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
KWAZULU-NATAL LOCAL DIVISION, DURBAN
CASE NO: 11572/2013
In the matter between:
N[...] J[...] PLAINTIFF
and
O[...] J[...] DEFENDANT
ORDER
The following order is granted:
1. In terms of s 28 of the Children’s Act 38 of 2005, the defendant’s parental
responsibilities and rights in respect of the minor child, S[...] O[...] J[...] , a minor boy
born on 25 June 2009, are terminated.
2. The issue of maintenance in respect of S[...] O[...] J[...] is referred to the
maintenance court for hearing.
3. In terms of s 9(1) and (7) of the Divorce Act 70 of 1970, read with s 9 of the
Matrimonial Property Act 88 of 1984, the defendant forfeits, in favour of the plaintiff, his
entitlement to share in the patrimonial benefits of the marriage in community of
property, which shall include:
3.1 the pension benefits of the plaintiff held in the Government Employees Pension
Fund;
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3.2 her benefits in and to her retirement annuity with Liberty Life;
3.3 the immovable property described as Portion 528 (of 255) of Erf 1[...] C[...] ,
Registration Division FT Province of KwaZulu-Natal, in extent 186 square meters
and physically situated at 3[...] S[...] Road, Westcliff, Chatsworth.
4. The defendant shall sign all such documents and take all such steps necessary
to effect registration of transfer into the plaintiff’s name of the defendant’s rights in and
to the property and, should he fail or refuse to do so, the Sheriff or his lawful Deputy is
authorised to and directed to sign all such documents and take all such steps
necessary on behalf of the defendant to effect registration of transfer into the plaintiff’s
name of the defendant’s rights in and to the property;
5. The defendant is to bear the plaintiff’s costs occasioned by the divorce action,
including any reserved costs.
JUDGMENT
Henriques J
Introduction
[1] This is a divorce action with a somewhat long and acrimonious histo ry, not too
uncommon these days in divorce trials. The action has taken some time to be finali sed
due to, inter alia, a change in attorneys by both parties , the personal misfortunes of the
plaintiff, the amendment of the pleadings , the defendant’s lack of legal representation
and the Covid-19 pandemic.
[2] On 10 October 2025, I granted the following orders:
(a) a decree of divorce; and
(b) the remaining issues for determination, being the parental rights and
responsibilities of the minor child , including contact and care , and the division of the
joint estate were adjourned sine die to be dealt with in a written judgment.
[3] At that sta ge of the proceedings, having heard the evidence , and the oral and
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written submissions of the parties and the curator ad litem, I was satisfied that both
parties consented to be divorced and were ad idem that the marriage had irretrievably
broken down , given their separation since 2012 . This judgment now deals with the
remainder of the relief.
Pleadings
[4] At the institution of the action by the plaintiff in 2013, the plaintiff s ought the
primary residence of the two minor children, monthly maintenance, a 50% contribution
to educational and medical expenses and was amenable to the defendant having
reasonable rights of contact.
[5] Additional orders were sought directing that the defendant forfeit the following
patrimonial benefits of the marriage in community of property:
‘10.2.1 the Plaintiff’s interests/benefits in and to the Government Employees Pension
Fund (the Fund) as contribution s to such Fund have been made solely by the Plaintiff and her
employers without any contribution by the Defendant;
10.2.2 the Plaintiff’s interests/benefits in and to the Plaintiff’s Retirement Annuity with
Liberty Life as the premiums have been made solely by the Plaintiff without any contribution by
the Defendant;
10.2.3 the immovable property described as PORTION 528 (OF 255) OF ERF 1[...]
C[...] REGISTRATION DIVISI ON FT PROVINCE OF KWAZULU -NATAL IN EXTENT 186
SQUARE METERS AND PHYSICALLY SITUATED AT 3[...] S[...] R[...] Road, Westcliff,
Chatsworth (the property) which was purchased by the parties from Mrs Amurtham Chetty (the
Plaintiff’s mother) on the 8 th October 2008 for the sum of R340 000.00 and the property is
registered in the names of both parties and it is the Plaintiff who has undertaken to pay such
purchase price whereas the Defendant refuses to do so whereupon the Plaintiff has signed an
Acknowledgement of Debt in favour of the Plaintiff’s mother for payment of the purchase price.’
[6] The plaintiff also sought ancillary orders relating to the transfer of the immovable
[6] The plaintiff also sought ancillary orders relating to the transfer of the immovable
property in the event of the defendant refusing to sign such documents.
[7] The defendant , in opposing the divorce , sought the primary residence of the
minor children, a similar order for maintenance from the plaintiff and a division of the
joint estate.
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Issues
[8] Given the passage of time since the institution of these proceedings, and certain
events, the issues which remain for determination in this action are the following:
(a) the primary residence of the remaining minor child of the marriage , S[...] O[...]
J[...] (S[...]), a boy born on 25 June 2009;1
(b) contact, care and maintenance in respect of S[...]; and
(c) forfeiture of the patrimonial benefits of the marriage in community of property.
[9] I do not propose to deal with all the evidence presented during the trial, as it is a
matter of record, and will simply highlight those aspects which are relevant to the
determination of the issues. Various exhibits were handed in during the course of the
trial, which are a matter of record, to which I will refer in so far as they are relevant.
What follows is a brief summary of the evidence.
Evidence
[10] The parties were married in community of property at Durban on 5 December
2006, and twin boys , S[...] and D[...], were born of such marriage in June 2009. The
plaintiff testified that she resorted to fertility treatment to fall pregnant. The plaintiff
indicated that from 2009 until 21 June 2012 she, the defendant and their sons resided
at the matrimonial residence which was her in -law’s residence in Ettrick Road, Bluff.
She and the defendant formally separated on 29 June 2012.
[11] After their separation in June 2012, they lived apart, save for a brief period of two
weeks whe n they lived together, but not as husband and wife. Both parties are in
agreement that they should be divorced , however, differ as to the reasons for the
breakdown of the marriage : the plaintiff contending that she was subjected to verbal,
physical, emotional and financial abuse, while the defendant alleges that she had an
extramarital affair and was emotionally unstable.
[12] The p laintiff indicate d that the ma rriage has been plagued by both verbal and
physical abuse on the part of the d efendant, as a consequence of which he made
physical abuse on the part of the d efendant, as a consequence of which he made
married life intolerable and she was forced to leave the matrimonial home. The former
1 It is common cause that twin boys were born of the marriage between the parties . D[...], the other twin,
tragically passed away during the course of litigation on 10 October 2018.
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matrimonial home is that of the defendant’s parents.
[13] When the plaintiff testified, she did not testify about the events in chronological
sequence and as a consequence the events will not be detailed in chronological
sequence. The plaintiff testified that in February 2011 , when she was no t residing with
the defendant , she received a report of a shooting incident involving the defendant
outside a female's house in Merebank. A work colleague had contacted her after seeing
her sons at hospital. Concerned for the safety of her sons , and given D[...]’s condition,2
coupled with the fact that she had been thrown out of the joint matrimonial home in
January 2011, she attempted to contact the defendant telephonically to find out why the
children were at the hospital . H e informed her that he had been shot. When she
questioned him further, he responded that she had hired a hitman to shoot him. Despite
this response, s he was concerned and tr ied to get information about what had
transpired but the defendant was very evasive.
[14] After reporting for work, a colleague transported her to the hospital. The
defendant was in the presence of five other patients in the ward and he informed her
that he had been shot in the abdomen. She was concerned , because from her
experience as a police officer, she was not certain if he would survive , given the
location of the wound . In addition, she was concerned that he was in a general ward
and did not appear to be receiving the appropriate treatment for someone who had
been shot in the abdomen.
[15] She also tried to speak with the defendant’s family, who were present, for her to
take D[...] and S[...] home with her. Both paternal grandparents refused. The defendant
called her a ‘bitch’ in front of five other patients. She was in uniform at the time and was
extremely embarrassed. Her work colleague attempted to intervene to stop the
defendant from being abusive, but the defendant continued to hurl abuse.
defendant from being abusive, but the defendant continued to hurl abuse.
[16] Whilst at the hospital, she noticed that he was still in the clothes he had been
shot in and out of concern , asked him if he had enough clothes for the day and if the
surgery had been scheduled. At the time , the defendant was still on her medical aid.
2 D[...] had a medical condition known as micro lissencephaly , commonly referred to as ‘smooth surface
brain’.
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Because the defendant was uncooperative and was hurling abuse at her , she left. She
did not do anything about the abuse at the hospital. By that stage, she had not seen her
children since January 2011.
[17] That Sunday, a neighbour telephoned her to inform her that there was an article
published in the newspaper concerning the defendant’s incident. She read the article,
which reported that the defendant had been outside a female's house in Chattergoon
Road, Merebank when he had been shot. She was aware that the defendant had been
involved in an extramarital affair since April 2007, four months after they were married ,
and that he had been providing for this woman financially. Surprised as to what had
been reported in the newspaper article , she realised that the defendant had lied, as he
had told her the incident had occurred at Punjab Circle at a shop where he went to
purchase cigarettes.
[18] For the first couple of years of their marriage , she was on fertility treatment as
she was under pressure from the defendant to have a child. All costs for such fertility
treatment were paid for by herself , as this was not covered by her medical aid and she
worked overtime to pay for this . In June 2008, she discovered that she had conceived
after three years of being on fertility treatment. At the time , she had gone to the flea
market with the defendant and bumped into a male colleague who greeted her.
[19] The male colleague was with his family at the time. The defendant twisted her
hand and asked her ‘for how long have you been fucking him ’. She tried to avoid the
question, but the defendant continued to nudge and twist her arm and she eventually
ran to the ir motor vehicle. The defendant eventually joined her and drove away at a
high speed towards their home. As the defendant alighted from the vehicle , he came
around and shoved her with both his hands on her chest, causing her to fall backwards.
around and shoved her with both his hands on her chest, causing her to fall backwards.
At the time, the defendant was fully aware that she was pregnant and was in the early
stages of her pregnancy.
[20] The defendant ran up to his room. She was feeling stressed and tired and
realised that she had sustained lacerations to her back. She went inside the house and
used the toilet and realised that she had started bleeding. She informed the defendant
of this but he was not interested and was more concerned about questioning her about
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her supposed relationship with her colleague.
[21] She testified that throughout their marriage , the defendant did not want her to
greet any of her colleagues, especially male colleagues, and when she did, he accused
her of committing adultery and being in adulterous relationships.
[22] After their separation in 2012, they shared custody of their sons , with her having
the boys on her four days off. She testified that during this three-year period, she was
forced to leave the matrimonial home on no less than four or five occasions. The
defendant often expressed his dissatisfaction with her work arrangements and also
continuously questioned her about her relationship with her male work colleagues.
[23] In respect of the abuse by the defendant , the plaintiff testified t he first incident
occurred a week after their marriage when they were on honeymoon at the Lost City.
She was wearing a pair of jeans and a top. She was trying to take a photograph of the
defendant when he walked toward her, grabbed her on her arm and squeezed it tightly,
hurting her, and asked her ‘What fucking clothing are you wearing? ’ He told her that a
man was staring at her because of the manner in which she was dressed.
[24] He grabbed her away from the area but she ran away and ended up at the car
park. When the defendant arrived at the car park, he opened a bottle of water and
poured it over her head. He also cut the cord of the camera which was around her neck
and started taking pictures of her crying. He cut the mangal sutra sacred chain , which
had been placed around her neck when they had married. He broke it and rubbed the
sindoor all over her face. She tried to explain to him that what had happened had
nothing to do with her but the defendant continuously called her a ‘bitch’ and abused
her verbally.
[25] On the day of the incident when she had been dressed in the jeans and top, she
had asked him whether the clothing she was wearing was appropriate and he said he
had asked him whether the clothing she was wearing was appropriate and he said he
was fine with it. She questioned him as to why he had assaulted her , as her arm had by
that stage turned blue. All the defendant did was to refer to her as a ‘bitch’ and
indicated that she was wearing clothing which was attracting other men. She cried
herself to sleep the night of the incident. They left the accommodation the next day and
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returned home. She was too embarrassed to tell any family member , as she was in
shock as to what had happened and also upset about the fact that he had cut the
mangal sutra chain off her neck.
[26] She indicated that the mangal sutra chain works in conjunction with the sindoor
and a red dot . She further explained that , when t he red dot and the sindoor are
removed and the mangal sutra chain is cut, is on the day that your husband dies. She
confirmed that her marriage to the defendant was arranged. Her arm remained blue for
approximately two weeks and she was too embarrassed to seek medical assistance.
She was even afraid to inform her mother. The only people , apart from the defendant
and herself , who were aware of the incident , were the defendant’s parents who m he
had already telephoned to say that she had been cheating on him.
[27] When they returned to the matrimonial home , she asked to leave , as she was
concerned about being assaulted a week after the wedding and the defendant’s
conduct in having removed the mangal sutra chain. His parents were, however, not
sympathetic. Even on the day of the incident when he telephoned them , calling her a
‘bitch’, to say she was cheating on him, his parents wanted to take an emergency flight
to Sun City. On her return home, she tried to explain to his parents what had transpired
but they refused to listen to her explanation and she was instructed to go to her room.
She did so, as she was scared the defendant would assault her. She was not allowed to
leave the residence and remained there although she and the defendant did not speak
to each other for a couple of days. There w ere approximately 20 incidents during the
course of the marriage of such abuse until she left the matrimonial home.
[28] A second incident which the plaintiff highlighted occurred in January 2010. She
had been nominated to attend the Police Day in Bloemfontein. On her arrival at home
had been nominated to attend the Police Day in Bloemfontein. On her arrival at home
after returning from work, short ly prior to her needing to leave, the defendant gave her
her medical aid card and said that S[...] was ill. The defendant said he had a fever and
had been vomiting. When she checked S[...], there was nothing wrong with him and she
left for Bloemfontein. Prior to her leaving , the defendant was angry and asked ‘what
kind of mother leaves their sick child at home ’. The defendant was angry and whilst
travelling to Bloemfontein , constantly telephoned her , and questioned her about the
men on the bus, who she was sitting next to and how many of her male colleagues
were present. The defendant always accused her of being with other men.
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[29] She also testified that when she travelled to Bloemfontein for the Police Day ,
they arrived at approximately 03h00 in the morning. The defendant was very upset that
he was not able to contact her due to the poor signal. He refused to fetch her from the
bus stop at Maydon Wharf on her return . One of the captains whom she worked with
gave her a lift home. When she entered the house , she went to sleep. The following
morning at approximately 07h00, the defendant nudged her to wake her up and
questioned her about her ‘fucking trip to Bloemfontein’.
[30] The defendant continued to nudge her and went to the cupboard and removed
her firearm. She then ran downstairs into his mother’s bedroom , where the children
were asleep. She requested his parents to calm him down, as the defendant was acting
irrationally. His mother responded by saying that she deserved what was happening , as
she did not listen and went on the trip. The defendant grabbed her by her hair and
placed her between his legs . He was sitting on the bed and pointed the firearm at her
left temple. His mother and father watched this and did not intervene at any stage. The
defendant then stopped when she pleaded with him not to shoot her.
[31] The defendant , whilst pointing the firearm at her temple , said to her that she
must die for not listening to him. He punched her in the stomach and together with his
mother, threw her out of the house. He took some of her belongings and threw them out
the window. She pleaded with him not to do so , as she was still breastfeeding S[...] but
he did not want to listen. He forced her out of the house and locked the door to the main
house. She left and went home to Chatsworth where her mother lives.
[32] During the week, she tried to phone him, asking him to allow her to return for the
children’s sake but he refused. She then told him that she would get the court’s
assistance. That very afternoon, she was served with a protection order stating that she
assistance. That very afternoon, she was served with a protection order stating that she
must not remove the minor children from the house. On the day that she was required
to attend at court , she was late and the protection order was confirmed. When the
defendant realised that she was going to use alternate means to obtain access to the
children, he phoned her and begged her to return and indicated that he would discharge
the protection order , which he did. She only returned to the house because of the
children.
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[33] A third incident occurred in December 2011 , when the defendant had asked her
to take out a mortgage bond of R300 000 over her mother’s home for him to start a new
business venture. In 2008 , shortly after they were married, her mother wanted to
transfer the property into her name , as this was her inheritance. The defendant refused
to marry by antenuptial contract when her mother suggested it. As a consequence, the
house was transferred jointly into their names. She had promised her mother that she
would in no way encumber the property , as this was her inheritance and it was the only
asset which her parents could afford to buy. An argument then ensued , as he felt she
was not listening to him. After they had argued, she stood up to leave the room . She
was standing against the wall when the defendant approached her and punched her in
her eye with a clenched fist.
[34] The plaintiff produced photographs of the incident and the assault , which was
exhibit ‘C1’ to ‘C4’. Apart from punching her in her right eye, he repeatedly hit her over
her head with an open palm as well as clenched fists. The other side of her head was
blue as a consequence of being assaulted repeatedly with an open hand. The
photographs were taken in December 2011, immediately after the incident. In one of the
photographs, her injuries are depicted as a swollen right eye , as well as depicting her
hair having been shorn off. The defendant had taken a pair of scissors and cut her hair
off at the time. She had also sustained injuries to her left eye, which was blue.
[35] She confirmed that after the incident of assault in respect of which she produced
the photographs, she was hospitalised for ten days at St Josephs Hospital for
depression. Whilst in hospital, she was seen by a psychiatrist, Dr Miller, who gave her
the reports to state that he was aware of the abuse she was suffering at the hands of
the defendant. The defendant visited her whilst in hospital and pleaded with her not to
the defendant. The defendant visited her whilst in hospital and pleaded with her not to
open a case. The defendant was also interviewed by one of the psychologists and as a
consequence, she did not open a case, as he threatened her that he would take the
house away from her as it was in both their names and that he would kick her mother
out of the house.
[36] The following morning after the assault incident , when she stood in parade , her
commanding officer instructed her to go upstairs until he had finished with the parade ,
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as although she attempted to hide the injuries with her cap and foundation, she was
unable to do so. Her commanding officer requested her to open a criminal case , which
she did. Although she was scared, she did so despite the fact that she was still residing
with the defendant.
[37] She testified that there were approximately eight criminal cases opened against
the defendant. On case, Brighton Beach cas 159/11/2013 , related to two counts of
crimen injuria, one for common assault and one for pointing of a firearm. The defendant
was convicted in respect of that case. He was also charged with fraud for using her
medical aid without her permission after he had been removed as a beneficiary. Those
charges were withdrawn as a consequence of her failure to notify the defendant that he
had been removed from her medical aid.
[38] There were two other case dockets, one in July 2013 and another in December
2014, when he denied her access to the minor children. These were not proceeded
with, as the prosecutor indicated that they should try and agree on a parenting plan. In
October 2013, a further case of common assault was opened against the defendant in
respect of an incident which happened at her mother’s home at 3[...] S[...] Road. He
was convicted in respect of this incident.
[39] On that day, he had arrived at her residence with S[...] and the arrangement was
that he would drop S[...] off and leave. The defendant insisted on staying over , failing
which he would not leave S[...] with her. She agreed and he started to message her.
The three of them were sleeping on the bed with S[...] in the middle. He kept messaging
her on her phone saying ‘What kind of wife is she if she did not want to be intimate with
him’. An argument then ensued to which she informed him that she had no intention of
being intimate with him , as she was aware that he was visiting prostitutes and having
other relationships. The defendant then got off the bed and started doing a sexual
other relationships. The defendant then got off the bed and started doing a sexual
dance, asking her if that is how she enticed men.
[40] Although S[...] was sleeping in the middle of the bed, the defendant reached over
and grabbed her by her p yjama top and tried to pull her pants and underwear off. S[...]
had woken up by that stage and started crying. The defendant was screaming, shouting
and swearing. She then screamed for her mother, who was asleep in the main building,
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and asked her to call the police. The defendant responded that he would ensure that
she and her mother ended up on the street. The defendant grabbed S[...] and left. From
June 2012 until October 2013 , she continued to have contact with both children. The
defendant stopped her contact with the children in October 2013 when she instituted
the divorce proceedings.
[41] The first incident of crimen injuria occurred in February 2007, whilst they were in
Cape Town for the defendant to undergo his surgery. On the day of the surgery , he had
slapped her in the hospital , as the anaesthetist had placed his hand on her shoulder to
tell her that all would go well. After the surgery, they returned home and family
members were frequent ing the house, as he had come back from surgery. They were
having supper and the family members were sitting in the lounge and she asked him if
she could pour him some juice. He shouted at her and responded saying ‘don’t tell me
what to do’. He swore at her and then threw a plate of food at her.
[42] She walked away and went to the bedroom , but he followed her into the
bedroom where he started to shove and push her around. He kept on saying to her
‘bitch you are going to die ’. She then went into the lounge , where his parents were and
instead of his parents correcting his behaviour, they responded and said that she was
upsetting him.
[43] The second incident of crimen injuria was in April 2007. She had been working
overtime because of the defendant’s hospitalisation , given the need for her to
compensate for the 136 hours that she had taken whilst she was away from work for his
surgery. She was also on fertility medication , which was not paid for by her medical aid
and she had to pay cash. Although the defendant was running his business , he did not
contribute and would take her bank card away. When she had returned from her night
shift, she did not bathe and went straight to sleep.
shift, she did not bathe and went straight to sleep.
[44] Whilst asleep , she could feel movement between her legs and the defendant
was busy interfering with her and he pulled down her underwear to inspect if she was
wet. He showed her his fingers and said ‘bitch there’s evidence of you fucking around ’.
She woke up completely shocked and before she knew it, he was telling his parents
that he had evidence to say that she was sleeping around. She stayed in the room and
was too humiliated to face his parents. Most of the time, his parents took his side. They
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did not correct his behaviour and would often say that she was the one acting
irrationally. Several times during the various incidents, they would walk away, lock the
room door and pretend as if nothing had occurred.
[45] In December 2014, t he defendant was found guilty of all three counts of crimen
injuria by the Durban Magistrates’ Court and received a R3 000 fine, half suspended ,
with a six months suspended sentence.
[46] The plaintiff testified that i n relation to the house, although it was an inheritance,
a purchase and sale agreement was concluded between them and her mother.
Interim contact and interim primary residence
[47] The plaintiff , a policewoman , works shift s and on being forced to leave the
matrimonial home, the two minor children remained with the defendant and his parents.
Due to D[...]’s medical condition, he had special needs. After their separation , the
plaintiff had access and contact with the minor children for four days of the week, which
are her rest days. This contact continued until October 2013, when she instituted the
divorce proceedings and the defendant denied her access to the minor children ,
specifically D[...].
[48] Given that she did not have contact with the children, o n 31 January 2014, the
plaintiff instituted rule 43 proceedings in which she sought an order that , pendente lite,
she and the defendant be co-holders of parental rights and responsibilities and that the
primary residence of the minor children be with her, with the defendant being entitled to
reasonable contact with the minor children.
[49] In the founding affidavit, the p laintiff made reference to the physical abuse she
endured during their marriage and the circumstances under which she was forced to
leave the former matrimonial home. She indicated that she had access to S[...] from
June 2011 to 24 October 2013 , as she would exercise contact on her four rest days.
Insofar as D[...] was concerned, she would visit him at the former matrimonial home
Insofar as D[...] was concerned, she would visit him at the former matrimonial home
given his medical condition or at hospital when he was hospitalised at various times due
to complications arising from his condition.
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[50] On 25 October 2013 , after the d efendant learnt of the divorce action which had
been instituted,3 he came to her home and took S[...] and she had had no contact with
the children since such date. Although she worked , she was the primary caregiver of
the children while she resided at the former matrimonial home. She allud ed to an
incident in which the defendant assaulted S[...] by slapping him in his face, pinching his
ears and assaulting him on his forehead , so much so that S[...] sustained an injury to
the back of his head.
[51] Between 10 and 17 December 2013, D[...] was admitted to Chatsmed Hospital
for double bronchial pneumonia. The p laintiff indicated that this was as a consequence
of improper care and management by the defendant . Upon D[...]’s discharge from
hospital, the prescription for his medication was not filled by the d efendant, despite the
fact that both children an d the defendant were on the plaintiff’s medical aid. She
purchased the medication in Januar y 2014 as a consequence of the defendant’s failure
to do so.
[52] On 7 January 2014 , the d efendant and S[...] stayed at her home and an
altercation took place. This was as S[...] pleaded with her not to send him back with t he
defendant and he wanted to remain wit h her. On 20 January 2014, the d efendant took
S[...] to school and did not return to her home but returned to the ir former matrimonial
home. Between 9 and 12 January and 17 and 20 January 2014 , D[...] stayed with her
unsupervised, whilst the defendant went to work.
[53] The d efendant oppose d the relief sought and in his answering a ffidavit,
submitted that:
(a) the children have never been apart from him since birth;
(b) the plaintiff once in 2011 shook S[...] violently;
(c) the plaintiff has a history of violent conduct;
(d) the plaintiff has throughout their marriage been physically, emotionally and
verbally abusive toward him, to the extent that he ha d obtained an order in terms of the
verbally abusive toward him, to the extent that he ha d obtained an order in terms of the
Domestic Violence Act 116 of 1998 (Domestic Violence Act);
(e) the plaintiff is emotionally unstable and is on medication for depression, anxiety
3 The sheriff attempted to serve summons in the action on the defendant at his residence , being the
former matrimonial home.
15
attacks and a sleeping disorder;
(f) the plaintiff has attempted suicide;
(g) the plaintiff is often away from home for long periods of time;
(h) the home in which the plaintiff resides is not conducive to the best interest s of
the minor children; and
(i) given D[...]’s medical condition, the Bluff Medical Centre is closer to his home
than that of the plaintiff.
[54] The rule 43 application was argued before K Pillay J, and, on 2 April 2014 , she
issued the following order pendente lite:
‘A.
i. In terms of Section 18, 19, 20 and 30 of the Children’s Act No.38 of 2005 [ the Act] the
parties shall be co -holders and shall exercise co -parental responsibilities and rights in
respect of the minor children born of the marriage, namely :-
a) D[...] O[...] J[...], a boy born on 25 June 2009; and
b) S[...] O[...] J[...], a boy born on 25 June 2009;
ii. The children shall reside with the Applicant on all her days off and with the Respondent
on the remaining days and the Applicant is to inform the Respondent of her off days one
month in advance;
iii. Notwithstanding the above arrangement, the children are to be with the Applicant on
Mother’s day and with the Respondent on Father’s day;
iv. The one parent is to have daily telephonic contact with the children on the days that the
children are with the other parent.
B. That the costs of this application be reserved for decision by the court hearing the divorce
action under case number: 11572/2013.’
[55] Subsequently, in October 2015 , the plaintiff instituted an application in terms of
rule 43(6) for a variation of the order of 2 April 2014. The basis for such application was
precipitated by the supplementary report of the Family Advocate and the Family
Counsellor. The recommendations were that the children res ide primarily with her and
that the d efendant exercises reasonable contact with the children , which contact is
defined in the recommendations.
defined in the recommendations.
[56] More importantly, the medical practitioners treating D[...] reached an agreement
regarding D[...]’s prescribed medication and treatment. The reason for this was the
16
defendant’s refusal to administer Risperdal and Rivotril to D[...] whilst in his care , his
refusal that D[...] receives Pediasure, which is a nutritional supplement , and his refusal
to administer oxygen when D[...] needed it.
[57] The defendant also opposed this application and indicated that he had obtained
medical advice which indicated that the administration of such medication was
detrimental to D[...]’s health , hence the reason why he ha d not administered it. In
addition, he had done independent research using the internet via Google and annexe d
medical inserts indicating the negative effects of the administration of such medication.
He, in addition , had stopped D[...] from using the oxygen machine against medical
advice, as according to him , D[...] breaths normally and does not need the oxygen
machine. He would only utilise it when D[...] was experiencing difficulty breathing.
[58] The matter served before Olsen J on 26 October 2015 , at which stage the
following order was granted by consent:
‘1. The order granted on 2 April 2014 is supplemented by the addition of the following
orders:-
a) The parties are directed to forthwith arrange that D octor Nelandra Chetty and D octor
Camilla T John jointly:-
i. Consider the current medication prescribed for the minor child D[...], in particular
the prescription of Risperdal and Rivotril and the suitability thereof to the minor
child’s condition;
ii. Confirm or allow the prescribed medication in the best interest of the minor child;
iii. Advise the parties of the prescribed medication to be administered to the minor
child.
b) The parties are directed to administer the prescribed medication, jointly determined in
terms of paragraph 1 (a) above, to the minor child and are directed to ensure
compliance with the timeframes and quantities determined in such prescription.
c) The parties agree that insofar as it is practically feasible the prescribed medication is to
be administered by a qualified nurse appointed by the applicant.
2. The order granted on 2 April 2014 is varied by the substitution of paragraph A (ii) thereof
with the following:-
The children shall reside with the Applicant and the Respondent respectively on the
dates in Annexure “A” hereto.
3. The costs of the application are reserved for determination by the trial court hearing the
17
matter on 2 to 4 December 2015.
4. The parties are required to exchange Rule 37 (4) agendas on or before 9 November
2015.
5. The parties are required to exchange Rule 37 (4) replies on or before 16 November
2015.
6. The parties are directed to discover on or before 4 November 2015.
7. The parties are directed to convene a Rule 37 conference on or before 19 November
2015.
8. In the light of the fact that the trial dates 2 to 4 December 2015 have been arranged with
the Senior Judge hearing civil proceedings at the time, certification of readiness for trial is
dispensed with, and that the trial shall commence on 2 December 2015.’
[59] The plaintiff testified regarding the various interim protection orders that she
obtained on behalf of S[...] against the defendant. The first was on 4 November 2016,
when the defendant was ordered not to commit acts of domestic violence, ie verbal,
physical and emotional abuse, not to enter S[...]’s school and was temporarily refused
contact with S[...], pending an investigation by the Family Advocate. Given the report of
the psychologist, Dr Chris Venkatsamy, dated 25 February 2017, there was a necessity
for the Family Advocate to report once more despite the two enquiries.
[60] The reason for the plaintiff applying for a protection order on behalf of S[...]
related to two incidents, one which occurred on 27 September 2016 and one thereafter
on 30 September 2016. On 27 September 2016, it was alleged that the defendant
slapped S[...] and attempted to smother him with a pillow on 30 September 2016. As a
result of these alleged assaults, S[...] was treated by Dr Chetty at Chatsmed Hospital.
[61] A criminal case docket was opened at the Brighton Beach Police Station under
cas number 18/10/2016, for assault with the intent to do grievous bodily harm and
attempted murder. The plaintiff indicates that subsequent to such criminal complaints
being made, she received threatening phone calls from the defendant in which he
being made, she received threatening phone calls from the defendant in which he
threatened to remove S[...] and indicated that on the next occasion, he would kill S[...]
so as to teach the plaintiff a lesson. S[...] was suffering from restlessness and sleep
deprivation as well as emotional stress. He also indicated that he did not wish to have
any contact with the defendant and was receiving psychological counselling.
18
[62] The defendant opposed the interim protection order, denied slapping S[...] or
trying to smother him with a pillow and indicated that S[...]’s bleeding gums were due to
his age and loss of milk teeth. He admitted telephoning the plaintiff but denied the
threatening nature of the phone calls.
[63] The effect of paragraph 2 of Olsen J’s order was for each of the children to
reside with their parents on specified days – a form of shared residence.
Appointment of a curator ad litem
[64] During the course of the trial , given the nature of the evidence which the p laintiff
testified about, it became necessary to have legal representation appointed for the
minor children to ensure their best interests . As a consequence , on Thursday, 1
September 2016, Ms S Clarence was appointed as legal representative of the minor
children. The matter was then adjourned for purposes of her perusing the pleadings and
specifically for her to consult with the medical practitioners relating to D[...]’s condition.
On Thursday afternoon , Ms Clarence approached me in chambers and requested that
the trial, rather than being adjourned sine die, proceed on Thursday afternoon , as she
wanted to lead the evidence of Dr Chetty , specifically in relation to the treatment of
D[...]. Such request was gr anted and the evidence of Dr Chetty was interposed during
the court of the plaintiff testifying.
[65] Given the urgency of the matter, in particular D[...]’s ill health and the defendant’s
constant refusal to administer oxygen and certain of the medication, the curator ad litem
sought to present oral evidence for a variation in respect of the contact and care
arrangements, specifically for D[...]. Dr Chetty provided oral evidence, which resulted in
a variation of the order. This resulted in the order of awarding the primary care of D[...]
to the plaintiff, with the defendant granted supervised contact, as he remained adamant
to the plaintiff, with the defendant granted supervised contact, as he remained adamant
that he would not give D[...] the medication or administer the oxygen whilst D[...] was in
his care.
Evidence of Dr Chetty
[66] Doctor Nelandra Chetty, a paediatrician and a llergologist, testified that he is a
specialist in children’s diseases and also in immunology. He is in private practice and
has his medical rooms at the Chatsmed Garden Hospital. He has been treating D[...] for
19
approximately three years, since 2013. He has also , in addition, been treating S[...]. He
testified regarding D[...]’s medical condition and mentioned that because of his
condition, his life expectancy has been affected. D[...] not only suffers from smooth
brain syndrome, but cannot function normally on all levels relating to speech, movement
and brain function. He experiences involuntary movements and cannot control his
hands or feet. In addition , he has painful muscular spasms which arise from different
areas of his brain and he has also been diagnosed with epilepsy and often has minor
convulsions.
[67] As a consequence , he has been prescribed medication for the treatment of the
convulsions, namely Epilim, Kepra, Risperdal and Rivotril. Rivotril controls his
convulsions, is also a muscle relaxant and assists in the control of muscular spasms.
Because of his severe neurological problems , D[...] suffers from severe
gastroesophageal reflux. This means that his body is unable to process any food and
this then enters his oesophagus , travels to his lungs , and causes an infect ion which
results in difficulty in breathing.
[68] Because of his brain condition, D[...] is unable to articulate any pain or discomfort
and screams and has outbursts of muscular spasms , which also cause arching of his
back. The arching of his back has resulted in spinal damage and he has scoliosis of his
spine to the extent that it is S-shaped. The severe arching then places pressure on his
lungs and compresses them, which also impacts his breathing ability.
[69] The neuroleptic s and psycholeptics have a calming effect on his brain , as a
consequence of which he does not experience painful muscle spasms if he is taking
them. Rivotril assists with the painful spasms , makes them more bearable and is also
an anticonvulsive, which assists with the number of convulsions he has. Given the fact
that he takes one drop twice a day , which is 0.1mg , this is an extremely mild dose ,
that he takes one drop twice a day , which is 0.1mg , this is an extremely mild dose ,
which does not cause any side effects and it improves his quality of life.
[70] Doctor Chetty testified that it is critical and of vital importance for D[...] to remain
on the drugs. Because of his brain abnormality, D[...] cannot on his own say ‘I’m irritable
or I’m experiencing pain ’. Because of the pain , he experiences discomfort and most of
the time , the outburst s are an indication of the pain he is experiencing. As a
20
consequence of the severe chest infection he had in May 2015, he often gets severe
respiratory infections. When there is acid aspiration , there is an infection of his lung,
and, because of the scoliosis, the lung development is also abnormal.
[71] As he gets older , he experiences difficulty in breathing and they have noticed
that his oxyg en levels have been reduced. It is exceptionally low in his blood , which
then impacts on the blood p H level, which will th en impact on his heart function and
eventually he will stop breathing. He is aware of the defendant’s assertions that
Risperdal, Rivotril and the oxygen are not good for D[...] and he does not administer
these. He indicates that he confirmed that the defendant has unilaterally had D[...]
removed from such medication whilst in his care. He indicate d that his first priority is
D[...] and to treat him.
[72] These two drugs are used in children with no respiratory problems. It is a minor
dose and does not aggravate or intensify the respiratory issues which a child may suffer
from. He has confirmed that he was not the first doctor to prescribe the use of Risperdal
and Rivotril but that these had been prescribed by a paediatric n eurologist who had
treated D[...] initially. He knows of no medical finding s which indicate that this would
aggravate D[...]’s medical condition.
[73] He also commented on t he condition of D[...] after he had been with the plaintiff
and defendant, respectively. He is aware that the plaintiff administers all the medication
and oxygen to D[...] and indicates that he is well taken care of when he is with his
mother. When he consulted with D[...] after he had been with his father, D[...] presented
as being agitated, hypoxic and ill. He is of the view that this can be attributed to D[...]’s
medical condition but also due to the fact that the oxygen was not being administered
and that is why he presents as being severely hypoxic with blood pH levels depleted
and that is why he presents as being severely hypoxic with blood pH levels depleted
and he gets agitated and irritable. This is also due to the fact that he experiences
severe muscle spasms because Risperdal and Rivotril were not being administered by
the defendant.
[74] He indicates that given the scoliosis and the muscle issues which D[...]
experiences, he has motivated for D[...] to have a special adjustable spinal bed. This is
to ensure that he does not develop pressure sores and that he is turned frequently and
21
a nursing assistant has been appointed to assist on a 24-hour basis. He indicated that a
normal bed would not assist , as D[...] needs to be turned frequently and he has lost a
lot of muscle mass. A normal bed would apply pressure to his bones and this would
result in his skin being torn and pressure sores developing, which would then eventually
become infected.
[75] He is also aware of the special nutrition which D[...] requires because of his
medical condition and has participated in writing motivations to the medical aid to
motivate for a special bed and special nutrition. As an interim arrangement , he was of
the view that D[...] requires a stable environment with specialised care 24 hours a day.
Oxygen is required to be administered to D[...] when needed and his oxygen levels
must be monitored by an oxygen monitor. All medications must be administered for
D[...] to function so that his lungs are not compromised.
[76] He has indicated that in view of D[...]’s medical condition and the fact that his life
expectancy has been compromised , this would be in the best interests of D[...] on an
interim basis.
Cross-examination of Dr Chetty
[77] During cross-examination, he confirmed that the plaintiff first consulted with him
about D[...] in 2013. He was questioned extensively regarding the appropriateness of
the use of Risperdal and Rivotril, the defendant contending that the use of these drugs
was not appropriate given the side effects.
[78] He confirmed that he was fully aware of the defendant’s concerns but there were
no side effects , as minimal doses were being administered. In addition, he has been
monitoring and treating D[...], who has not had any side effects from the use of these
drugs.
[79] Dr Chetty also disputed the suggestion that D[...] was hospitalised in April/May
2015 due to the side effects of the use of the two medications but was rather admitted
due to bronchial pneumonia. He indicated that given D[...]’s condition, including
due to bronchial pneumonia. He indicated that given D[...]’s condition, including
Sandifer syndrome, because of the cerebral palsy , his lower oesophageal sphincter did
not work properly , leading to reflux into his chest , which caused the respiratory
22
infections. In his professional opinion , given D[...]’s diagnosis, he was a very sick child
and required admissions to hospital given his condition.
[80] He confirmed that both parents were made aware of the treatment and
medication required by D[...]. The defendant always objected to the use of certain
medications prescribed for D[...] and he was aware that the defendant did not
administer them or oxygen on the occasions D[...] lived with him.
The rule 43(6) order
[81] After Dr Chetty testified, Ms Clarence made application for the variation of the
various rule 43 orders. After hearing submissions on behalf of Ms Somers and Mr
Naidu, I issued the following orders pendente lite:
‘1. The primary place of residence of D[...] O[...] J[...] shall be the home of the Plaintiff;
2. The respondent shall be entitled to exercise contact with D[...], every alternative
weekend for two hours on a Saturday and two hours on a Sunday, such contact is to take place
from 10h00 – 12h00 at the home of the Plaintiff and in the presence of the nurse caring for D[...]
at the time of such contact;
3. The contact and care provision in respect of S[...] O[...] J[...] shall remain as they appear
and unaltered as per the order of 2 April 2014;
4. The costs are reserved for determination by the trial court;
5. The trial matter is adjourned sine die;
6. Counsel is granted leave to approach the Judge President to enquire when the trial can
be accommodated.’
[82] The contact provisions in relation to S[...] remained in place as per the order of 2
April 2014. Subsequent to the order of 6 September 2016, the defendant attempted to
exercise contact on 18 September 2016 and demanded that the plaintiff leave her home
when he exercised such contact. She refused. Thereafter, the defendant exercised
contact on 19 September 2016 for a period of ten minutes. Subsequently, he has not
exercised contact in terms of the provisions provided to him in the aforesaid court order.
exercised contact in terms of the provisions provided to him in the aforesaid court order.
[83] At the time , I also gave reasons for issuing such orders , which are a matter of
23
record.
The resumption of the trial
[84] By the time the trial resumed, the interim order that the primary residence of
D[...] be with the plaintiff remained in place. Despite the rule 43(6) order, the defendant
has not seen S[...] in ten years nor has he contributed in any way towards his
maintenance.
[85] The plaintiff testified further that when D[...] died, the defendant did not contribute
in any way to the funeral expenses. She further testified regarding the defendant’s
behaviour on the day D[...] passed away and his insistence on a post -mortem being
conducted. She refused to consent , given D[...]’s long history of illness , and instructed
the medical staff that the defendant would have to obtain a court order. This issue of the
post-mortem took approximately two to three hours to resolve.
[86] The following morning after D[...]’s passing, the defendant requested to attend at
the mortuary, which she agreed to. He insisted on washing D[...]’s body but was unable
to correctly handle him. When he lifted D[...] up, he threw up and she had to request
him to put him down gently. He almost broke D[...]’s hand when he was trying to put his
suit on and she had to stop him.
[87] The defendant insisted on removing a piece of D[...]’s hair as part of his custom
and wanted to perform rituals. She refused , as since 2012 , she and the children ha d
reverted to Christianity. D[...] had a Christian funeral and the defendant and his family
arrived at 13h00. At 15h00, they arrived at the crematorium and performed the last rites
before the cremation. The pastor then allowed the defendant to perform the last rites in
terms of Hindu rituals.
[88] The family waited for D[...]’s ashes and that is when the problems started. The
defendant ran off with D[...]’s ashes. He refused to participate in them jointly dispersing
his ashes. Between 16h00 and 20h00 they could not contact the defendant and it was
impossible for them to obtain D[...]’s ashes, despite the staff at the crematorium
impossible for them to obtain D[...]’s ashes, despite the staff at the crematorium
attempting to intervene.
24
[89] The defendant was insistent on depriving her of dispersing her son’s ashes until
Raakesh, her brother , stepped in and obtained the ashes. The plaintiff was not
challenged on this evidence.
Cross-examination of the plaintiff
[90] The plaintiff was not challenged on most of her evidence. The only challenge
related to the reasons for the breakdown of the marriage, namely that she attempted
suicide on a number of occasions and that she was emotionally unstable.
[91] She vehemently denied having attempted to commit suicide and being
emotionally unstable. She , in effect, indicated that she was often depressed given her
abusive marriage. The defendant did not suggest that the plaintiff had engaged in extra-
marital relationships.
[92] That then was the case for the plaintiff.
Defendant’s case
[93] Despite indicating during an application for an adjournment of the trial in 2016
that he wanted to amend his plea and counterclaim to include an order for the division
of the joint estate , and specifically the relief claimed insofar as the immovable property
was concerned, at the commencement of the trial , the defendant’s representative did
not seek any amendment to the pleadings.
[94] The defendant testified that in 2006 , when he and the plaintiff married, he
financed the entire wedding, as her income was low and she had just joined the SAPS.
They had a grand wedding with h im having 160 invited guests and the plaintiff only
having four members of her family and her work colleagues. After their wedding, he had
to attend Constantia Hospital in Cape Town for brain surgery. Prior to the plaintiff and
his parents leaving , he took out a R3 million life policy , with his mother as the
beneficiary. A specialist neurologist monitored him for three months and found the
cause of his seizure attacks to be a blood clot in the brain. The operation was
successful.
[95] For a period of three years after the operation, he noticed a vast difference in the
25
plaintiff. She had ‘psychological needs’, was creating arguments for no apparent reason
and had gone to the extent of trying to commit suicide. In mid -2006, in June or July, the
exact date he could not recall, was the first incident of her attempting suicide. On one
occasion, at a premises at 6[...] E[...] Road, Bluff, the plaintiff tried to drown herself with
a rope tied to a block, with the other end of the rope tied to her ankle. She did not know
how to swim and threw the block into a pool and his brother , A[...] J[...] (A[...]),
witnessed it. She refused to seek professional help.
[96] He was at work at the time and approached the plaintiff to ask her to seek
professional help. Because she was working for the SAPS, she was concerned that she
could lose her job. He testified that, in his opinion , a person in the right frame of mind
would not attempt to kill themself and they could both seek professional help. He
offered to accompany her to a doctor , which she refused. The plaintiff , instead,
approached a pharmacist and bought over -the-counter medication and he was present
at the time, although he could not recall the names of the medication.
[97] He confirmed that they had difficulty conceiving and that the plaintiff had gone on
fertility treatment. He loved kids and had doted on his brother’s kids and gave them love
and attention. In 2009, they conceived and she gave birth to their twin boys.
[98] His children were approximately three months old when , one afternoon , the
plaintiff approached him and told him that she did not want to live ‘like this’ in 2009. This
surprised him and he told her to give it to him in writing. Three weeks later , the plaintiff
had to go to Soweto for a police gathering. She left with her work colleagues and when
she returned, she was given two days off and on the third day , he took her to work. He
dropped her at work and returned home. He called her to ask her what to take out of the
dropped her at work and returned home. He called her to ask her what to take out of the
freezer for supper. Her phone rang in the bedroom under her pillow. She had forgotten
to take her phone. It was a Blackberry and there was a m essage from a Commander
Meth. He called the station in Maydon Wharf and Commander Meth came on to the
phone and he questioned him as to how long he had been having an affair with his wife.
Commander Meth denied that he and the plaintiff were having an affair.
[99] He confirmed that there were issues in relation to access to his children and that
the plaintiff had restricted him from seeing the children. After the various interim orders ,
26
he was allowed to see his children for two hours on a Saturday and a Sunday. The
plaintiff resided in a house at S[...] Road with the children. He was allowed to see D[...]
in the presence of a nurse. After a period of half an hour of him exercising contact, the
plaintiff created a scene. On three occasions, he was served with a protection order. He
did not , therefore, return to see the children in 2017. In March 2018 , the order was
confirmed. He has over the years attempted to obtain legal assistance to see his
children and for the divorce proceedings to be finalised.
[100] He testified that throughout the marriage , he had contributed to the joint estate ,
especially the joint maintenance of the children. He did repairs and maintenance to her
mother’s home, and in 2011, after their separation, his mother-in-law decided to transfer
the property into both their names. He took full responsibility for his mother -in-law and
was purchasing groceries. However, it emerged that the defendant was using his
mother-in-law’s own pension money to buy her groceries.
[101] He had a successful business, however , he ultimately lost his business. His
father provided him with food and a roof over his head. He had attempted to find work
but was unable to do so. Most of his income was cash. He was unable to produce any
proof of income. He did not have any deposit slips and his invoices were with his
accountant. In 2020, his earnings averaged R20 000 per month and in 2021 and 2022,
his earnings averaged R1 000 per month. He did not submit any tax returns and he has
not signed anything in relation to his SARS obligations since Covid -19. It also became
evident when he testified that he did not know his tax number or bank account numbers
and was quite economical with the truth in relation to his income , expenses and work
history.
[102] During cross-examination, it was pertinently disputed that the plaintiff attempted
[102] During cross-examination, it was pertinently disputed that the plaintiff attempted
suicide during or after the marriage. Although he was adamant that she did, he
conceded that he could not provide any dates for the alleged attempted suicides. It was
also pertinently disputed that the defendant ever contacted her commander in relation
to an alleged affair. He indicated that although he was entitled to visit his children, this
was supervised by a nurse. He did not dispute when it was put to him that he was not
denied access to and contact with his children but that he had suspended the visits
unilaterally. This was specifically as these were supervised visits. In addition, he did not
27
dispute that the plaintiff avoided contact with him when he exercised supervised visits to
the children.
[103] He confirmed during cross-examination that for a period of approximately eight to
nine years, he had done nothing about enforcing the order for contact. He responded
that he felt that he was wasting his time. He disputed that he did not do any
maintenance and that the plaintiff and her brother did all the maintenance on her
mother’s property at S[...] Road but indicated that he did not keep a record. He disputed
that he made no contribution to the property. He indicated that he had informed his
previous attorneys of his contributions to the joint estate but they had done nothing.
What emerged from the defendant ’s evidence was that he was in agreement with the
plaintiff that the marriage was at an end and wanted to be divorced.
[104] The defendant’s brother , A[...], testified for the defendant and he confirmed that
he observed the plaintiff attempting suicide in 2007 , although he could not recall the
date. He confirmed that no attempts were made to obtain an affidavit from him
confirming this. He then changed his version and indicated that he did make an affidavit
in 2007 but he had forgot ten. The defendant reminded him two days prior to him
testifying that he had deposed to an affidavit, but no such affidavit was produced.
[105] He confirmed that the defendant had informed him that he needed to come to
court and testify. Although he brought the defendant to court , he had remained seated
in the vehicle. They did not discuss the evidence that had been presented. He
confirmed that he observed the defendant’s wife tie a rope to her leg in an attempt to
commit suicide. He also recalled a second incident where she attempted to jump over
the balcony but he grabbed her. In addition, on the second occasion , his father also
stopped her from committing suicide.
[106] During cross -examination, he could not explain the difference in the period in
[106] During cross -examination, he could not explain the difference in the period in
which the incident is alleged to have occurred , as he said it was in 2007 and the
defendant said that it was in 2006. He indicated that he was the one who saved her
from drowning in the pool. He indicated that the plaintiff was lying if she denied the
allegations.
28
[107] That then was the evidence.
Closing submissions
[108] The respective parties , including the curator ad litem, made submissions at the
end of the hearing. This was necessary given the passage of time and as events had
overtaken the relief initially sought.
[109] The plaintiff , given the change in circumstances , sought forfeiture and
questioned whether the defendant, given his failure to maintain contact with S[...] for the
past nine years , ought to have contact with him. In the written submissions , she
highlights the abuse she and S[...] experienced at the hands of the defendant , which
resulted in numerous criminal cases and protection orders being obtained against the
defendant.
[110] She indicates that he has not contributed in any way to the financial well-being of
the minor children and that the defendant has had no contact with S[...]. The defendant
has not contributed to the immovable property situated at S[...], Chatsworth and the
property was registered in both their names purely as a matter of convenience , as the
defendant refused to marry with an antenuptial contract.
[111] Although the parties married in 2006 and separated in 2012, they lived
separately at various stages throughout. The marriage was of a short duration. Given
the defendant’s conduct throughout their marriage and his failure to contribute in any
way to the estate, an order of forfeiture is justified.
[112] The defendant filed written submissions in which he attempted to introduce
evidence by way of affidavits and documents not presented at the hearing. I did not
have regard to these , as they were not presented during the trial and the plaintiff had
not had an opportunity to deal with their contents.
[113] In addition, he prepared a document entitled ‘Terms of Consent to divorce by
defendant’. In terms thereof , he agreed to a divorce, that the primary residence and
care of S[...] be awarded to the plaintiff , with him having reasonable contact , that he be
29
ordered to pay maintenance of R1 per annum until he gains meaningful employment
and that the court refrain from making an order of forfeiture.
The children and the reports of the curator ad litem
[114] It is also necessary to deal with the investigations of the curator at litem and the
contents of her report in detail.
[115] In her initial report, the curator ad litem dealt with the various rule 43 applications
in relation to the minor children. Prior to the institution of the rule 43 application in
January 2014, the plaintiff was entitled to exercise contact with the minor children on
her days off, save that S[...] was permitted by the defendant to see the plaintiff for two
extra nights at a time. The plaintiff reported she had not had any contact with D[...] for a
period of three months and the defendant permitted her to have contact with him for two
days per month.
[116] The curator had specific regard to the plaintiff’s affidavit and the defendant’s
refusal to allow her contact to D[...]. The plaintiff deal t with the defendant’s pattern of
physical abuse in respect of S[...], as he is alleged to have slapped S[...]’s face and
pinched his ears. S[...] was allegedly physically attacked by the defendant with his
hands, resulting in a swelling to the back of his head , which required medical attention.
In relation to D[...], the plaintiff recorded that the defendant’s failure to properly
administer D[...]’s prescribed medication, to purchase prescribed medication and his
improper care and maintenance of D[...], resulted in a week of hospitali sation in
December 2013.
[117] The defendant’s affidavit made allegations of the plaintiff being violent towards
S[...] by, inter alia, ‘shaking him violently’. As a consequence of the plaintiff’s history of
violence, he had obtained a final order in terms of the Domestic Violence Act against
her, in terms of which he alleges she is not to remove the children from his care.
her, in terms of which he alleges she is not to remove the children from his care.
[118] As regards his financial contributions for the minor children, he submitted that
although the children are on the plaintiff’s medical aid, financially , he does everything
for both children and both financial commitments are borne by him.
30
[119] At the time of the interview with both the plaintiff and defendant, the curator
required updated financial information from both parties to assess the quantum of any
maintenance payable by the one party to the other. The curator expressed some
suspicion regarding the defendant’s allegation of his net income being such a minimal
amount and required the defendant to provide his bank statements and/or any
documents relating to his income, given that he is self-employed.
Family Advocate’s reports
[120] The curator also had regard to the various reports of the Family Advocate and
their recommendations and interviews and interactions with the parties and S[...].
[121] The Family Advocate compiled a report dated 1 April 2014 , in which it
recommended that both parties retain full parental responsibilities and rights in respect
of the children and a shared residence. The plaintiff, at the time of the completion of the
Family Advocate’s report in April 2014, indicated that she earned R7 000 per month and
the defendant indicated that he earned approximately R35 000 per month.
[122] At the time the Family Advocate completed their report, a psychologist had
provided a report indicating that S[...] was missing his mother. It was also reported that
the defendant unilaterally removed S[...] from L[...] D[...] E[...] Centre, without consulting
with the plaintiff and placed him at the P[...] R[...] P[...] School. The Family Advocate
also noted that the defendant was not familiar with D[...]’s chronic medication,
notwithstanding the fact that he lived with him. This was in direct contrast to the plaintiff,
who was not only aware of his medication but also the dosages required to be
administered.
[123] The Family Advocate in their recommendations was of the view that the plaintiff
would be in the best position to monitor S[...]’s school work during her off days, that the
defendant did not present as being fully involved in the minor children’s care , allowing
defendant did not present as being fully involved in the minor children’s care , allowing
his parents to take the major responsibility therefor, that he was using the children as a
tool against the plaintiff in his matrimonial battle with her and that S[...] appeared to be
alienated from the plaintiff by the defendant. Interestingly enough , the Family
Advocate’s office reported that the plaintiff had not hurt or harmed the minor children in
any way and therefore there was no reason to remove her from their lives. This then
resulted in the order of K Pillay J on 2 April 2014 , which accorded with the
31
recommendation of the Family Advocate.
[124] On 15 July 2015, a supplementary report was produced by the Family Advocate
and Family Counsellor. The change in recommendation was that the minor children
reside primarily with the plaintiff and set out contact for the defendant with the minor
children. In addition, the Family Advocate recommended that the parties ’ medical
representatives come to an agreement with regard to D[...]’s prescribed medication and
treatment. The supplementary report is comprehensive and refers in detail to a number
of collateral sources as well as expert evidence. What is noteworthy are the
diametrically opposed versions of the plaintiff and defendant insofar as their respective
care of the minor children was concerned.
[125] At the time the Family Advocate made the observations, they had interviewed
S[...], who was 5 years and 11 months old. S[...] reported that he was upset with the
defendant, who had hit him the day before as a consequence of the defendant saying
he was naughty and had not wanted to wash his face. S[...] indicated that the plaintiff
assisted in his personal hygiene, helping him wash his face and brush his teeth.
[126] S[...] also intimated to the Family Advocate that he wanted to stay with his
mother for the following reasons:
(a) his mother loves him the most and secondly his brother;
(b) his mother does most things for him and second his paternal grandfather;
(c) his mother buys him things and reads him stories when he is sick;
(d) she sleeps in the middle of the bed with the two of them and he likes it;
(e) his mother prepares a variety of different food s for his lunch at school , whereas
when he is with his father, he mainly takes polony sandwiches; and
(f) his father and paternal grandfather sometimes hit him and that should he be in
any sort of trouble, his mother would help him.
[127] He also indicated that he shared a close relationship with his twin brother , D[...].
[127] He also indicated that he shared a close relationship with his twin brother , D[...].
In conducting the My World exercise , S[...] identified his mother, brother, cousin and
paternal grandfather as the significant people in his life.
[128] During his interview with the Family Advocate , the defendant admitted that he
32
could not remember the name s of all of D[...]’s medication and that he was unaware
that D[...] had been prescribed Risperdal and Rivotril and had only recently become
aware of it. He also reported to the Family Advocate that he was not administering th e
two medications to D[...] and that he had conducted his own research relating to the
side effects of Risperdal and Rivotril. He reported that he had approached Dr Nelandra
Chetty, a specialist paediatrician and allergologist, who has treated D[...] since 2013, to
demand that he desist from prescribing these two medications for D[...]. However, Dr
Chetty refused and indicated that it was necessary to treat D[...]’s condition.
[129] As a consequence , the defendant approached an advocate, Mr Shane
Govender, who addressed correspondence to Dr Chetty, alleging that the defendant
had taken professional medical advice from a medical expert and insist ing that Dr
Chetty desist in prescribing the medication. The expert whom the defendant had
consulted with was identified as Dr Camila T John, a specialist paediatrician. On the
alleged advice of Dr John, the defendant indicated that he had stopped D[...] from being
placed on the oxygen machine , which Dr Chetty indicated was necessary as a result of
D[...]’s inability to breathe adequately on his own accord.
[130] The plaintiff , when questioned regarding D[...]’s medication , indicated that Dr
Egnar, a paediatrician, had treated D[...] and prescribed Risperdal for him when he was
six months old and a general practitioner had referred D[...] to a neuro -specialist,
namely Dr R Govender , who had prescribed Rivotril for D[...] in 2010. In 2013 , when
she consulted with Dr Chetty, he approved the aforesaid medication that had been
prescribed.
[131] What also became evident was that the plaintiff’s medical aid, Polmed , had
provided significant assistance , given the motivations of medical practitioners from
provided significant assistance , given the motivations of medical practitioners from
Polmed. They provided full time professional nurses to assist the plaintiff in her care of
D[...], as well as a speciali sed bed for him and special diapers, speciali sed food and a
nebuliser.
[132] The Family Advocate , in its recommendations , recorded that much of the
defendant’s behaviour was motivated by the acrimony between him and the plaintiff and
he does not divert his energy and effort into his parental role , even at the worst times
33
for the children. He was using the children as a means to his end , and consequently,
concerns were expressed that if the children were resident with him, he would not meet
his parental obligations. This is what appears to have warranted the supplementary
report and the revised recommendations.
[133] When the curator interviewed S[...] on 24 March 2017, she did so in the
presence of the plaintiff , although it was indicated that the plaintiff did not participate at
all in her interaction with S[...] but sat at the end of the table and remained silent. When
S[...] arrived at her chambers, he expressed interest in the ships in the harbour and was
very excited, jovial and happy. S[...] indicated that he was keen on sports and boy
scouts. He also indicated that he enjoyed karate and had a white belt but aspired to an
orange belt.
[134] When questioned by the curator as to why he had a keen interest in karate,
S[...]’s response was that he would be able to ‘block’ if someone tried to fight or hurt
him. When she questioned S[...] about the incident regarding the defendant assaulting
him, S[...] indicated that the defendant ‘slapped across my face and on my left cheek ’.
In relation to the incident where the defendant is alleged to have attempted to smother
him, S[...] was clear in his explanation to the curator that he had been lying on his bed
when the defendant took a pillow and put it over his head. He described the defendant
pressing harder when S[...] could not breathe. Although S[...] attempted to kick himself
free, he was struggling to do so. He reported to the curator that his paternal grandfather
attempted to justify the defendant’s conduct by saying he was just playing. S[...], on his
own accord, also indicated that the defendant had threatened to take him away from his
mother and from his school. S[...] indicated that he did not want any contact with his
father.
[135] S[...] confirmed that E[...] Primary is close to the plaintiff’s place of residence ,
[135] S[...] confirmed that E[...] Primary is close to the plaintiff’s place of residence ,
whereas his current school is in Merebank and takes approximately 45 minutes in the
morning to get there . S[...] indicated that he also had a good relationship with the
nurses who care for D[...] and they also make him cereal. He has a cellphone and is
able to contact the plaintiff telephonically should he so wish. When asked to engage
further about the defendant, S[...] informed the curator that the defendant would often
34
shout at him if he tried to play with his cousins and would take away his toys , namely
his PlayStation Vita and PlayStation Portable. The defendant did not assist him with his
homework.
[136] S[...] also recounted an incident in which the defendant had assaulted the
plaintiff by hitting her and giving her a blue eye. He indicated that the defendant
reported that his mother had hurt herself in the bathroom. S[...], however, reported that
he had seen his father assaulting the plaintiff and it made him want to cry. S[...] also
reported how the defendant would prevent him from playing with D[...]. When she
questioned S[...] about D[...], it was clear that he loved his brother and that they shared
a very close bond and ought to live with one another.
[137] At the end of the interview when the curator asked S[...] to draw a picture of his
family, what was noteworthy was that the picture omitted the defendant and rather
included all of his pets.
[138] The curator ad litem provided some corroboration for the plaintiff’s evidence
relating to the criminal charges against the defendant and his criminal conviction. She
records that there had been no less than nine criminal charges laid against the
defendant by the plaintiff, some of which pertained to criminal conduct against the
plaintiff herself and others pertaining to the minor children. The defendant was found
guilty of common assault against the plaintiff on 26 February 2014 under cas number
159/11/2013. The defendant paid the fine , as the sentence was imprisonment for a
year, of which six months were suspended for five years, alternatively a fine of R3 000.
The remaining charges had either not been investigated, or never prosecuted, or not
placed before the relevant courts to hear the matter.
[139] Of concern to the curator ad litem were the charges proffered by the plaintiff
under cas 159/11/2013 , in which she sought a conviction of child abuse , with the
under cas 159/11/2013 , in which she sought a conviction of child abuse , with the
defendant, inter alia, being accused of taking pornographic photographs of S[...]. In
support of the charge, the plaintiff indicated that the defendant had taken multiple
photos of S[...] and texted them to her , stating that he was training him to be a ‘player’
like his mother. Annexed to the charge sheet in this criminal docket were the naked
photographs of S[...], certain of which depict him playing with his genitals. The curator
35
ad litem was concerned that despite a request by the plaintiff , there has been no
intervention by the Child Protection Unit.
[140] The plaintiff had sought the intervention of an attorney when obtaining the
record, who wrote to the National Prosecuting Authority , requesting intervention in
respect of the previous cases involving the minor children , as well as an intervention for
the latest case under cas number 18/10/2016.
[141] In April 2016 , charges were laid against the defendant for contravening the
Children’s Act in relation to the defendant’s failure to administer the medication to D[...],
which had been prescribed by Dr Chetty. These charges were withdrawn.
[142] In the curator’s interview with Dr Chetty, he confirmed that S[...] had been a
patient of his since 2012 and that he had been admitted to hospital on a number of
occasions for health reasons. S[...] was examined by Dr Chetty on 30 September 2016,
pursuant to the allegation that the defendant attempted to smother him. S[...] reported
this incident to Dr Chetty. S[...] was also treated by a psychologist, Dr Venkatsamy who
prepared a report dated 25 February 2017. Despite the provisions of the interim
protection order, the plaintiff had agreed that the defendant be permitted to exercise
supervised contact with S[...] on the same basis as the order permitting him contact with
D[...]. Notwithstanding this agreement, the defendant has not exercised contact since
30 September 2016, as reported by Dr Venkatsamy.
[143] Clinical interviews were conducted by Dr Venkatsamy with S[...] over an
extended period between April 2016 and February 2017. S[...] intimated that he did not
wish to spend four days of visitation with each parent and wanted to reside with the
plaintiff. Dr Venkatsamy also recommended that the primary residence of S[...] be with
the plaintiff, as it is in his best interest s and that the defendant have supervised access
to S[...], owing in particular to S[...] being afraid of the defendant.
to S[...], owing in particular to S[...] being afraid of the defendant.
[144] The curator interviewed S[...] on 27 May 2025 and compiled a subsequent report
in July 2025. He was in grade 11 , about to turn 16 years old. He indicated that he had
been selected to play cricket in England and there was a potential for him to receive a
bursary from the England Embassy , which would afford him the opportunity to study
36
abroad. Although this was a wonderful opportunity , which excited S[...], he express ed
concern that he would require both parent s’ permission to obtain a passport for him to
leave South Africa.
[145] S[...] related to the curator how he and the plaintiff had been invited to attend a
cruise on the MSC Symphonia with his aunt and uncle. The plaintiff had requested the
defendant to consent to S[...] applying for a passport . The defendant flatly refused ,
resulting in the plaintiff and S[...] losing out on this holiday. S[...] expressed to her that
this would occur again, as he would only be 17 when he completes matric.
[146] He confirmed that the last time he had seen his father was at D[...]’s funeral on
11 October 2018. Prior to the funeral, S[...] had last seen the defendant on 19
September 2016 for a period of ten minutes. Despite the fact that S[...] has his own
cellular telephone , the defendant has never made enquiries regarding S[...] and has
never exercised telephonic contact. S[...] indicated that he would not want to see the
defendant, as the defendant has never contributed to his life and he had no bond with
him.
[147] The curator conducted an interview with the plaintiff on the same day , who
confirmed S[...]’s narration of the events. She confirmed that the defendant has not
exercised contact with S[...] since 19 September 2016. Due to h is failure to exercise
contact with S[...], he has accordingly been absent for over half of his S[...]’s. The
defendant’s behaviour towards S[...] and D[...] has been abusive , as the defendant
poked S[...] in the cheeks stating ‘do you know who I am, I am your father ’. After D[...]’s
cremation the defendant made snide remarks towards S[...] and said to him ‘you live in
Chatsworth which means you will be drug addict ’. The plaintiff confirmed that the
defendant has made no contribution towards S[...]’s life or D[...]’s while he was alive. He
defendant has made no contribution towards S[...]’s life or D[...]’s while he was alive. He
has not contributed any maintenance since their separation in 2012 and she confirmed
that S[...] is terrified of his father.
[148] The curator interviewed the defendant at court prior to the commencement of the
divorce trial, as she was not prepared to permit the defendant to attend at her chambers
in light of his previous threatening and aggressive behaviour toward her. When she
questioned him as to why he had not exercised contact with S[...] since September
37
2016, the defendant responded by saying ‘I walked away ’ after he was not able to
obtain a further enquiry from the family advocate and expressed his dissatisfaction in
exercising supervised contact.
[149] When questioned as to why he made no contributions to maintenance for the
children, his response was that there was no court order requiring him to do so. When
questioned further regarding this, the defendant indicated that he is not prepared to pay
maintenance, as he will not get the access he desired. When questioned as to whether
he would provide permission for S[...] to obtain a passport, the defendant’s response
was ‘Why would S[...] want to leave the country ?’ And that he would think about it after
the case.
[150] The plaintiff also reported that on the one occasion the defendant exercised
contact with D[...] in terms of the 2016 court order, he accused S[...] of stealing R30.
After the interim protection order was issued, the defendant’s firearm was removed and
it was made final in 2017.
Analysis
[151] As indicated, the only issues for determination relate to the division of the joint
estate and whether or not the plaintiff is entitled to an order that the defendant forfeit the
patrimonial benefits of the marriage and the primary residence and contact and care
arrangements in respect of the parties’ only surviving son, S[...].
[152] The plaintiff impressed me as a witness. I did not gain the impression that she
was lying or trying to paint the defendant in a bad light. Although she often became
emotional during the initial stages of the trial, she maintained her version and had a
good recollection of the incidents, which spanned a considerable period of time.
[153] The defendant and his brother did not impress me when they testified. It was
obvious that the defendant’s brother , A[...], was bias and was supportive of his brother.
He did not, in my view, testify honestly and said whatever he had been schooled to say
He did not, in my view, testify honestly and said whatever he had been schooled to say
by his brother. This view is reinforced by the fact that he testified that when he and the
defendant had a discussion on the Sunday preceding the trial, the defendant ‘reminded’
him that he had deposed to an affidavit regarding the plaintiff’s alleged ‘suicide
attempts’. He did not produce such affidavit nor could he recall when and where he
38
made the affidavit.
[154] What is noteworthy about his evidence is what emerged during cross -
examination, namely that he had obtained a protection order against the defendant for
his abusive behaviour toward him and his son. He indicated that he and the defendant
were estranged for a long period of time and reconciled shortly before the trial
reconvened. This corroborates the plaintiff's allegations of abusive behaviour by the
defendant directed at her, their children and the defendant’s family members as well.
[155] The defendant , in my view , was dishonest when he testified. He could not
recollect specific incidents nor could he remember the dates when events occurred.
What was evident is that he made no contribution to the joint estate and was supported
by the plaintiff. He indicated that he ran a successful business and was registered for
tax. When he was questioned as to why he had not discovered these documents, he
indicated that they were with his accountants. He attempted to downplay the income he
received from the business, which did not tie in with his evidence. When he was ‘caught
out’, he then changed his version several times.
[156] It is also apparent that he made no contribution to the support of the plaintiff or
the minor children. The plaintiff had testified that he and the minor children were on her
medical aid until she removed the defendant as a consequence of fraud.
[157] Most notably , the transcript will reveal that none of the plaintiff’s evidence of
abuse and the incidents she testified about was disputed by the defendant. In fact, I
gained the impression that he falsely accused her of having affairs to justify his abus ive
behaviour. That there were instances of physical abuse was not denied nor were the
photographs depicting such abuse denied.
[158] Interestingly enough, it also emerged during the cross -examination of A[...] that
both he and his child, who both reside with the defendant in their parents’ property in
both he and his child, who both reside with the defendant in their parents’ property in
Bluff, had interim protection orders against the defendant. A[...] was evasive regarding
the details of the order and refused to divulge the exact details of what prompted him to
obtain an interim protection order for himself as well as his son. He stated that the
reason was verbal abuse by the defendant and indicated that he was going to withdraw
39
them.
[159] What corroborates the plaintiff's version of abuse by the defendant over the
years is his brother’s evidence that he had to apply for and obtained a protection order
against the defendant for himself and his son. Such an order was still in place at the
time he testified. When questioned about it, he responded that he intended to attend at
court and have the orders discharged. What was quite apparent was that he had been
persuaded by the defendant to testify on his behalf and that he had no independent
recollection of the so-called suicide attempts.
[160] The plaintiff’s evidence was not really challenged during cross-examination, the
only aspect that was challenged by the defendant was the alleged abuse of S[...], which
the defendant avers was simply a pillow fight. The plaintiff’s evidence was not
challenged by the defendant and consequently this court must accept her version as
being true.
[161] What is evident is that from February 2011, the plaintiff was no longer residing at
the matrimonial home , as the defendant had effectively evicted her and she was not
permitted to have contact with the children. This was canvassed in detail in the curator
ad litem’s first report. The circumstances precipitated the rule 43 application for her to
exercise specified and defined contact with the minor children. Subsequent to the rule
43(6) order and the interim protection order , which the plaintiff obtained on behalf of
S[...], the defendant’s rights of contact were limited to supervised contact at the home of
the plaintiff.
[162] Despite this, between 2016 , when the rule 43(6) order was granted , and 2018,
when D[...] passed away, the defendant only visited D[...] on one occasion. Before the
plaintiff obtained the interim protection order on S[...]’s behalf, the defendant was
entitled to exercise contact with S[...] on a four days on, four days off basis. Despite the
court order, S[...] was extremely upset at having to spend time with the defendant and
court order, S[...] was extremely upset at having to spend time with the defendant and
confirmed that this was as a consequence of the defendant ill -treating him but more
specifically attempting to smother him.
40
[163] It was only a fter the interim protection order in respect of S[...]’s interdict was
confirmed that the defendant’s firearm was removed. When the interim protection order
was made final in 2017, the defendant never visited S[...]. It is common cause and not
disputed that the defendant made no financial contribution to S[...] or D[...], specifically
S[...]’s educational costs , from the time that he attended L[...] D[...] D[...] Centre until
present. The defendant made no payments of maintenance to the plaintiff and did not
contribute to any other expenses pertaining to the children, at the very least since 2016,
if not prior thereto. It is also undisputed that , apart from the defendant’s say -so that he
contributed to the paving at the immovable property situated in Chatsworth, such
property has been maintained solely by the plaintiff with no contribution by the
defendant.
[164] A similar situation pertains in relation to the plaintiff’s pension fund interest as
well as her retirement annuity.
[165] As already indicated , the plaintiff’s evidence was not challenged in cross -
examination by the defendant. What was challenged was the alleged abuse of S[...].
The plaintiff also gave evidence regarding the defendant's contact when D[...] died.
Although the defendant had not exercised contact for some two years prior to D[...]’s
passing, the plaintiff still contacted him to advise him of D[...]’s passing. The plaintiff’s
evidence in relation to the defendant’s conduct at the time of D[...]’s passing and funeral
was not challenged. A full -hour dispute resulted in a tussle over D[...]’s ashes, as the
defendant attempted to steal them.
[166] The evidence of the defendant was that he financed the parties’ wedding in
2006, that after the marriage and as a consequence of brain surgery , the beneficiary of
his life cover of R3 million was changed from his mother to the plaintiff and that the
his life cover of R3 million was changed from his mother to the plaintiff and that the
plaintiff attempted to commit suicide in 2006 on several occasions. The suicide incident ,
which the defendant testified to, occurred in 2006 when she allegedly jumped into the
pool at his parents’ home on the Bluff , after trying to drown herself with a rope , which
was tied to a block and the other end tied to her ankle. The defendant’s evidence was
that his brother , A[...], witnessed the incident and that the plaintiff refused to seek
professional help after the incident.
41
[167] On the defendant's version, he exercised contact on three occasions in 2016 and
2017 in respect of the children. On his version , his contact with the children was
untenable as a consequence of the plaintiff’s alleged verbal abuse during the contact.
He testified that he wanted rights over S[...] at least every second weekend. When it
was pointed out to him that there was a court order entitling him to see S[...], his
response was that he had not seen him in ten years.
[168] Although under cross -examination the defendant acknowledged that the plaintiff
played no role in his visitation, as D[...] was being supervised and D[...] was handed
over whilst the plaintiff allegedly kept S[...] upstairs, the defendant contradicted himself,
as he indicated that the plaintiff verbally abused him and the children. This is obviously
a lie, as she could not do so if she was upstairs and not involved in his contact with the
minor children.
[169] The defendant’s evidence in relation to why he ought to share in the joint estate
was that for a period of six years , he took full responsibility for the children , including
food, nappies and essentials. His contribution to the immovable property in Chatsworth
was in 2006 when he allegedly attended to the cementing of the yard. What is also
noteworthy is that the defendant testified that he took full responsibility for the plaintiff’s
mother and would buy her groceries. However, it emerged during cross -examination
that he had access to the mother’s grant card and used that money to buy her
groceries. The defendant confirmed that he cancelled the life policy in favour of the
plaintiff, and that at present, he has no income and is totally reliant on his father and
brother to assist him financially , as he lost his business. He was unable to provide any
details in relation to the business, could not remember the Capitec Bank account, or his
tax number and indicated that he had not submitted any tax returns since Covid -19. In
tax number and indicated that he had not submitted any tax returns since Covid -19. In
relation to the immovable property and any other financial contributions, there was a
bleak reference to an agreement with his attorney, Ramesh Luckyc hand, but he could
provide no details in this regard.
[170] The defendant was challenged in relation to his evidence regarding the plaintiff’s
alleged suicide, with her denying it. In response , the defendant was unable to provide
specific dates upon which he alleged her suicide attempts occurred.
42
[171] To corroborate his version in relation to the plaintiff’s suicide attempts, the
defendant called his brother, A[...], to testify. He allegedly produced an affidavit relating
to the plaintiff’s suicide attempt. What emerged during the course of cross -examination
was that he did not produce the affidavit but was reminded of the existence of such an
affidavit by the defendant approximately two days prior to him testifying.
[172] A[...] was vague and his evidence parroted that of the defendant. A[...]’s version
was that the incident occurred in 2007 , which contradicted the defendant’s version. On
A[...]’s version, both his parents were at home and it was his father who stopped the
plaintiff from jumping into the pool. A[...] also attempted to relate another incident on an
unknown date where the plaintiff attempted to kill herself at the matrimonial property.
[173] At the resumed hearing this year, Ms Clarence, the curator ad litem for S[...],
placed on record that she would file a report and seek a termination of the defendant's
parental rights to S[...], given that he has not seen him in ten years and has not
contributed to S[...]’s maintenance in any way.
[174] The defendant never visited S[...]. The plaintiff confirmed that she has been
solely responsible for S[...]’s educational costs from the time that he was at L[...] D[...]
E[...] Centre to date. The defendant had made no payment of any maintenance to the
plaintiff nor contributed to any other expenses pertaining to the children since at least
2016.
Termination of parental responsibilities and rights
[175] Ms Clarence had prepared two reports in this matter, the latest of which is most
relevant to these proceedings. Although the plaintiff did not plead a termination of the
defendant’s parental responsibilities and rights, such order is being sought upon the
application of the curator ad litem and the plaintiff.
[176] Section 28 of the Children’s Act 38 of 2005 (Children’s Act) deals with, inter alia,
[176] Section 28 of the Children’s Act 38 of 2005 (Children’s Act) deals with, inter alia,
the termination of parental responsibilities and rights. Section 28(1) provides as follows:
‘(1) A person referred to in subsection (3) may apply to the High Court, a divorce court in a
divorce matter or a children's court for an order-
(a) suspending for a period, or terminating, any or all of the parental responsibilities and
rights which a specific person has in respect of a child; or
43
(b) extending or circumscribing the exercise by that person of any or all of the parental
responsibilities and rights that person has in respect of a child.’
[177] As to who may bring such an application, the provisions of s 28(3) apply and
may be brought by:
‘(3) An application for an order referred to in subsection (1) may be brought-
(a) by a co-holder of parental responsibilities and rights in respect of the child
(b) by any other person having a sufficient interest in the care, protection, well -being or
development of the child;
(c) …
(d) in the child's interest by any other person, acting with leave of the court…’
[178] Section 28(4) enumerates the factors which a court is to take into account when
considering an application to terminate parental responsibilities and rights, namely:
‘(a) the best interests of the child;
(b) the relationship between the child and the person whose parental responsibilities and
rights are being challenged;
(c) the degree of commitment that the person has shown towards the child; and
(d) any other fact that should, in the opinion of the court, be taken into account.’
[179] Section 29(4) of the Children’s Act provides that a court hearing any application ,
including an application in terms of s 28 , ‘must be guided by the principles set out in
Chapter 2 to the extent that those principles are applicable to the matter before it ’.
Chapter 2 of the Children’s Act includes s 7 , which provides for the best interests of the
child standard. Section 7(1) lists various factors to take into account, namely: the nature
of the personal relationship between the child and the parent ; the attitude of the parent
towards the child ; the capacity of the parent to provide for the needs of the child ,
including emotional and intellectual needs ; the need for the child to maintain a
connection with his parent or extended family ; the child’s age, maturity and stage of
connection with his parent or extended family ; the child’s age, maturity and stage of
development, gender, and background; the child’s physical and emotional security ; the
need for a child to be brought up within a stable family environment ; and the need to
protect the child from physical or psychological harm and any family violence involving
the child or family member of the child.
[180] Our courts have terminated parental responsibilities and rights in certain
44
instances, applying the factors referred to in ss 7 and 28(4) of the Children’s Act. In LRJ
and Another v JBJ ,4 the court identified financial neglect, emotional neglect and abuse ,
and physical neglect and abuse as reasons for terminating parental responsibilities and
rights. In F v F ,5 the court had regard to the fact that the father failed to financial ly
support the children, was absent from their lives, failed to consent to the children
applying for passports and failed to attend bonding sessions. The further fact which the
court was of the view justified the termination of parental responsibilities and rights was
that the children had expressed the view that they did not want a relationship with their
father.
[181] In OMLM v KKCM,6 the court considered the following factors, namely:
‘- the substance and drug abuse of the respondent;
- his unwillingness and/or inability to contribute towards the maintenance of the minor child ;
- his lack of commitment to get medical and psychiatric treatment;
- his tendency to attempt suicide;
- his obsession with the applicant’s private and romantic life;
- his lack of interest in contact with the minor child and his failure to honour visitation rights;
- his lack of interest in the child’s well-being, schooling and life in general…’
The court, however, did not issue an order for the termination of parental
responsibilities and rights, as the initial order was amended to a suspension of parental
responsibilities and rights.
[182] In dealing with the first issue in relation to the termination of parent al rights, what
is evident is that at a very young age , the defendant both verbally and physically
abused S[...]. He confirmed the plaintiff’s evidence in relation to what S[...] had related
to her and Dr Chetty as to how the pillow incident occurred, save to say that he
described it as being a pillow fight. That the interim protection order was confirmed
described it as being a pillow fight. That the interim protection order was confirmed
points to a contrary explanation. S[...], at a very young age , was unequivocal in his
decision that he wanted nothing to do with the defendant. This was voiced not only to
the plaintiff but also to the Family Advocate and the Family Counsel lor, as well as Dr
Venkatsamy, who was treating him.
4 LRJ and Another v JBJ [2025] ZAGPJHC 16 para 54.
5 F v F [2025] ZAGPJHC 174.
6 OMLM v KKCM [2020] ZAGPPHC 615 para 65.
45
[183] It is common cause that the defendant has had no contact with S[...] for
approximately ten years , apart from seeing him at D[...]’s funeral. S[...] is 16 years old
and in terms of s 10 of the Children’s Act, his voice must be heard. The defendant failed
to contribute to S[...]’s well-being both in a financial sense as well as in an emotional
sense by failing to exercise contact with him , despite the existence of a court order
entitling him to do so.
[184] S[...] will turn 17 in his matric year and it is imperative that the plaintiff be in a
position to make major decisions on his behalf without the consent or co -operation of
the defendant. This is especially so if he obtains financial assistance to study abroad
and needs travel documents. The defendant, on a prior occasion, refused to consent to
a passport and attempted to use this as a bargaining tool to have contact with and
access to the minor children. Even at the resumed hearing, he indicated that he was
non-committal and the clear impression I got from his answer to the question was that
he would not consent to a passport for S[...], thereby placing his interests above that of
his son.
[185] The defendant , in addition , has not contributed in any way to S[...] or D[...]
financially since 2016 and the plaintiff has solely been responsible for him. Given the
conduct of the defendant, the lack of an emotional bond to S[...], his failure to contribute
to his financial and emotional well -being and the psychological impact he has had on
S[...], I am of the view that I ought to grant an order terminating the defendant’s parental
responsibilities and rights in accordance with s 28 of the Children’s Act to wards S[...],
as it is in the best interests of S[...]. As upper guardian of the minor child , I do not
believe that it is in S[...]’s interests to be forced to maintain contact or a relationship with
someone who has made no emotional or financial effort to be in his life. The making of
someone who has made no emotional or financial effort to be in his life. The making of
such an order does not preclude the plaintiff from approaching the Magistrates’ Court
for maintenance for S[...].
[186] When the plaintiff instituted the divorce proceedings against the defendant in
2013, an order was sought in terms of the provisions of s 9(1) of the Divorce Act 70 of
1979 (Divorce Act) for forfeiture by the defendant of the patrimonial benefits of
marriage. In the interim, the section has been amended on 14 May 2024 by the Divorce
Amendment Act 1 of 2024, which deals with the forfeiture of patrimonial benefits .
Section 9(1) now provides as follows:
46
‘When a decree of divorce is granted on the ground of the irretrievable break -down of a
marriage, including a Muslim 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.’
[187] The only difference between the original version of the section and the amended
version is the inclusion of the reference to ‘including a Muslim marriage ’. The section
does not refer to a specific type of marriage but rather refers to the forfeiture of the
patrimonial benefits. It is common cause that the parties were married in community of
property.
[188] In addition, the plaintiff is the sole contributor to her pension and was also solely
responsible for the maintenance and upkeep of the immovable property at Chatsworth.
Save for a vague allegation of contributing to the paving in 2006, the defendant has
made no contribution to such immovable property. I do not believe his assertions that
he made any contributions at all to the upkeep, maintenance or the acquiring of such a
property in any way. It was never the intention for him to benefit in any way – it was only
the plaintiff who signed the acknowledgement of debt and her evidence that her mother
did not want him to benefit was unchallenged. It was only registered jointly in their
names, as the defendant refused to register an antenuptial contract.
[189] Given the defendant’s conduct throughout the short marriage and his failure to
contribute to the joint estate, it would be just and equitable in the circumstances if this
court grants an order wherein the defendant forfeits his right, title and interest in and to
court grants an order wherein the defendant forfeits his right, title and interest in and to
the plaintiff’s pension fund, retirement annuity and the immovable property situated at
S[...] Road, Chatsworth. I am fortified in this view having regard to the facts of the
matter and the authorities I have had regard to. 7
[190] The plaintiff also confirmed that the immovable property in which she resides
with S[...] at S[...] Road, Chatsworth is maintained solely by her without any
7 M v M [2023] ZASCA 33 at paragraph 24; Wijker v Wijker 1993 (4) SA 720 A at 729
47
contributions by the defendant. In addition, she and her employer have been the sole
contributors to her pension fund. She has also solely contributed to her Liberty policy.
Costs
[191] It is trite that the award of costs is a matter which falls within the discretion of the
court, which discretion must be judicially exercised having regard to the facts of a
matter. The costs which must be determined relate to the divorce action, the various
interlocutory applications which were adjourned and the rule 43 and rule 43(6)
applications.
[192] Section 10 of the Divorce Act provides as follows:
‘In a divorce action the court shall not be bound to make an order for costs in favour of the
successful party, but the court may, having regard to the means of the parties, and their
conduct in so far as it may be relevant, make such order as it considers just, and the court may
order that the costs of the proceedings be apportioned between the parties.’
[193] The plaintiff has been successful in obtaining certain costs orders against the
defendant during the proceedings.
[194] Given the history of the matter and the defendant's intransigent behaviour, I am
of the view that the most appropriate order would be to direct that the defendant is to
bear the plaintiff’s costs of the action.
Order
[195] The following order is issued:
1. In terms of s 28 of the Children’s Act 38 of 2005, the defendant’s parental
responsibilities and rights in respect of the minor child, S[...] O[...] J[...] , a minor boy
born on 25 June 2009, are terminated.
2. The issue of maintenance in respect of S[...] O[...] J[...] is referred to the
maintenance court for hearing.
3. In terms of s 9(1) and (7) of the Divorce Act 70 of 1970 , read with s 9 of the
Matrimonial Property Act 88 of 19 84, the defendant forfeits, in favour of the plaintiff , his
entitlement to share in the patrimonial benefits of the marriage in community of
property, which shall include:
48
3.1 the pension benefits of the plaintiff held in the Government Employees Pension
Fund;
3.2 her benefits in and to her retirement annuity with Liberty Life;
3.3 the immovable property described as Portion 528 ( of 255) of Erf 1[...] C[...] ,
Registration Division FT Province of KwaZulu-Natal, in extent 186 square meters
and physically situated at 3[...] S[...] Road, Westcliff, Chatsworth.
4. The defendant shall sign all such documents and take all such steps necessary
to effect registration of transfer into the plaintiff’s name of the defendant’s rights in and
to the property and, should he fail or refuse to do so, the Sheriff or his lawful Deputy is
authorised to and directed to sign all such documents and take all such steps
necessary on behalf of the defendant to effect registration of transfer into the plaintiff’s
name of the defendant’s rights in and to the property;
5. The defendant is to bear the plaintiff’s costs occasioned by the divorce action,
including any reserved costs.
_____________________
HENRIQUES J
Case Information
Dates of hearing: 31 August 2016; 01 September 2016; 06 September
2016; 03 June 2025; 10 October 2025
Date of judgment: 24 March 2026
Counsel for plaintiff: Mr A Luckan
Instructed by: AMITH LUCKAN & COMPANY
Plaintiff’s Attorneys
45 Road 701
Montford
Chatsworth
Email: amith@luckanandco.co.za
49
Curator ad litem: Advocate S Clarence
sian@rsabar.com
Attorney for defendant: In person
Email: omeshjairaj47@gmail.com
This judgment was handed down electronically by circulation to the parties’
representatives by email , and released to SAFLII . The date and time for hand down is
deemed to be 9h00 on 24 March 2026.