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in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: 2024 -068431
(1) REPORTABLE: NO
(2) OF INTEREST TO THE JUDGES: NO
(3) REVISED.
DATE: 13 /2/2025
SIGNATURE: MOKOSE SNI
In the matter between:
H[...] E[...] Applicant
and
M[...] M[...] Respondent
JUDGMENT
MOKOSE J
Introduction
[1] The applicant approaches this court with an application in terms of Rule 43 in
which he seeks inter a lia, the primary residence of the minor child, T[...] who was
born on 27 July 2023. The application is premised on allegations of alcohol abuse,
domestic violence and parental alienation. Maintenance has now been resolved and
is no longer an issue between the parties.
Brief Facts
[2] The applicant, a teacher at P[...] Boys' High School, resides at the
accommodation provided to him by the school. The applicant alleges that he has
resided thereat since February 2024 until June 2024 with the respondent who denies
that she is ordinar ily resident at the said premises.
[3] The parties had met in Cape Town at a time when the applicant was
employed at a school, R[...] House. He subsequently left his employ there after an
unfortunate incident had taken place when a co -worker made false allegations about
him. The applicant contends that he left R[...] House with the encouragement and
support of the respondent. He was not dismissed from his employment there.
[4] The parties were married to each other in Cape Town on 23 March 2023, out
of community of property, which marriage still subsists. T[...] was born of the
marriage between the parties. During June 2024 the applicant instituted divorce
proceedings against the respondent and claimed, inter a lia, the primary residence of
the minor ch ild.
[5] The applicant makes serious allegations against the respondent which
includes but not limited to passing out around the toilet after excessive alcohol
consumption; excessive alcohol consumption in the presence of the minor child;
allegations th at the respondent drives whilst intoxicated with the minor child in the
vehicle; allegations that the respondent acts in a violent and abusive manner
towards the applicant and uses inappropriate language in the presence of the minor
child; allegations that the respondent unilaterally circumscribes the applicant's
contact with the minor child; and that the respondent metes out corporal punishment
to the minor child.
[6] The respondent vehemently denies that the parties' primary residence is in
Pretoria de spite it being so alleged by the applicant. She denies all the allegations
against her and challenges the applicant's relief sought in all respects including a
contribution towards the legal costs.
Application to file a further affidavit
[7] The applica nt applies to this court to file a further affidavit. It is alleged that it
is premised on new facts and circumstances which occurred after the issuing and
service of the Rule 43 application. In particular, the applicant makes allegations
pertaining to the applicant's previous employment whereby the respondent, in
answer, alleges that he was dismissed for alleged sexual misconduct; the applicant's
alleged inability to care for the minor child; the respondent's refusal for contact
including blocking the appl icant's WhatsApp communication; the respondents failure
to appear for a scheduled appointment with the office of the Family Advocate; the
respondent's continued alcohol consumption; the applicant's alleged alcohol abuse;
the applicant's failure to contribu te towards the minor child's maintenance; and the
respondent's recent request for assistance to move her assets from Pretoria to Cape
Town.
[8] Ordinarily, and in Rule 43 proceedings, two sets of affidavits are filed, being
the affidavit founding the a pplication and the answering affidavit by the respondent.
The court may, in certain circumstances, exercise its discretion and permit the filing
of further affidavits by the parties. It must be in exceptional circumstances that such
affidavits are permitte d and where the court considers it advisable to do so.1 There
must, however, be a proper and satisfactory explanation as to why the facts or
information contained in the additional affidavit was not placed before the court
earlier and the court must also b e satisfied that the opposing party would not be
1 Riesenberg v Riesenberg 1926 WLD 59
prejudiced which prejudice cannot be remedied by a costs order, by the introduction
of a further affidavit.
[9] Rule 43(5) provides further that the court may hear such evidence as it
considers necessary and may dismiss the application or make such order as it
deems fit to ensure a just and expeditious decision is made. A cursory look at the
applicant's further affidavit furnishes the court with information which is relevant to
this application. Furthermore, it is important for this Court to have all relevant facts
before it. I have not been apprised of any prejudice which will befall the respondent if
this Cour t were to authorise the filing of a further affidavit. Accordingly, I am of the
view that the further affidavit may assist the court in coming to a just and expeditious
decision and is therefore admitted.
Primary Residence
[10] The first issue in this matter is that of primary residence of the minor child.
The applicant admits that the parties were previously resident in Cape Town
however, since February 2024, he contends that they have been resident in Pretoria .
The applicant contends that in June 2024, the parties travelled to Somerset West
from Pretoria on holiday with the minor child and were set to return to Pretoria on 10
July 2024. The applicant further contends that on 19 June 2024 a fight ensued
between t he parties resulting in the parties separating. The applicant attempted to
report a domestic violence incident in Cape Town but was advised to report same in
Pretoria where the parties were ordinarily resident.
[11] The following day the respondent allo wed the applicant to exercise
unsupervised contact with the minor child for a period of four hours only. The
applicant further contends that thereafter, communication between the two of them
was blocked by the respondent for a couple of days after which he was informed that
he may only have supervised contact with the minor child. The applicant was
informed of the reason being that her legal representative had advised her not to
give him unsupervised contact and that such contact should only take place at t he
home of the respondent.
[12] The respondent's legal representatives have now tendered supervised contact
which the applicant contends is unrealistic, impractical and impossible. The contact
tendered is Tuesdays and Thursdays and alternative Saturdays and Sundays at the
respondent's home in Somerset West. The applicant contends that there are no
proper reasons proffered for supervised contact as he is more than capable of being
the minor child's primary care giver. Furthermore, the minor child is no lo nger
breastfed, nor is he reliant on the respondent for sustenance; the applicant is not
abusive nor aggressive; he is an educator and fully aware of the correct manner in
instilling discipline; he has formed an attachment with the minor child; he has care d
for the minor child unsupervised and attended to all necessary parenting tasks; and
that he has a support structure in Pretoria where he had been enrolled in a local
creche.
[13] The respondent denies that the applicant has a bond with the minor chil d and
contends that the applicant has no knowledge of caring for a minor child. She further
alleges that although she had in the past granted the applicant unsupervised contact,
she had obtained instructions from her legal representative to the contrary. Moreover,
the respondent contends that the applicant has "questionable family values ": an
allegation which it is noted, is not made in the plea.
The Law
[14] As upper guardians of all minor children, this Court is empo wered and is also
under a duty to consider and evaluate all relevant facts placed before it with a view
to deciding the issue, which is of paramount importance, being the best interests of
the minor child. The Court has extremely wide powers in establishin g what is in the
best interest of the minor child and is not bound by procedural strictures or by the
limitations of the evidence presented or contentions advanced by the respective
parties.2
Evaluation
2 J v J 2008 (6) SA 30 (C) at para 20
[15] The applicant contends that the respondent's behaviour as described above
requires censure and is accordingly to the prejudice of the minor child. Furthermore,
he contends that he has a right to a relationship with his minor child, which is being
hindered, contrary to his right to exercise parental rights and responsibilities.
Furthermore, the applicant contends that the minor child has a right to be protected
from family violence, something he has been exposed to as described above.
[16] I accept that the minor child has been in the primary care of the respondent. I
also accept that mothering is not only the function of a mother but that of both
parents. The best interests of the minor child need to be considered, and the facts
and particular circumstances of each case need also be considered.
[17] The child in this case is now about 15 months old. He has been living
primarily with his mother in the Western Cape although it is disputed that the parties'
primary place of residence is in Gauteng. The applicant also alleges alcohol abuse
on the p art of the respondent as also a propensity for violence. This is of course
denied by the respondent. The applicant is also concerned for the minor child's
safety citing the respondent's intention to mete out corporal punishment to the minor
child. These ar e all circumstances which the applicant has requested the court to
take into consideration in this application for the primary residency of the minor child
being awarded to him.
[18] I have considered this matter and all the circumstances which have been
brought to the attention of this Court. It is not the intention nor the job of this court to
look for the "perfect parent" between the two parties. However, as the upper
guardian of all minor children, I am enjoined to decide the best interests of the minor
child in the circumstances. No evidence is before this court that the applicant is a
bad father and that he will harm the minor child in any way. Furthermore, he is
entitled to contact with the minor child on the same basis as the respondent.
Contribution towards legal costs
[19] The applicant claims a contribution be made by the respondent in the sum of
R50 000,00. Annexed to the application is a proforma account for fees to be
expended in the conclusion of the divorce. The amount quoted is exclusive of
counsel's fees which are in themselves estimated to be in the region of R34 500,00.
The applicant contends that he is a teacher with a fixed income and that the
respondent has caused him to incur unnecessary expenses by virtue of her
constructive conduct i n not returning to Pretoria.
[20] When considering a contribution towards costs, the court relies on the
principle of "equal footing" between spouses. This means that the financially weaker
spouse should be provided with sufficient funds to adequately p resent their case in
divorce proceedings, regard being had to the parties' financial position and the
complexity of the case. The quantum of the contribution is in the discretion of the
court which will assess the specific circumstances of the case.
[21] The applicant contends that he is a teacher and earns very little money for
him to be able to litigate on an "equal footing" with the respondent who works as an
SAP specialist. The respondent denies that she is employed and further contends
that she has no income.
[22] I have looked at the financial disclosures of the parties and I failed to
ascertain any earnings on the part of the respondent. I did not see that the
respondent is litigating at a much higher level to the applicant. Furthermore, the
contribution for costs is not intended to reimburse the applicant for unnecessary
expenses which he alleges have been incurred. Accordingly, I dismiss the relief
sought by the applicant in respect of a contribution towards the legal fees.
Conclusion
[23] In light of the finding pertaining to the issue of primary residence, I am of the
view that an urgent assessment and report be filed by the office of the Family Court
setting out the best interests of the minor child in view of the numero us allegations
and cross allegations of the parties. The court will then be able to make an informed
decision as to the best interests of the minor child. Accordingly, the following order is
granted:
1. The parties shall retain the full parental rights and responsibilities in
respect of the minor child, T[...].
2. Primary residence of the minor child shall continue to vest in the
respondent, pending the urgent assessment and report by the office of the
Family Advocate.
3. Pending the outcome of the assessme nt of the office of the Family
Advocate, the applicant shall be entitled to exercise contact every alternate
weekend from Friday 17:00 to Sunday 17:00.
4. The application for a contribution towards the legal costs is dismissed.
5. The parties are to bear their own costs in respect of this Rule 43
application.
MOKOSE J
Judge of the High Court of South Africa
Gauteng Division, Pretoria
For the Applicant: Adv A Koekemoer
On instructions of: Zinta Coetzee Attorneys
For the Respondent: Adv A Korf
On instructions of: MLV Attorneys
Date of Hearing: 8 October 2024
Date of Judgment: 13 February 2025