant
explained that his current girlfriend is a child psychologist who specialises in
occupational therapy. He enquired whether it would provide the Plaintiff with some
ease, to which she responded that she did not know her and that she wouldn’t be
around 24 hours a day.

[121] The Plaintiff was also challenged about compliance with the Settlement
Agreement, more specifically for not advising the Defendant about school holidays
and her leave times, to which she responded that she had sent him the school plan.
The Plaintiff was furthermore challenged about an air ticket that was purchased from
Rome as opposed to Venus as per his proposal. The Plaintiff was also challenged
about compliance with the Settlement Agreement insofar as co -guardianship and
joint decision making wa s concerned. In addition, there were challenges around

61 Index F, pages 429 – 430.
whether she informed the Defendant about the cough that S[...] had and photos that
she allegedly did not send. In this regard, it came to light that the Plaintiff had set up
a google drive link and uploaded photos of S[...]. In relation to not being notified
about S[...]’s dance school, the Plaintiff indicated that the Defendant was at liberty to
refer to the school link himself. The Plaintiff stated that it is not her responsibility to
send documents to him relating to the school and that the Defendant could make an
effort himself to contact the school.

[122] The Plaintiff indicated that she blocked the Defendant from various social
media access as his messages were tantamount to harassment and scared her.
When confronted about her not disclosing a medical condition, the Plaintiff refuted
same stating that when S[...] was admitted to hospital, she set up a zoom meeting.
The Plaintiff denied that 50% of the video calls were disrupted.

[123] The Defendant expressed that he wants to see his child in his country of
domicile. He testified that he is fond of the Plaintiff’s mother. He referred to her as an
excellent grandmother. He also testified that he never smoked in the physical
presence of S[...]. The Defendant expressed concerns about S[...]’s safety as Ms
L[...] administers corporal punishment. He recalled his daughter ha ving bruises and
torn clothes on one occasion. The Defendant furthermore testified that he received
online threats after the relocation application. He questioned how it would be
possible for Ms L[...] to get a passport for S[...] as it is a requirement to ob tain both
parents’ consent. Whilst she may not have broken Chinese law, she in fact broke
South African law according to the Defendant.

[124] The Defendant indicated that he entered into the Settlement Agreement for
the relocation application on the advice of his attorney. He explained that he did not
take it well and had an anxiety attack.

[125] The Defendant was also confronted about his rejection of the Plaintiff’s
offer to purchase and pay for a return ticket to and from Rome so that he could visit
S[...].62 To which the Defendant indicated that there were 24 -hour COVID tests to be

62 Index F, Letter dated 4 April 2023, page 441.6 – 441.7.
done. When probed a bit more, he indicated that the Plaintiff had changed the times
and that she did it against the terms of the Settlement Agreement. The Defendant
expressed the view that Ms L[...] purposely made it impossible for him. He also
added that he did not trust her brother.

Contempt of Court

[126] The Defendant has expressed frustration about not being able to enjoy
physical contact with S[...]. The Defendant ’s allegations of the Plaintiff’s breach of
the court order included inter alia:

(a) That despite the parties sharing full parental responsibilities and rights, the
Plaintiff has locked him out of S[...]’s life other than for partial compliance of
the video conferring;

(b) That the Plaintiff has denied him the role of co-guardian as:

1. He does not know where S[...] resides;

2. He does not know where she attends school;

3. The does not know who her doctors are;

4. He does not know who looks after S[...] when she is at work;

5. He does not know many things that he is entitled to as a co-guardian;

(c) He has no reasonable contact with S[...];

(d) There is no joint decision-making regarding S[...];

(e) He is not informed about schooling and/or sporting and/or extramural
activities;

(f) He is not informed about major medical treatment;

(g) He is not informed about religious, cultural or traditional beliefs;

(h) S[...] is being denied exposure to her Italian heritage;

(i) Denying him participation in any decision which may adversely affect S[...];

(j) He cannot att end school -related events, such as meetings and extramural
activities, by blocking his right to access information at the level of school
management and

(k) He has not received progress reports save for once in 2021 etc.

[127] In order for the court to consider co ntempt proceedings, a substantive
application ought to be placed before the court for consideration. It is trite that the
test for when disobedience of a civil order constitutes contempt includes
considerations as to whether the breach was committed delibe rately and mala fide.
In this matter, the Defendant relocated to Italy permanently. On 17 September 2020,
the Settlement Agreement was made an order of court, regulating the Defendant’s
contact with S[...]. The circumstances in casu has evidently changed since the
Settlement Agreement was entered into between the parties; however, this court,
must be astute to ensuring that S[...]’s best interest has been considered. The
Plaintiff deemed it prudent to appoint an expert psychologist to investigate the
current care and contact arrangements between the Defendant and S[...]. Dr Poon
Mak was appointed. She conducted an investigation and provided a report without
the Defendant’s direct participation. Dr Poon Mak, testified on the virtual platform at
the hearing.

[128] It is also evident that the terms of the Settlement Agreement envisaged an
arrangement in terms of which the Defendant would be in South Africa and not Italy.
The Defendant’s election to relocate to Italy has triggered the provision of Clause 3.9
of the Settlement Agreement as earlier mentioned which stipulated:

‘It is recorded that the respondent has indicated that he may be relocating and
that the parties have agreed that, should this eventuate (and the respondent
shall inform the applicant forthwith if this happens), the partie s will address this
in the divorce action.’

[129] Insofar as the registration of the mirror order is concerned, the Plaintiff has
testified about the efforts she has made and challenges she experienced in this
regard. The Plaintiff made enquiries about registe ring the mirror order and sought
legal advice in this regard, which constraints were communicated to the Defendant
through the attorneys of the Plaintiff. To this end, a comprehensive report entitled
“Advice on Registration of South African Order in Hong Kong” was attached. It was
highlighted that the Settlement Agreement was not final in effect as clause 3.9 of the
agreement was triggered by the Defendant relocating to Italy. In addition, the
Settlement Agreement did not contain a judgment sum or maintena nce order and
therefore was incapable of being mirrored in Hong Kong by way of registration.

[130] Many clauses refer to “South Africa” and has a bearing on enforceability.
Therefore, even if there is no substantive application, the Defendant would still have
had to show that the Plaintiff committed the breach deliberately and mala fide.
Consequently, in the absence of a substantive application for contempt of court and
in view of some of the highlighted challenges outlined, I am not persuaded that the
Defendant has made out a proper case for contempt of court.

Summary of the evidence of Dr Poon Mak

[131] Dr Poon Mak was essentially requested to address the duration of the
video chats insofar as it related to S[...]’s concentration span, the need for a familiar
figure to accompany S[...] when she meets the Defendant in person, the duration of
each visit and the introduction of overnight visits.

[132] Dr Mak, reviewed the followin g documents, namely, the Court order dated
17 September 2020; Dr Glyde Thompson’s psycho -legal care and contact report
requested by the Defendant. The Defendant chose not to be interviewed by Dr Mak ,
despite her attempts to engage with him. 63 It was placed on record that the
Defendant’s rejection was insulting and demeaning.64 There were a number of other
email exchanges between the Defendant and Dr Mak wherein the Defendant
expressed himself very strongly in terms that were very insulting towards Dr Poon
Mak.65 Dr Poon Mak expressed that the content of the correspondence induced a
sense of shock.

[133] To my mind, despite the onslaught, Dr Mak maintained her objectivity in the
best interest of S[...]. She provided the Court with the background. She stated that
the manner in which the Defendant has been communicating with S[...] has
established a bond. She e nvisages that there would be a gradual development of a
relationship. Dr Mak expressed that it can be appreciated that the Defendant is a
persistent father. Her general view of Ms L[...] is that she is a “down to earth, straight
forward lady who is honest and open”. 66 She also had an opportunity to do a home
visit. She described the home as being tidy and big enough for the Plaintiff, S[...] and
the Domestic Helper.

[134] She explained that there is a bond between S[...] and the Helper. Dr Mak
described S[...] to be an engaging child, although torn between her parents. She also
had occasion to speak with S[...]’s teacher who described her as helpful, sociable
and well-loved by her teacher and fellow students. S[...] is fluent in Cantonese and
English. It is also evident that Ms L[...] has a good support system. Dr Mak described
S[...] as a happy girl who related to her well. She was full of sunshine and very
affectionate with her mom.

[135] Dr Mak recorded that the Plaintiff has a fear that the Defendant will abduct
S[...]. Dr Mak opined that Ms L […]’s negative view of the Defenda nt is borne from
‘the very dreadful memories about her life in South Africa and believed that Mr R[...]
wronged her. It was not unexpected that she would be found troubled by such painful
past and unresolved problems over the marriage and S[...] would have sensed it. Ms
L[...] emphatically explained that she told S[...] that indeed she disliked her father but

63 Index F, Letter from Dr Poon Mak to the Defendant dated 13 March 2024, page 433.
64 Index F, Letter from Defendant to Dr Poon Mak, dated 13 March 2024, page 434
65 Index F, pages 435 – 441.
66 Report, para 8.
she truly supported her in building a relationship with her father…’67 Dr Mak does not
believe that Ms L[...] had actively done anything to alienate S[...] from the Defendant.
She holds the view that it was inevitable for S[...] to pick up the anxiety and fear of
her mother.

[136] Despite the Defendant’s election, Dr Mak was able to conclude her
assessment from observations she made from random video interaction s between
the Defendant and S[...]. She recorded the details of her observations in her report. 68
Dr Mak also testified about some of her observations and placed on record that S[...]
enjoys playing with her father. She observed that there is affection and a bond
between the Defendant and S[...]. She also stated that it is evident that the
Defendant does make an effort. They have good laughs together as father and
daughter.

[137] She expressed concern about the Defendant tell ing S[...] that her mother
kept her away from him. S[...] also expressed that she wished her father wouldn’t
smoke and lie on his bed and talk. He r observations between S[...] and the
Defendant’s mother were that these interactions appeared more natural and s he
observed that S[...] enjoys talking to her grandmother.

[138] According to Dr Mak, S[...] is perceptive to her mother’s feelings. Dr Mak
explained why it would not be in S[...]’s best interest for her to exercise contact with
the Defendant outside of Hong K ong at this stage, and that for that to occur there
had to be a gradual process of trust building, given that there had been no physical
contact between the m for over 3 and a half years. Dr Mak stood by the
recommendations made by her in her report.

[139] During cross -examination Dr Mak explained that Ms L[...] probably told
S[...] that her father took money from her, hence the reason why ‘she also gave
father a tongue out smiley face but also a devilish look and one with money coming
out of his mouth.’69 Dr Mak stated that she did not see in the Defendant’s report that

67 Index D, para 43, pages 22 -23.
68 Dr Rachel Poon Mak, Clinical Psychological Report, para’s 27 – 37.
69 Index D, para 19, page 16.
Ms L[...] punched him in the face and kicked him in his genitals. She confirmed that
the Defendant was a desperate father. The Defendant explained the reason for his
hostility to not having seen S[...] for 3 and a half years. It was put to Dr Mak that the
Defendant refused to be interviewed by “guns for hire”. The Defendant indicated that
Dr Mak does not have all the evidence and therefore cannot evaluate or provide an
opinion to which Dr Mak responded that she was only able to do what she could with
the information given to her. It was put to Dr Mak that she did not have any criti cism
of Ms […], to which Dr L[...] responded that she observed her fear. Dr Mak refuted
the suggestion that she said that he was an abusive parent. It was put to Dr Mak that
the Defendant proposes that S[...] visits him in his country of domicile. Dr Mak
remained steadfast with her recommendations.

Submissions by Plaintiff

[140] Counsel for the Plaintiff requested that the court fo llows the
recommendations of Dr Mak as she is a highly experienced practitioner.
Furthermore, it was contended that her assessment and report are both thorough
and well-reasoned.

[141] It was argued that the court is to have regard to the fact that the Defenda nt
chose to no t co-operate with the assessment . He refused to be interviewed despite
the repeated attempts by Dr Mak t o persuade him to participate. The Defendant was
cautioned about the consequences of his decision in this regard. From the testimony
of Dr Mak, she was able to assess the relationship between the Defendant and S[...]
from the 17 video calls that she chose randomly between 2021 and 2024. It was
furthermore submitted that Dr Mak provided a well -reasoned explanation why it
would not be in S[...]’s best interest for her to exercise contact with the Defendant out
of Hong Kong and as stated earlier, she opined t hat there had to be a gradual
process of building of trust.

[142] Counsel for the Plaintiff submitted that no credence should be attached to
any of the Defendant’s unsubstantiated attacks on Dr Mak’s qualification, character
and so-called inadequacies of her as sessment and report. It was contended that the
Defendant did not seriously put S[...]’s primary care in issue although he did say on
occasion that it would be better for S[...] if she lived with him in Italy. It was
highlighted that the Defendant produced no evidence to gainsay the evidence of Dr
Mak or to support his contentions.

[143] Counsel for the Plaintiff submitted that the Defendant provided
unsubstantiated reasons and excuses for why he was unable to travel to Hong Kong
to see S[...]. It was argued that the Defendant’s claim that as a Westerner, he would
be under threat in Hong Kong is insulting and without merit.70

Defendant’s principal submissions

[144] The Defendant acknowledged that he purposely did not want to be
interviewed by Dr Mak. The Defendant questioned the credentials of Dr Mak. The
Defendant stated that he sent “evidence” to Dr Mak via email which Dr Mak did not
review. The Defendant argued that Dr Mak essentially cherry -picked video clips thus
questioning the credibility of th e assessment. The Defendant furthermore contended
that Dr Mak took the Plaintiff at face value without viewing the evidence that he had
sent her. The Defendant raised concerns about matters that would be discussed with
S[...]. The Defendant indicated that S[...]’s schooling arrangements were not
discussed with him. The Defendant was emphatic about not going to Hong Kong and
described that he would be a “sitting duck” if he travelled to a communist country.
The Defendant makes additional assertions in this r egard in his Heads of Argument
with no reference to the authorities.

[145] The Defendant submitted that all references to “South Africa” in the
Settlement Agreement could simply be replaced by the word “Italy” . The Defendant
further holds the view that Dr Mak is not qualified to make an assessment on an
“Italian that she has never met”.

Discussion


70 Plaintiff’s Heads of Argument, para 47, page 21.
[146] It is uncontroverted that the Defendant has not had physical contact with
S[...] since the time when the Plaintiff relocated with her to Hong Kong in 2020 .
However, video contact was maintained which was confirmed by the evidence of Dr
Mak and the Plaintiff.

[147] It is clear that the Settlement Agreement in its current format is not capable
of implementation in light of the Defendant’s deci sion to relocate permanently to
Italy. The Settlement Agreement, was not couched as an agree ment pendente lite.
Regard is therefore to be had to the provisions of Section 6(1)( a) of the Divorce Act
which makes it peremptory for the divorce court to decide if the care and contact
arrangements of a minor child are satisfactory. Counsel for the Plaintiff contended
that the court cannot be bound by an agreement between the parties which was
made an order of court 4 years ago.

[148] The court is called upon to decide the extent to which the parties’
Settlement Agreement in respect of the minor child is to be varied, if at all. It is
evident that the Defendant has deliberately chosen not to participate, and nei ther is
he amenable to exercise contact with S[...] in Hong Kong. This court is duty bound to
consider that the welfare of the chil d is satisfactory or are the best that can be
affected in the circumstance s. This court is to consider whether the report and
recommendations of Dr Mak would be sufficient to satisfy this imperative.

[149] The Defendant has indicated that he wants S[...] to be able to visit him in
his country of domicile, namely Italy. Dr Mak’s recommendation proposes contact to
be in China. She proffers her reasons why she is of the view that this would be in
S[...]’s best interest. The Defendant wishes to invoke the protection of the Hague
Convention.

The Central Authority

[150] In light of the concerns raised by the Defendant, t he Court deemed it
prudent to engage the Central Authority and issued the following directive:

1. The Family Advocate in their capacity as The Central Authority as defined in
The Hague Convention ( Convention of 25 October 1980 on the Civil Aspects
of International Child Abduction ), more particu larly Article 21, which obliges
the Central Authorities to promote the peaceful enjoyment of rights of access
and to take steps to remove, as far as possible, obstacles to the exercise of
such rights, was ordered to provide a report to this court on:

(a) whether the South African Central Authority would be able to liaise with
the Central Authorities of China and/or Italy, respectively to provide
support to the Plaintiff and Defendant in respect of arrangements for
organising or securing the effective exercise of rights of access to the
minor child who is habitually resident in China;

(b) whether the Central Authorities of China and/ or Italy have a designated
intermediary who will be able to assist with organising or protecting
these rights and securing re spect for the conditions to which the
exercise of these rights may be subject, and if so, the procedures to be
followed by the parties;

(c) whether the South African Central Authority would be able to assist with
administrative arrangements regarding any o rders this court may make
in respect of care and contact for the minor child;

(d) the enforceability of orders made by this court in circumstances where
the child is no longer habi tually resident in South Africa, having specific
regard to the fact that 3 distinct geographical jurisdictions are
implicated:

(i) minor child and mother reside in China;

(ii) Defendant is domiciled in Italy and

(iii) Divorce proceedings are being concluded in South Africa.

The Family Advocate’s Report

[151] In the interim report, dated 12 September 2024, the Family Advocate
highlighted that it had made certain inputs for the purposes of the relocation
application, which were ultimately not considered. It was confirmed that the Chief
Family Advocate’s capacity as Central Authority RSA is by virtue of the incorporation
of Hague provisions and principles within our legislation, more specifically Chapter
17. In this regard, the Central authority for RSA is legislatively empowered to
delegate and/or assign the duties and powers conferred upon her under suc h
capacity, at her discretion on an ad hoc basis.

[152] It was furthermore explained that the Family Advocate does not gain
capacity to act as Hoc Central Authority by virtue of it being the Family Advocate,
such capacity is to be delegated upon the Family Adv ocate at the discretion of the
Central Authority herself and instances where the Hague Convention is found to be
applicable. There is no legislative provision for the roles to be interchangeable.

[153] According to the Family Advocate, the Hague Convention cann ot be
applicable, in light of the fact that S[...] has been resident in Hong Kong since 2020 ,
if regard is had to the provisions of Article 4 of the Hague Convention which
stipulates that ‘…shall apply to any child who was habitually resident in a contracting
state immediately before any beach of custody or access rights.’

[154] In terms of Article 21 of the Hague Convention ‘[a]n application to make
arrangements for organising or securing the effective exercise of rights of access
may be presented to th e Central Authorities of the Contracting States in the same
way as an application for the return of the child’. The Central Authorities are bound
by the obligations of co -operation which are set forth in Article 7 to promote the
peaceful enjoyments of acce ss rights and the fulfilments of any conditions to which
the exercise of such rights may be subject. It is accepted that the Central Authority
is obligated to take steps to remove, as far as possible, all obstacles to exercise of
such rights. The Central Authorities, either directly or through intermediaries, may
initiate or assis t in the institution of proceedings with a view to organising or
protecting these rights and securing respect for the conditions to which the exercise
of these rights may be subject.

[155] In light of the fact that the Hague Convention is not applicable it follows that
the Central Authority RSA will not have a mandate to present such an application in
casu. The Family Advocate opined that care and contact be dealt with in terms of the
divorce proceedings.

[156] Pursuant to the interim report filed, the Family Advocate conducted an
enquiry with the parties with a view to mediating care and contact in respect of S[...].
The Family Advocate considered the pleadings as well as the report and
recommendations of Dr Poo n Mak. The Family Advocate illuminated the fact that
they had recommended that S[...] should not relocate, which recommendation was
not noted on the Settlement Agreement. It was further highlighted that the Settlement
Agreement was not endorsed by the Fami ly Advocate and as such, it is noteworthy
that there was no Family Advocate oversight into the finalisation of those
proceedings.

[157] The Family Advocate reported that the issue of the Defendant’s contact
was not capable of being mediated as the Plaintiff and the Defendant both indicated
intractable differences with each other on the issue of Defendant’s contact with S[...].
It is apparent that the parties’ concerns as highlighted during the trial were repeated
to the Family Advocate and does not require restating. The Family Advocate stated
that it is clear from the enquiry that the co -parenting relationship between the parties
is riddle d with conflict and that the parties are acrimonious with each other .
Furthermore, that there is a total lack of communication and a tremendous amount of
hostility.

[158] The Family Advocate accepted the report submitted by Dr Poon Mak as
being the most recent investigation regarding care and contact. The Family Advocate
considered that the report by Dr Mak, addresses both parties adequately in terms of
their relationship and/or bond with S[...]. The Family Advocate opined that whilst the
recommendation of Dr Mak is sensitive to S[...]’s perceived needs, no reasonable
risks are identified for the recommendation of supervised contact and the challenge
with S[...] travelling to Italy.

[159] The Family Advocate submitted that the Defendant’s concerns encompass
potential unnecessary gatekeeping by the Plaintiff. The Family Advocate holds the
view that the Plaintiff’s concerns are not amplified nor supported by evidence about
S[...] travelling to Italy. The Family Advocate furthermore stated that Dr Mak’s
recommendation of supervised contact for 2 years and not 1 year or a shorter time is
without substantiation. In amplification the Family Advocate opined that it is
presumptuous to spe culate that S[...] will or will not have the necessary maturity to
advise on contact within 2 years.

[160] The Family Advocate affirmed that the Defendant and S[...] have developed
a bond with each other and that despite the contact being limited to virtual con tact
same has been meaningful. The Family Advocate has also established that the
Defendant and S[...] have a comfortable rapport with each other and that S[...] is at
ease in the Defendant’s and paternal grandmother’s virtual presence.

[161] Counsel for the Plaintiff argued that the recommendation of the Family
Advocate ought not to be considered as it was not requested in terms of any
directive issued by the court . In this regard, it was argued that the Family Advocate
did not have the benefit of the evidence that came to light during the course of the
trial and has es sentially made recommendations after having consulted with the
parties for an hour . It was contended that the duration of the consultation with the
parties is inadequate for the Family Advocate to come to its sweeping
recommendations and findings.

[162] Counsel for the Plaintiff further submitted that the recommendations of the
Family Advocate cannot be preferred above that of Dr Mak and painstakingly
identified submissions that were made by the Family Advocate which are at odds
with that of Dr Mak. In this rega rd, Dr Mak carefully set out why S[...] should feel
secure and why supervision would be necessary. This based on the Plaintiff’s
perception that the Defendant would attempt to keep S[...] with him. The Plaintiff has
a legitimate concern that the Defendant would make good on his threats that he
would kidnap S[...].

[163] The Defendant on the other hand, submitted that regard is to be had to the
fact that he has no criminal record. He regarded the Family Advocate’s Report to
have gone in his favour. The Defendant contended that the Family Advocate was the
only impartial and rational party as he was not consulted by Dr Mak and neither was
he part of the process. The Defendant however remained steadfast that he will not
go to Hong Kong as he would be compromised. In this regard, he recounted that the
Plaintiff’s father had on a previous occasion assaulted him. The Defendant placed
on record that he would be pursuing his contact rights through the Italian authorities

Discussion

[164] It is evident that the Settlement Agreemen t which was made an order of
Court on 17 September 2020 under case number 14777/2019 cannot be given effect
to. The Defendant has emphatically stated that he would not be travelling to Hong
Kong because he believes he is compromised. It bears mentioning that the
Defendant in an email to the Plain tiff dated 10 March 2023, was willing to travel to
Hong Kong. In this regard he stated:

‘Please can you buy me a ticket from Ronchi Airport…I need your address, so
that I can find a hotel near your house. As you know, I cannot navigate the
transport system in Hong Kong at all…I will need you to bring S[...] to me, or to
a sport (sic) that is within walking distance from my Hotel on a daily
basis…please can you recommend some affordable accommodation…’71

[165] The Defendant at the time of writing this email, did not express any concern
about his safety. He has made an about turn in this regard. In the same email, the
Defendant stated that:


71 Index A, Pleadings, page 127.
‘…Italy does not have any laws that stop a child from leaving the country with
another parent without permission. Italy does also in fact accept & honour
South African settlement agreements. There is no way that I can possibly keep
S[...] in Italy. As an alternative to me visiting Hong Kong, I would like to pay for
your return ticket & that of S[...] to Italy & put you up in the Casa Bianca Hotel
near my house at my expense. It is far more affordable for me and you to go to
the tourist thing while I am spending time with S[...]…’

[166] This has not allay ed the fears of the Plaintiff if regard is had to threats
made by the Defendant wherein the Defendant accused the Plaintiff of kidnapping
S[...] notwithstanding the fact that there is a mutually agreed to Settlement
Agreement that regulated the relocation of S[...]. In an email, dated 20 January 2024,
the Defendant stated that “[a] man that has nothing to lose is the most dangerous
type of man that there is”. He also stated that he deems it best for S[...] to live with
him in Italy. The Plaintiff believes that the Defendant will make good on his threats to
kidnap S[...].

[167] Dr Mak is alive to the fears of the Plaintiff which could easily be felt by S[...].
Dr Mak stated that one of the greatest fears that the Plaintiff had was that the
Defendant would abduct S[...]. Dr Mak stated that even if such fears were
ungrounded, it was inevitable that S[...] would pick up the anxiety and fear of the
Plaintiff. Therefore, it is imperative for S[...] to experience the Defendant in a safe
environment so that the relationship of trust can be built. Dr Mak propose d that once
trust is built and S[...] is more mature, meeting out of Hong Kong and visiting the
Defendant in Italy can gradually be introduced.

[168] Inasmuch as Counsel argued that the court is not to have regard to the
recommendations of the Family Advocate, it is my view that it was important for the
Defendant to have had an opportunity to be interviewed. It is therefore imperative for
this court to have regard to the Defendant’s views and apprehensions; which factors
are to be considered together with the evidence, when making a decision concerning
the best interest and welfare of S[...].

Conclusion

[169] I echo the sentiment expressed by the Family Advocate that it is imperative
that the parties endeavour to set aside their conflict as is aptly stated in T v T 72
where the court held:

‘Parties must put aside their differences and that if the adults do not manage to
resolve things by communicating with each other, the children inevitably suffer
and the adults may also pay the price when the children are old enough to be
aware of what is going on. It is a great shame that sound advice does not
appear to have been heeded. It is a tremendous privilege to be involved in
bringing up a child. Childhood is over all too quickly, and whilst I appreciate that
both sides think that they are motivated only by concern for the children, it is
still very sad to see it being allowed to slip away whilst energy is devoted to
adult wrangles and to litigation. What is particularly unfair is that the legacy of a
childhood tainted in that way is likely to remain with the children into their own
adult lives.’

[170] This court accepts without any hesitation that the Plaintiff and Defendant
love S[...] and ultimately want what will serve her best interest. However, the zealous
pursuit of the Defendant to have physical contact with S[...], has met with a walled
response from the Plaintiff and to a measure, justifiably so if regard is had to the tone
of various correspondences, wherein demeaning expletives were used and threats
were made. The Defendant must be mindful of what he says as once those words
are released, it c annot be retracted. The trial bundle is replete with numerous
examples of threats and derogatory remarks not only directed to the Plaintiff, but her
attorney and various other professionals.

[171] In my view, t he threats have legitimately triggered concer n which has
ultimately informed the cautious approach proposed by both Dr Mak and the Family
Advocate. The recommendations of Dr Mak included:


72 (2010) EWCA Civ 1366 AT 49.
(a) That the video contact be continued in terms of the current arrangement
namely 20 minutes during mid -week and 45 minutes during weekends. She
also suggested that flexibility be introduced with both parents having the right
to change the set times, with prior notice in view S[...]’s increasing school
work and activities. Dr Mak strongly recommended that this arrangem ent be
reviewed in 2 years’ time to assess its relevance and significance to S[...];

(b) Physical contact in terms of visits should be conducted in Hong Kong where
S[...] feels safe and secure. It is further recommended that a person familiar to
S[...] should accompany her during the contact until both S[...] and Ms L[...]
feel assured that they would not be separated by any means. Dr Mak also
recommended that this arrangement is also to be reviewed in two years.

(c) Initial physical contact may begin with half days an d extend to whole day
gradually within a year. Overnight stay is subject to how independent the child
could be in terms of self -care routines. She opined that the unfamiliarity of
sleep-over arrangements and environment may affect some children more
than o thers. In her view, the feeling of security is even more salient in this
regard; hence it should not begin until a trusting relationship between S[...]
and her father is firmly established and that S[...] herself is willing to try to
sleep in a place outsi de her home. In her opinion, the duration of contact and
overnight stay should therefore be reviewed together with the other
conditions.

(d) Dr Mak furthermore suggested that in the process of reviewing the
arrangements, in two years’ time, it would be paramou nt that S[...]’s wish and
ideas is to be heard and respected. In this regard, although S[...]’s wish may
have been considered in the context of other factors, she should be informed
of the final decisions and given explanations palatable to her mind.

(e) Dr Ma k proposed that a parenting coordinator or a family mediator be
considered to facilitate collaboration and in order t o overcome the difficulty of
communication between the parents and to minimize further animosity.

[172] The recommendations of the Family Advocate included that S[...] remains
in the primary care and residence of the Plaintiff subject to the Defendant exercising
reasonable contact as follows:

(a) Virtual contact daily for one hour, accommodating flexibility of schedules;

(b) Unsupervised physical contact in Hong Kong at a time to be arranged
between the parties for the first year of the exercise of physical contact and
with the assistance of Dr Mak or any other expert if necessary;

(c) After the expiry of the above, sch ool holidays are to be exercised physically
and divided equally in China and Italy with both parties, S[...] shall travel to
Italy accompanied by a companion designated by both parties;

(d) The parties shall not move S[...] beyond the borders of their respecti ve
jurisdictions of Hong Kong and Italy when relevant without the written consent
of the other.

[173] To my mind, the recommendation of the Family Advocate provides
credence to the recommendations of Dr Mak as the Plaintiff’s draft order is by and
large on par with the recommendations of the Family Advocate. After considering the
aforestated recommendations, it is my view that the review as proposed by Dr Mak
ought to take place within 18 months of the grant of this order with a view to
assessing whether contact could be exercised in Italy.

[174] I also deem it in the best interest of S[...] to extend the current virtual
contact of twice a week to daily contact which is to accommodate flexibility of
schedules; having regard to S[...]’s increasing school work and activities.
Furthermore, the parties are encouraged to agree to be flexible should either parent
request a change of the time and date upon which the envisaged virtual contact is to
occur.

[175] Moreover, it is my considered view that a mirror order must be
incorporated into the fina l order , with due regard to the previous challenges
experienced by the Plaintiff to register the mirror order. To overcome the difficulty in
this regard, an order incorporating a nominal maintenance amount is deemed to be
appropriate in these circumstances , which will allow the Plaintiff to approach the
appropriate Maintenance Court having jurisdiction.

Costs

[176] It was argued that the court is to have regard to the Defendant’s evidence
which were based on false or unsubstantiated allegations; which together with the
substantial misconduct warrants that a cost order be granted against the Defendant.
In addition, it was contended that much of the Defendant’s conduct was mala fide
and obstructive, causing the Plaintiff to incur large and unnecessary legal expenses.
Furthermore, it was submitted that the Defendant caused the Plaintiff to incur
substantial costs in launching a relocation application and for experts to be
employed, before agreeing to the relocation. It was argued that that the Defendant
provided no cogent reason for his refusal to co -operate in the assessment by Dr
Poon Mak.

[177] Counsel for the Plaintiff requested that the cou rt should be mindful that
although the Plaintiff has decided not to proceed at this stage against the Defendant
for a contribution towards S[...]’s maintenance needs, so that the Defendant can
utilise these funds to facilitate his contact to S[...] in Hong Kong, a cost order is on a
different footing. The judgment will be valid for 30 years and as such, it was
contended, this ought to be no reason why the Defendant should not be able to
make suitable financial arrangements in the future to discharge this de bt. More
especially as the Defendant is not impecunious as he enjoys a lifelong usufruct over
the property that he currently occupies.

[178] The Defendant on the other stated that he has no money and cannot pay
the court fees or contribute to S[...]’s financial well -being at this stage. The
Defendant indicated that Hong Kong is “an extremely expensive City” and submitted
that it would be unlikely that he would ever be able to provide S[...] with financial
support in that City, currently or ever. 73 He indicated that Italy assists parents that
are struggling financially with monthly subsidies in the amount of R22 000, together
with medical and schooling. In this regard, it would be easy for him to take care of
S[...] in Italy even if he was never to work a gain and given that he resides in a house
that is fully paid for.

[179] The general rule is that costs follow the result. In other words, the
successful party should be awarded his or her costs. 74 It is also trite that the award
for cost is in the discretion of the court. 75 This court is mindful that this matter
concerned many issues for determination which included a consideration regarding
care and contact.

[180] There is also no general rule that no order as to costs should be made. 76
The matter of Bethell v Bland and Others 77 provides useful guidance to the
approach on costs in matters concerning children where Wunsh J stated as follows: -

"There is no such 'rule' according to the enquiries I have made from many of
my colleagues. The position is rather that in custody and access disputes it is
frequently, by reason of the circumstances of the case, appropriate not to
make an order for costs...

One should not elevate where Courts have not made orders as to costs to
'rule'. At most, they can be guidelines to the exercise of judicial discretion. In
each case, the facts are crucial..."

[181] Opperman J, in JGJ and RV78 referring to Bethell v Bland and Others
aptly enunciated the approach with regards to cases involving the rights and

73 Defendant’s Heads of Argument, para “J”.
74 Cilliers AC ‘Law of Costs’ Butterworths page 1-4; Agriculture Research Council v SA Stud Book and
Animal Improvement Association and Others ; Thusi v Minister of Home Affairs and 71 Other Cases
(2011) (2) SA 561 (KZP) 605-611.
75 Ibid page 2-16(1).
76 Kirsch v Kirsch [1991] 2 All SA 193 (C) at 215.
77 1996 (4) SA 472 (WLD) at 474A – I.
78 (5832/2019) [2020] ZAFSHC 226 (19 October 2020) at para 4 – 5.
protection of minors emphasising that our courts do not wish to discourage parents
from acting in what they believe to be in the best interest of their children.

‘Cases that involve the rights and protection of minors when parents do not
have the ability to establish and manage it, are sue generis as to costs. The
doors of Court must remain open to protect children; even against their own
parents and the parents ag ainst themselves. If costs become an obstacle to
access Courts it will be to the detriment of children.

There is never a “winner” or “loser” in parental rights and responsibility cases
and the general rule that costs follow the event can not be the genera l principle
in these cases. The only outcome must be the successful protection of the best
interest of the child. In addition; section 14 of the Children’s Act 34 of 2005
states that e very child must have access to Court and has the right to bring,
and to be assisted in bringing a matter to a Court, provided that matter falls
within the jurisdiction of that Court...’

[182] It is however settled law that if one of the parties to custody and parenting
proceedings adopts a deliberately difficult and obstructive approach throughout the
litigation, the Court, in appropriate circumstances, should impose a punitive costs
order.79

[183] Whilst the conduct of the Defendant could be perceived as being
deliberately difficult and obstructive, I am not persuaded that his behaviour was mala
fide insofar as it relates to his plight for contact with S[...]. In my view, it is clear that
he is simply an impassioned father pleading to have a relationship with his daughter ;
wanting to be ‘his daughter’s hero”. Therefore, in the exercise of my discretion I
deem it appropriate that each party pay their own costs.

Order:

[184] In the result, the following order is made:

79 See KLVC v SDI & Another [2015] 1 All SA 532 (SCA).

1. A decree of divorce is granted;

2. The Plaintiff and th e Defendant shall exercise their co -guardianship and joint
parental responsibilities and rights to their minor child, S[...], in accordance
with the provisions of the parenting plan, annexed hereto marked “B”;

3. That Defendant will pay maintenance to the Plaintiff in respect of the minor
child in the amount of R1.00 per month. The first payment is to be made on or
before the 7 th of December 2024 and thereafter, on or before the 7th day of
every succeeding month , until the minor child reaches the age of 18 years,
marries or becomes self -supporting, whichever event shall first occur. All
further matter s of maintenance for the minor child is to be dealt with in the
appropriate Maintenance Court having jurisdiction;

4. The Defendant shall forfeit all of the patrimonial benefits arising from the
parties’ marriage in community of property, including but not limited to:

4.1 the proceeds realized from the sale of the immovable properties, known
as 2[...] D[...] Street, Lakeside, Western Cape and 5 D[...] Court, 104
Main Road, Western Cape (“the properties”);

4.2 In this regard, the Registrar of this Court is authorized to sign any
necessary documentation in respect of the transfer of the Defendant’s
undivided half share in and to the properties into the name of the Plaintiff,
alternatively, at the election of the Plaintiff, in respect of the sale and
transfer of the properties to third parties, on behalf of the Defendant.

4.3 Pending the transfer of the properties, and with effect from the date of this
order, the Plaintiff shall be entitled to receive the full rental income in
respect of the properties and all benefits and liabilities in respect of the
properties shall accrue to the Plaintiff;

4.4 the proceeds realized from the sale of the parties’ motor vehicle.

4 The terms of this order, including the Parenting Plan annexed hereto marked “B”,
substitute the terms of the Settlement Agreement entered into between the
parties and made an order of Court on 17 September 2020, under case number:
14777/2019;

5 The Defendant’s counterclaim is dismissed.

6 The Plaintiff is directed to take the necessary steps to apply for a mirror order of
this order within one (1) month from the date of this order.

7 Each party shall pay their own costs.


________________________
P ANDREWS
Acting Judge of the High Court of South Africa
Western Cape Division, Cape Town


APPEARANCES:

Counsel for the Plaintiff: Advocate SB Van Emden
Instructed by: Bernardt Vukic Potash & Getz

For the Defendant: In person

Delivered: 7 November 2024 – This judgment was handed down electronically
by circulation to the parties’ representatives by email.