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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
CASE NO: 1909/2024
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED.
DATE: 13/05/2025
SIGNATURE
In the matter between:
B[...] P[...] M[...]
(Identity Number : 8[...]) APPLICANT
AND
J[...] L[...] M[...] RESPONDENT
(Passport Number : G[...] )
JUDGMENT : RULE 43(6) APPLICATION
MANGENA AJ
[1] On the 21 August 2024, Morgan AJ issued a Rule 43 order at the instance of
the Respondent. There is consensus between the parties that the order contains
errors in certain respects, more especially in relation to the cash contribution
towards the maintenance of the children. Nothing turn s on this.
[2] Subsequent to the order, the office of the family advocate conducted an enquiry
into what would be in the best interests of the minor children with regard to
primary residence, care and contact. The family counsellor interviewed both the
childr en and their parents and made her conclusions based on what she
established during the inquiry. She recommended the following: -
2.1 Both parties remain co -holders of full parental responsibilities and rights
with regard to care, guardianship and maintenance of the children.
2.2 The primary residence of the children be retained by the Mother.
2.3 The parental responsibilities and rights with regard to contact be retained to
the father as follows: -
2.3.1 Contact to be exercised every second weekend on Friday to Monday
morning. One day sleepover during the week. The one day during the
week will be only a pplicable when the mother is still residing in
Polokwane.
2.3.2 Short school holidays should be alternated between the parties and
long school holidays should be shared equally between the parties.
2.3.3 Parties should make arrangements with regard to special days
celebrations.
2.3.4 Telephone contact at reasonable times.
2.3.5 Additional contact should be per arrangements between the parties.
[3] Over and above the recommendations mentioned above, the family counsellor
stated as an advice that “it is the parties responsibility to f oster good feelings
about future time to be spent with the other parent. It is important for the parties
to also: -
• Honour their obligations to provide for their children.
• Always show respect for each other in front of the children.
• Keep arrangements, or
• Be flexible, and make effort to modify arrangements when the other parent
has conflicting commitments.
[4] The report was made available to the parties through their legal r epresentative
who had an obligation to interpret it to them as part of their duty towards the
court. It will be appropriate to recall what Satchwell J said in Soller NO v G and
Another, 2003 (5) SA 430 WLD . She said: -
“[22]The office of the Family Advocate was created in
terms of the appropriately named “mediation in certain
Divorce Matter Act”. The title of this legislation comprises
within its use of the work ‘mediate’, the concepts of
‘negotiation’ perhaps leading to a settlement and in so
doing acting a s a sort of go -between the parties. If such
attempts at moderation of disputes through discussion and
counselling are unsuccessful then the Family Advocate, as
required by legislation, reports to the Court on the facts
which were found to exist and makes r ecommendations
based on professional experience. In so doing the Family
Advocate acts as an advisor to the court and perhaps as
a mediator between the family who had been investigated
and the court.
[23] The Family Advocate is not appointed the
representa tive of any party to a dispute -neither the
mother, father or any child. In a sense, the Family
Advocate is required to be neutral in approach in order
that the wishes and desires of disputing parties can be
more closely, examined and the true facts and
circumstances ascertained.
[24] The function of the Family Advocate has been
described ‘to be of assistance to a court by placing facts
and considerations before the court. The Family Advocate
should make a balanced recommendation and should not
take sides ag ainst one party in favour of the other .
(Whitehead v Whitehead, 1993 (3) SA 72 (SE)’.”
[5] Had the parties heeded these words and accepted that an office of the Family
Advocate is an independent structure created to provide support to the court as
an upper guardian of all minors, this application together with its sister cross -
application would not have been necessary. This is not to say that a court is
bound holus bolus by the recommendations of the Family Advocate. There may
be and there are instances whe n a court, acting diligently, may reject the
recommendations. There however has to be a good reason to disregard the
report and its recommendations. This is so because a court is not possessed of
the skills to enquire into and investigate the physical and emotional well being of
the minor children. In the rare instances where the court may feel obliged to take
over the responsibility of the Family Advocate and conduct an enquiry, it needs to
do so fully aware of its limitations and conscious acknowledgemen t that the
legislature had assigned that role to the Family Advocate. Satchwell J puts it
between when she says: -
“The Family Advocate provides a professional and
neutral channel of communication between the
conflicting parents (and perhaps the child) and the
judicial officer”.
[6] With the above said, I return to the matter at hand. The applicant seeks to vary
the Rule 43 order based on what he calls changed circumstances, in particular
the observations made by the family counsellor during the enquiry.
[7] In the report, the Family Counsellor stated as follows: -
“The undersigned wishes to address the information
around the mother’s way of excluding the father on
important decision concerning the children’s wellbeing,
being the primary care -giver does not mean taking sole
decisions concerning the children, these include taking
the children to therapy and excluding the father from
getting progress reports”. Another issue is denigrating
or talking negatively about the father to the children.
This might be do ne innocently but it has long term
effects on the emotional and psychological wellbeing of
the children”.
[8] The Family Counsellor further states that the older child had informed her during
the interview that his mother told him that his father used to go out a lot to drink
but he has not seen that. The child’s way of answering questions according to
the family counsellor “suggests that he avoids choosing sides, even though there
is a suggestion that the mother had tried to coach him”.
[9] The Applicant conten ds that the Family Advocate’s report has revealed that the
respondent has embarked on a deliberate and concerted effort to alienate him
from his children. Unless this is curbed, it will result in him being perceived as a
bad person by his children who may not want to associate with him. This, he
argues, is not in their interest as he is their father and like all other children they
deserve to have him in their lives. Apart from the wellbeing of the children, it is
also not good for him as he needs to have a relationship with them.
[10] In support of his contention that the respondent wants to cut him out completely
from interacting with the children, he states that on several occasions she (the
Respondent) failed to hand -over the phone to the children when he wanted to
talk to them. She simply ignored his calls until he asked a gardener helping in
the house to check on her. The feedback he got was that the respondent is fine
but is just not answering the phone.
[11] The Applicant’s fears may not be rejected out o f hand. Parental alienation
syndrome (PAS) has serious emotional effect on the wellbeing of the children. In
G v G, 2003 (5) SA 396 (ZHC) some of the symptoms were mentioned as
follows: -
• The child has a relentless hatred for/toward the targeted parent.
• The child parrots the obsessed alienator;
• The child does not want to visit or spend any time with the targeted parent;
• Many of the child’s beliefs are enmeshed with the alienator;
• The child’s beliefs are delusional and frequently irrational;
• The obsessed al ienator is not intimidated by the court;
• The child’s reasons are not based on personal experiences with the
targeted parent but reflect what he/she is told by the obsessed alienator;
• The child has no ambivalence in his or her feelings -it is all hatred wit h no
ability to see good;
• The child has no capacity to feel guilty about how he or she behaves
towards the targeted parent or to forgive any past indiscretions;
• The child shares the obsessed alienator’s cause -together they are in
lockstep to denigrate the hated parent;
• The child’s obsessional hatred extends to the targeted parent’s extended
family without any guilt or remorse.
[12] It is said that this syndrome becomes worse if the child has no time with the
targeted parent. Time is on the side of the alienati ng parent. Children who are
exposed to PAS may develop mental illness and can have long -term
consequences.
[13] To avoid the long -term effect of PAS on the children, applicant seeks to vary the
original Rule 43 order to create a situation where he is able to s pend some
considerable amount of time with them. In this way, it is submitted, he will have
enough time to ameliorate the negative comments the Respondent makes
against him whenever she is with the children. He proposes to have shared
residency with the Re spondent where they each alternate to have the children in
their care and custody. He says this will not be disruptive in any way as both he
and the Respondent stay in the same farm but in different houses which are
close to each other. In the alternative he seeks that the recommendation of the
Family Advocate be implemented with a slight change allowing him a longer
period with the children, from Thursday after school to a Monday morning before
school on alternative weekends and every other Thursday from a fter school to a
Friday morning before school. (i.e this will be on the weekend that the children
are with the Respondent). Tight to this will be the appointment of an independent
psychologist to evaluate the best interests of the children.
[14] In addition t o the above, he also seeks to vary the spousal maintenance from
R22 722.00 per month to R15 000.00 . He says this is because he cannot afford
as over and above this he pays R10 000.00 towards the maintenance of the
children as well as their medical aid cove r which includes the Respondent.
[15] The Respondent is opposing the relief sought by the applicant and has brought
her own Rule 43(6) application in cross. She seeks to have an order directing
applicant to pay rental deposit and rental expense capped at R25 000.00 per
month for a property of her choice in Polokwane. The applicant must further be
ordered to assist her by making transport vehicles and workers available for her
relocation. She also needs additional R100 000.00 towards legal fees as the
initial R100 000.00 ordered by the Rule 43 court has been exhausted.
[16] She motivates for the relief in the answering affidavit and states that the divorce
has become acrimonious so much that she does no longer feel safe to stay at the
farm controlled by the applicant. She says applicant spies on h er through his
employees.
[17] Regarding the costs contribution, she says that the R100 000.00 initially awarded
to her was exhausted by the litigation she was forced to embark on including
defending herself on this Rule 43(6) application. She argues that Appl icant is
determined to make life unbearable for her and has even ordered employees
(domestic workers and gardeners) to stop performing services at her home. If
they are to work, their salaries will be deducted from the amount he contributes
towards mainten ance.
[18] I have had regard to the documents attached to the affidavits in the adjudication
of the substantive issues requiring my attention. I may as well just indicate that
the majority of the documents attached to the affidavits were either irrelevant or
unnecessary and indeed the parties did not even refer to them in their heads of
argument or in amplification during oral subm issions. Once again, the legal
practitioners in this case, failed to heed many admonitions by the court regarding
the abuse of Rule 43 procedures. In Du Preez v Du Preez, 2009 (6) SA 28
TPD, the court said :-
(3) Rule 43, it is well known, is a special procedure aimed
at the expeditious and inexpensive resolution of maintenance
issues pendente lite. In Colman v Colman 1967(1) SA 291C
at 292A Theron J pronounced upon the purpose of and
approach to Rule 43 proceedings as follows: -
‘The whole spirit of rul e 43 seems to me to demand that
there should be a very brief statement by the applicant of the
reasons why he or she is asking for the relief claimed and
equally succinct reply by the respondent, and that the court is
then to do its best to arrive expediti ously at a decision as to
what order should be made pendente lite.
(4) The applicant’s papers are anything but brief and the
respondent’s reply is less that succinct. The tendency by
parties, aided by their legal representatives, to engage in
prolixity in Rule 43 proceedings has been criticized more
than once by courts across the country. Yet the criticism has
been insufficiently heeded. I align myself with the remarks
made by Kroon J in Visser, 1992(4) SA 530 (SE) at 531D
where he observed: -
“It is my expe rience, and I understand that of my Brothers to
be the same, that there is a tendency for the provisions of
rule 43 to be disregarded and for the applications and the
reply thereto to assume voluminous proportions. That
practice must be firmly discouraged.
(5) Prolixity in a rule 43 proceeding is an abuse of process
because it defeats the purpose or object of the rule … which
is to provide for an expeditious and inexpensive resolution of
marital disputes pending divorce.
[19] With regard to the variation of the Rule 43 order on primary care, I have already
remarked that the court hearing an application on the “best interests” of the child
is enjoined to give due regard to the report of the Family Advocate. The
observations made by the family counsellor that the Respondent is influencing
the children to be negative towards their father is a matter of serious concern.
The effects of parental alienation outlined in the preceding paragraph requires of
the court to intervene and arre st the situation before it harms the relationship
between the children and their father.
[20] The report makes it clear that the Applicant is a good father, and the children
would want to continue to have a good and healthy relationship with him. This is
in their interest as it is important for children to grow in an environment where
they have access to both parents. It therefore becomes incumbent upon those
parents to behave responsibly around them and ensure that they do not alienate
children from each other .
[21] I am persuaded that Applicant has made a case for the variation of the Rule 43
order to provide for more time with the children than it was initially ordered. I say
so because at the time the Rule 43 order was made, the Family Advocate had
not conducte d the enquiry and had this information been available to the court,
the terms would have been different.
[22] Regarding spousal maintenance, I am not persuaded that Applicant has
advanced a case to warrant variation. All what he said was that he cannot afford
but has not taken the court in his confidence by disclosing how he had been
paying all the expenses prior to the divorce. It needs to be stated that the
Respondent is still his wife until the divorce court rules otherwise. For as long as
he still married to her and she is in need of support, he should carry out that duty
unfailingly – of course within his means. On the available evidence before me, he
can afford to pay the amount ordered by the Rule 43 court as an interim
maintenance. He however still reta ins the right to request that the court fixes a
lesser amount as maintenance post -divorce.
[23] With regard to the respondent’s counter -application I am not persuaded that she
is entitled to the relief she seeks. It only needs to be stated that the court has
already ordered that she stays with the children in the house they are familiar
with. The court was also aware that it will be easy for the Applicant to provide the
support required regarding domestic and gardening services. Her relocation to
Polokwane will result in her uprooting the children in circumstances where there
is no agreement between them and this may not be good for the children.
[24] On the issue of additional cost contribution of R100 000.00 , the court has already
determined what it considere d to be reasonable cost. Parties to divorce
proceedings should always be aware that litigation is expensive and to the extent
that they may be able to resolve their issues amicably, they should work very
hard to do so in order to save whatever money they m ay have towards the
welfare of their children. When they fight endlessly over small issues like handing
over a telephone to a child so that he/she can talk to the other parent, it is their
estate and their children’s inheritance that suffers. Van Den Heeve r J’s words
more than 40 years ago are worth recalling. He said: -
“The facts laid before me in this application if accepted
emphasise the pettiness and malice that adults …. are capable
of where the bonds of marriage chafe. A Free State Judge once
commen ted that the lawyers seeking the appointment of a series
of curator ad litem seemed intent upon ensuring that the estate
was not frittered away amongst the heirs. In the present, a
different context. I would stress what I conceive to be the moral
duty of l awyers: to dissuade their clients from indulging in petty
bickering to the good of no one save the lawyer’s finances. One
realises of course that clients do not always heed their lawyer’s
advice in this regards ……….
The entire matter should be settled and should not be difficult to
settle if both parties decide not to be greedy and selfish, and
bear in mind that the prime aim should never be to hurt the
opposition. That “opposition” was for half a lifetime a partner, and
a partner in the fundamental busines s of producing and raising
and launching into the world a family" Belford v Belford , 1980
(2) SA 843 (CPD) .”
[25] I do not find it necessary to deal with the issue of costs. Each party will pay its
own costs.
[26] Consequently, the following orders are made: -
[26.1] The initial Rule 43 order issued by this court on 24 August is varied
in so far as it relates to the Applicant’s reasonable access to the
minor children as follows: -
26.1.1. Primary care is awarded to the Respondent pending the
finalisation of the divorce proceedings with specific rights of
contact to be awarded to the Applicant as follows: -
26.1.1.1. Alternative weekends from a Thursday after school
to a Monday morning before school.
26.1.1.2. Every other Thursday, from after school to a Friday
morning before school.
26.1.1.3. All holidays to be shared equally, with the
understanding that Christmas, New year and Easter
alternate between the parties.
26.1.1.4. Contact on Father’s Day and vice -versa.
26.1.1.5. Contact on the Applicant’s birthday from the day
before from after school or 12h00 in the afternoon to
the next morning before school or 12h00 in the
afternoon and vice versa applied to the Respondent.
26.1.1.6. Daily telephonic electronic format.
[26.2] The Applicant shall not enter the marital home unless a case of
emergency exists or invited by the Respondent.
[26.3] The Applicant shall continue to unsure provision of domestic and
gardening services to the Respondent’s house until the finalisation
of the divorce proceedings.
[26.4] The parties shall jointly approach the HPCSA to appoint an expert if
the Applicant requires one to conduct forensic investigation to
determine the best interest of the children about primary care. The
Applicant shall be solely liable for the costs of the expert so
appointed.
[26.5] Respondent’s cross application is dismissed.
[26.7] Each party shall pay its own costs.
____ ___________________
M. MANGENA
ACTING JUDGE OF THE HIGH COURT
LIMPOPO DIVISION, POLOKWANE
APPEARANCES
FOR APPLICANT : ADV. F BOTES SC
ZINTA COETZEE ATTORNEYS
PRETORIA
C/O DDKK ATTORNEYS INC
POLOKWANE
FOR RESPONDENT : ADV. G. KASSELMAN
JARVIA JACOBS RAUBENHEIMERS INC
PRETORIA
C/O PRATT LUYT & DE LANGE
POLOKWANE
HEARD ON : 08 MAY 2025
DELIVERED ON : 13 MAY 2025