REPUBLIC OF SOUTH AFRICA IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, JOHANNESBURG

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1 1 SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy REPUBLIC OF SOUTH AFRICA IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, JOHANNESBURG (1) REPORTABLE: YES / NO (2) OF INTEREST TO OTHER JUDGES: YES / NO (3) REVISED CASE NO.: 15986/2016 DATE SIGNATURE In the matter between: M.: K. PLAINTIFF and M.: C. (BORN H.) DEFENDANT Heard:13 November November 2017, 15 December December 2017, 8 January January 2018, 12 January 2018 Delivered: 22 January 2018

2 2 JUDGMENT Coram: VAN DER SCHYFF AJ Introduction [1] The parties cited in this matter seek a decree of divorce. It is common cause that they were married to each other in community of property on 17 November 2011 at Johannesburg. Two boys who are currently respectively 6 years and 7months, and 3 years and 5 months old, were born from this marriage. [2] The parties have agreed prior to the onset of the hearing that a liquidator will be appointed to facilitate the division of the joint estate. [3] Since the parties agree that the marriage has irretrievably broken down (a fact attested to by the evidence presented by both parties) the remaining issues that need to be adjudicated are the maintenance of the defendant, and the maintenance of the two minor children, and the appropriate post-divorce care and contact regime pertaining to the two minor children. 1 [4] Both parties agreed that it would be in the best interests of the minor children if both parties retain full parental rights and responsibilities in respect of the minor children as 1 Section 6(1) of the Divorce Act, No 70 of 1979, prescribes that a court may only grant a decree of divorce if the court is satisfied that satisfactory provisions are made or contemplated with regard to the welfare of any minor child, or that the provisions made or contemplated are the best that can be effected in the circumstance. Section 6(3) of the Act provides that a court, when granting a decree of divorce, may in regard to maintenance, or custody or guardianship of, or access to, a minor child make any order which it may deem fit. It goes without saying that this wide discretion must be exercised judicially and in accordance with the principles of the law. Section 1(2) of the Children s Act, No. 38 of 2005, determines that in addition to the meaning assigned to the terms custody and access in any law, and the common law, the terms custody and access in any law must be construed also to mean care and contact as defined in this Act.

3 3 envisaged by section 18 of the Children s Act, No. 38 of 2002 (hereafter the Children s Act). [5] The trial was conducted over a period of 14 days and concluded on Wednesday 10 January During this period evidence was heard from the plaintiff, two expert witnesses called by him, Dr. Martin Strous, and Prof. Lorna Jacklin, the defendant and the witnesses called by her - Ms. Chantelle Anderson, the head mistress of the Montessori school attended by the parties eldest son T., and two expert witnesses Dr. Deidri Kruger and Dr. David Benn; and the Family Councillor, Ms. Naidoo, and Family Advocate, Adv. Maikoo. The matter was adjourned until Friday 12 January 2018 for closing arguments. Counsel were requested to prepare and submit heads of argument. Both counsels heads of argument provide a good indication of their respective submissions on how the evidence lead in the case support their respective cases. Counsel for the plaintiff also provided me with an extensive bundle of authorities. I am indebted to both counsel for the analysis of the evidence. Background [6] The plaintiff instituted divorce proceedings during May 2016 and sought from the onset an order that the minor children s primary place of residence shall be with him. The defendant did not oppose the granting of a decree of divorce, but in her counterclaim sought an order that the minor children s primary place of residence shall be with her in Germany and that she be granted leave to depart from South Africa permanently together with the two minor children. The implication of the pleadings as they stand is that both parties request the court to order that the primary residence of the children vest with them, within the context that if the children s primary residence is ordered to be with the defendant, it will effectively sanction the relocation of the children to Germany. [7] It was only during the trial that the plaintiff advanced the proposition that a shared residency regime would be in the best interests of the children. Despite this apparent change of heart, neither the final draft order submitted on behalf of the plaintiff as part of the plaintiff s counsel s heads of argument, nor the argument contained in the plaintiff s counsel s heads of argument, promote a shared residency regime. Since the court is however obliged to make an order pertaining to care and contact that is in the best

4 4 interests of the children, I am not bound by the parties preferences and, if circumstances dictate the need to implement a shared residence regime in the best interests of the children, in circumstances that allow therefore, such an order would follow. [8] During the hearing the plaintiff advanced the argument that the defendant s proposed relocation is entirely at her election and that the defendant is not considering the best interests of the children in contemplating the relocation, but endeavouring to frustrate a possible shared residency arrangement and alienate the children from the plaintiff. Such a contention is unsupported if viewed from the perspective that plaintiff, in his summons, claimed that the minor children s primary place of residence should be with him, without entertaining, even in the alternative, the possibility of a shared residence agreement. The plaintiff s claim that the minor children s primary residency must vest with him was reiterated during opening argument. Although the plaintiff testified during crossexamination that the relief as claimed in the summons was directed at obtaining primary residence of the minor children due to the fact that the defendant has threatened to take the children to Germany even before the divorce was instituted, it is insightful to note that the allegations made by the plaintiff in the summons, would, if substantiated, require any court to seriously consider granting the sole residence of the minor children to the plaintiff. The allegations are directed at the defendant s ability and suitability to act as the minor children s caregiver. Allegations are, inter alia, made that the defendant is abusive, aggressive, and emotionally unstable, that she neglected the interests of the minor children, and through her behaviour placed the minor children at risk. The content of the summons issued by the plaintiff does not support the contention that was raised during his testimony that a shared residency regime is what he was seeking or that such a shared residency regime would be in the best interests of the children. [9] However, in the light of the contention that the defendant s elected relocation is selfish and occasioned in an effort to not only frustrate the contact between the plaintiff and the children but also to alienate the plaintiff and the children, and specifically in light of the fact that Dr Strous, the plaintiff s main expert witness, said in no unclear terms that if the defendant cared about the best interests of the children she would not even consider relocation, it is imperative, at the outset, to contextualise the defendant s request to be allowed to relocate the children with her to Germany.

5 5 [10] It is common cause that the defendant is a German citizen who is currently residing in South Africa in terms of a relative s visa (spouse). The defendant has been residing in South Africa since The conditions of the current relative s visa are that the defendant must reside with SA citizen [ ] (the plaintiff), and she may not conduct work. This visa expires on 3 February [11] I am of the view that the defendant s status as a foreigner, whose permission to remain in the country is soon expiring, creates a unique context within which the question of the children s primary residence must be determined. When the defendant s visa that permits her to stay in the country expires, she is obliged to leave the country. Although it has been canvassed by the plaintiff that there was (and is) an option open to the defendant to obtain ministerial consent to remain in the country after the expiry of the relative s visa and the divorce, no proper case was made out in this regard: [11.1] The defendant was asked in cross-examination whether she endeavoured to obtain legal advice to prolong or secure her stay in South Africa. She testified that she did not because she was advised by two separate professionals that there was no good prospect of success because she does not have any special skills. 3 [11.2] During closing argument plaintiff s counsel argued that s 31(2)(b) of the Immigration Act No. 13 of 2002 provides an option that could be utilised by the defendant. (The applicability of s 31(2)(b) was canvassed to a certain extent during the trial.) [11.3] Although plaintiff s counsel did not address me on s 27 of the Immigration Act, neither referred to s 27 at any time during the trial, she also incorporated a copy of s 27 of the Act in the heads of argument. Section 27(g) provides that the Director-General may, subject to any prescribed requirements, issue a permanent residence permit to a foreigner of good and sound character who is the relative of a citizen or permanent resident within the first step of kinship. [11.4] Counsel for the defendant did not address the applicability of s 27 of the Immigration Act during oral argument or in his heads of argument. This failure is 2 See paragraph [14] below. 3 The defendant testified that she did not consult Mr. Chris Watters as proposed by plaintiff, inter alia, because she obtained her own independent advice.

6 6 negligible in light of the fact that the applicability of s 27 was never canvassed during the trial. [11.5] During closing argument, defendant s counsel addressed plaintiff s contention that s 31(2)(b) of the Immigration Act provides a viable option that the defendant should have pursued. Counsel for the defendant argued that the plaintiff had to prove the extent of available options by calling an expert witnesses if the plaintiff wanted the court to consider this argument. He argued that the plaintiff s submission assumes the existence of special circumstances that are required for the application of s 31(2)(b) without having proved any. He also argued that it was premature to expect the defendant to submit an application to the Minister in terms of s 31(2)(b) in view of the fact that the plaintiff summarily requested that the primary residence of the minor children be afforded to him when the summons was issued. The need to approach the Minister in terms of s 31(2)(b), and subsequently the special circumstances required by the relevant section, would only arise in the event of the court dismissing the defendant s claim to relocate with the children to Germany. Note should be taken of the fact that the defendant did state under cross-examination that if the court do not authorise the relocation of the children she can pursue s 31(2)(b) of the Immigration Act, although she does not know whether it really provides a viable option. [11.6] Defendant s counsel drew the court s attention to the cumulative effect of the fact that the defendant was charged with, and finger printed for criminal charges laid at the instance of the plaintiff. It was put to plaintiff during cross-examination that he was aware of the fact that if the defendant was found guilty of a criminal charge, it is not a foregone conclusion that she will be able to obtain any permission to stay in or visit the country again. It was also argued that until all the criminal charges were withdrawn the defendant would not be able to obtain any positive police clearance certificate, hence another obstacle in obtaining permission to remain in the country. Despite an undertaking to withdraw the most recent charge given by the plaintiff when he was under reexamination on 15 November 2017, the plaintiff only submitted a withdrawal statement on 13 December 2017 and the defendant is still required to appear in court on 18 January [11.7] Section 31(2)(b) provides an unqualified discretion to the Minister of Home Affairs to, on application, grant a foreigner the rights of permanent residence for a 4 At the time of writing this judgment I was not privy to what happened on 18 January 2018 pertaining to the charges.

7 7 specified or unspecified period when special circumstances exist which would justify such a decision, on terms and conditions determined by him. I cannot predict whether the Minister would have granted such an application if it was submitted. The pending criminal charges in itself would, to put it mildly, complicate any application for permission to stay in the country at this point in time. In addition the plaintiff gave evidence that the defendant did work and earn an income in South-Africa for a period before her first son was born. This, now documented, violation of the condition of her visa might likewise prevent, or hamper the future acquisition of permission to visit or stay in the country. [11.8] There is no basis in law on which I can forbid the defendant, a foreign national whose permission to stay in the country is expiring within weeks, from leaving South Africa. Neither can I intervene and authorise her continued stay in the country on the facts before me. I must adjudicate the matter based on the current factual reality that she is obliged to leave the country on 3 February The factual matrix [12] Plaintiff s counsel contended that the historic position of the care of the children and the attachment of the children to the parties prior to the plaintiff s departure from the former matrimonial home is irrelevant and unhelpful in this enquiry. I cannot agree with such an approach. The defendant s early conduct and her view that the plaintiff renewed his bonds with the children after obtaining legal advice have to be evaluated within the context created by the historic events. [13] The reality of the parties relationship enfold in four distinct phases. This analysis is based on the facts that I found to be common cause between the parties, or established during evidence. In some instances the parties disagree on the interpretation to be placed on the facts that I found to be undisputed. I only refer to facts that I regard as relevant and central to the decision that needs to be made. [14] The first phase of the parties relationship: The plaintiff and the defendant commenced their relationship in 2002 in Germany. The plaintiff was pursuing a career in professional football and the defendant was a graphic design student. In 2003 the plaintiff returned to South Africa to pursue his football career with the soccer team Kaizer Chiefs

8 8 of which his father was the founder. The parties sustained a long distance relationship. The plaintiff visited Germany for short periods. To sustain the relationship the defendant visited South Africa for substantially longer periods on a visitor s visa. Although the defendant successfully completed her graphic design studies in 2003 she completed only a short internship thereafter. Due to the fact that the defendant was frequently absent from Germany for substantial periods to spent time with the plaintiff in South Africa, she was not able to secure any permanent employment in Germany. She was employed by her father during the periods that she was in Germany. The parties relationship continued on this basis until the parties broke up during They reconciled towards the end of 2008 and decided that the defendant would move to South Africa to live with the plaintiff on a more permanent basis. [15] The second phase of the parties relationship: In 2009 the defendant acquired a relative s visa on the basis of her permanent relationship with the plaintiff. It was a condition of the visa that she may not work while in South Africa. The defendant fell pregnant unexpectedly but the pregnancy ended in a miscarriage. The parties planned their next pregnancy and the parties son T. was born in June The plaintiff was present at, and an involved parent after, T. s birth. He assisted the defendant to the extent that his professional football responsibilities allowed. The defendant exclusively breastfed T.. 5 She took various courses including baby massage, baby exercise and baby swimming courses. The defendant suffered postpartum depression 6 and was assisted during this period by both her mother and the plaintiff s mother because the plaintiff travelled frequently due to his professional football responsibilities. The parties married in November The plaintiff s mother was very involved in the parties lives. 7 The plaintiff has a very close relationship with his mother. He testified that she played a large role in his life, and in my boys lives and our marriage and everything else. 8 The evidence indicates that the plaintiff s extended family has very strong familial relations. 5 She never used any formula to feed the baby. 6 Plaintiff s counsel contended at one stage that a negative inference should be drawn pertaining to the defendant s emotional state on the fact that she developed the depression while she was not subjected to stressful living conditions. It should be considered, however, that the evidence before the court, provided by the plaintiff, is that the defendant, was devastated after her miscarriage, and that she fell pregnant with T. not long thereafter. 7 The evidence indicate that the defendant s mother also assisted the parties but the extent of her involvement was not a contentious aspect during the trial. 8 Transcript p

9 9 [16] The third phase of the parties relationship: The third period in the parties relationship commenced more or less after K., the parties youngest son s conception during the end of During this period the plaintiff terminated his football career and became employed as an administrator at Kaizer Chiefs Football Club. He enrolled for a BComm degree during this period (but abandoned his studies during April 2016). K. was born in June 2014, and at that stage the marriage had already begun to deteriorate. The plaintiff attributed the conflict, inter alia, to the fact that he had a significant reduction in income and this frustrated the defendant. The defendant said that the plaintiff became depressed when his football career ended. According to the defendant the plaintiff assisted with T. s care in the first weeks after K. s birth. K. was also exclusively breastfed and it is the defendant s case that she is still breastfeeding him, a fact admitted by plaintiff in his summons. This is also the time during which T. s schoolteacher testifies that she saw the plaintiff transporting T. to and from school for a short period. On Christmas Day in 2015 the parties relationship finally shattered and in the following months the plaintiff was frequently absent from the matrimonial home. It is evident from both parties evidence that during the period that the plaintiff remained in the matrimonial home there was discord and strife between them. The plaintiff instituted divorce proceedings during May 2016 and left the matrimonial home in June During this period of strife and conflict there was no court order regulating the contact between the plaintiff and the minor children. Although both parties offer different reasons, it is apparent that this was an exceptionally turbulent period. Even during the time before the plaintiff moved out of the matrimonial home, his contact with the minor children was irregular and unstructured. After he moved out the plaintiff often arrived without announcement at the matrimonial home to enforce contact with the children, and sometimes removed one or both of the children overnight from the matrimonial home without making prior arrangements with the defendant. This is also the period during which the plaintiff had to be rushed to hospital for an adverse reaction caused by drinking cough medicine while consuming alcohol which, together with other pills she found, gave rise to the defendant s fear that the plaintiff is abusing prohibited substances. 9 The defendant s conduct alternated between requesting the plaintiff to keep his agreed contact arrangements so as not to disappoint T., requesting the plaintiff to agree to 9 Except for admitting that there was an instance that both parties used illegal substances, the plaintiff denied that he engaged in substance abuse or need therapy in this regard. The defendant persisted in her view that this was a concern to her. This is not a factor that I considered in coming to my conclusion since there was no conclusive evidence in this regard before me.

10 10 structured telephonic contact, and endeavouring to restrict the plaintiff s contact at times when she opined that he was not entitled to it. 10 The acrimony during this period was immense and the bulk of the mutual accusations of abuse originated from this period. 11 [17] The fourth phase of the parties relationship: The fourth phase of the parties relationship can be described as the structured phase. As court orders were obtained to structure the mid-divorce care and contact regime, the frequency of contact was regulated. Although the court orders provided more structure it did not alleviate all the tension. The handing over of the children remained stressful and often resulted in conflict situations and sometimes a literal tug-of-war over (and with) the minor child, K.. During this phase the parties excessively video-recorded their engagements with each other. The evidence indicates that go-pros (video-recording devices) and cell-phones were readily available and frequently used. The defendant testified that the plaintiff excessively started to video record each interaction between himself and the children since the inception of the litigation, to the extent that the minor children would become frustrated with the recording device being in their faces. It was her case, and was argued in closing, that the plaintiff suddenly wanted to create proof that he was an involved parent. Examples that the defendant gave was that when she was feeding the young child plaintiff would take the spoon from the hand and feed the child (while recording it), similarly when she bathed the children the plaintiff would shove her aside, take the washing cloth and video tape his actions. The plaintiff did not address this perspective on his conduct when the defendant was cross-examined. His evidence-in-chief was however that he was obliged to start video recording all his interactions with the defendant to protect himself against allegations that he acted aggressively towards her, when he collected the children. Several video recordings were presented as evidence. The videos 10 Her evidence indicates that she, inter alia, considered the children too young to be sleeping away from her and she objected to the disruption of pre-planned schedules. 11 Although there are mutual accusations of physical abuse the evidence lead during the trial indicates only one instance where the defendant grabbed the back of the plaintiff s shirt in an attempt to prevent him from taking the minor child T. to school. This is the only evidence led of an incident in which the plaintiff felt that the defendant physically abused him. The defendant however testified of numerous occasions where she has been bumped, kicked on the shin, and elbowed. From the evidence it is probable that some of these instances of manhandling occurred because the defendant tried to prevent the plaintiff from removing a child from the matrimonial home at whim without prior arrangement. The defendant however also testified of another instance where she was abused where a family member intervened and it was not stated to her during cross-examination that the allegations of continued abuse or manhandling were fabrications on her part.

11 11 do not take the matter any further save to emphasise the extent of the extreme acrimony between the parties and the detrimental effect thereof on the children. 12 [18] It is evident that the parties were, and are, not able to sort out their differences in a civilised manner. Their relationship is extremely acrimonious and there is evidence that this relationship is still deteriorating. The nature and extent of the litigation reflect a sorry state of affairs, particularly for the two children involved, and both the expert witnesses testified that the children are extremely negatively affected by the acrimony and strife. [19] After hearing and observing the parties, I am left with no doubt that since the breakdown of the relationship both parties, to a lesser or greater extent, at times, behaved in an extremely immature and inappropriate manner. Both wanted things to happen their way. [20] However, both the plaintiff and the defendant love their children and neither can reconcile themselves with the idea of not being actively involved in their children s lives. [21] Both parties are convinced that the other party wants to minimise their involvement in the children s lives to the extent of cutting them out completely. During the trial allegations of alienation were made by both the plaintiff and the defendant. Both parties fear that they will not be allowed to play a continued role in the children s lives. 13 [22] I am not convinced that any of the parties can be found to be an unfit parent. None of the evidence presented in this trial supports such a finding. I record this finding because, although counsel for the plaintiff stated in the heads of argument submitted on plaintiff s behalf that the court is respectfully cautioned that the test to be applied in relation to the relocation of the children is NOT: Is there any reason to remove the children from the care of Cathrin (the defendant), it is evident from the allegations made in the summons 12 The recorder of the video would have been in the position to manipulate his or her own conduct because he or she was aware of the fact that an incident was being recorded. 13 I noted both parties fear that the other party would through their contacts be able to prevent the other party to enter Germany or South Africa in future, although neither party placed conclusive evidence of the prospects of this actually happening before me.

12 12 that the defendant s ability and suitability as caregiver were regarded to be contentious aspects. The plaintiff s approach necessitated the leading of evidence by Dr. David Benn, a psychiatrist, on defendant s behalf. [23] The post-divorce contact and care regime needs to be considered against the backdrop of all the evidence led in the case. The perspective provided by the expert witnesses shared opinion, as contained in the joint minute and supplemented by oral evidence, is that: Both children view the plaintiff and the defendant as being an integral part of their lives they recognize that both connect with them, love them, and provide for them. This emotional bond developed between the parents and children as a result of a shared daily life; It could not be determined whether the children are more attached to the plaintiff than to the defendant; Both parties have the capacity to provide for the children s needs; The children need both parents to provide for their emotional, intellectual and physical needs; The children should not be separated from each other; Both the plaintiff and the defendant are equally contributing to the upholding of the dysfunctional dynamics; T. (the eldest child) is emotionally distressed, and he struggles to adapt to new circumstances; The children will experience tremendous loss and possibly, unconscious guilt, being separated from either parent. Burden of proof [24] This court sits as the upper guardian of all minors within its jurisdiction. The discretion that is to be exercised when decisions pertaining to the best interests of children are to be made is unique, and not to be circumscribed in the narrow or strict sense of the word as it is explained in Bezuidenhout v Bezuidenhout 2005 (2) 187 (SCA) para 17. Satchwell J stated in LW v DB 2015 JDR 2617 (GJ) para 5 that the discretion to

13 13 decide whether or not a child can accompany a parent who leaves the jurisdiction of the court, requires no onus in the conventional sense. This approach is in line with the principle set out by the Supreme Court of Appeal in Jackson v Jackson 2002 (2) SA 303 (SCA) para 5 that where the interests of minor children are involved, the litigation amounts to a judicial investigation of what is in their best interests. The court is not bound by the contentions of the parties. That slavish adherence to technical procedural requirements might result in a court not being able to decide an issue in the best interests of a child, has been recognised in the unreported judgment of Matojane J in DJB v MDP case number 30377/2008 decided in 2010 in the North Gauteng High Court, Pretoria, para 12. Here, the court held that the most important consideration in the case is the physical, psychological and emotional well-being of the minor child under the circumstances, and that technical procedural objections might shift the focus and undermine efforts to determine the best interests of the child. 14 [25] This investigation involves an application of law to the facts. This in turn, requires a holistic, case-specific analyses. The court must, in the words of Murphy J in Cunningham v Pretorius, 15 acquire an overall impression and brings a fair mind to the facts set up by the parties. The relevant facts, opinions and circumstances must be assessed in a balanced fashion and the Court must render a finding of mixed fact and opinion, in the final analysis a structured value judgment, about what it considers will be in the best interests of the minor child. [26] It is a pity that the parties in this matter were not guided to solve their disputes in a way other than through adversarial litigation. Since the issue of the summons in May 2016, the conflict between the parties, and the acrimony and animosity have only been fuelled by the legal process. Plaintiff s counsel indicated that there were 9 interlocutory applications since the inception of the action. That is not taking into account the criminal charges brought by and against both parties. The minor children were subjected to at least 6 different assessments by 6 different professionals. (In fairness it must be stated that the 6 th professional was the Family Councillor and it was scheduled on my request). If it is then considered that evidence has been put before the court that the plaintiff s 14 See also inter alia Shawin v Laufer 1968 (4) SA 657 (A) at 662 G- 663C; B v S 1995 (3) SA 571 (A); T v M 1997 (1) SA 54 (A). 15 (31187/08) [2008] ZAGPGC 258 (21 August 2008) para [9].

14 14 account for legal fees and disbursements exceeds R 6 million (and I have no doubt that the defendant s legal account has also reached astronomic proportions), the question arises as to whom are the beneficiaries of this litigation. It is definitely not the children. [27] Murphy J stated in Cunningham v Pretorius, supra, that when disputes affecting children are adjudicated, motion proceedings should normally be regarded as the preferred route. He then stated at p6 of the judgment Furthermore, the points of contention that inevitably arise in applications of this kind tend in the main to concern the inferences which might legitimately be drawn from undisputed facts or are merely disagreements about the construction or interpretation to be placed upon undisputed facts. After listening to 9 witnesses over 14 days I fully agree with the learned judge. [28] Both parties were present in court throughout the trial lasting 14 days. A benefit flowing from listening to oral evidence, was that I was able to observe the parties. I am not making any adverse credibility finding pertaining to any of the witnesses, but I need to comment on the impression that the defendant, as a witness, left with me. I deem this necessary in light of the allegations that the defendant is emotionally unstable and not considering the best interests of the minor children. I would not have been able to form an opinion about her without having the benefit of observing her as a witness, and that would have been detrimental not only herself, but also the minor children. [29] I did not perceive the defendant to be any more anxious as a witness, than I perceived the plaintiff to be. The defendant was definitely emotionally invested in the case, but the only time that her emotions got the better of her was when she testified about the effect of the acrimony between the parties on specifically their eldest son, T.. The defendant s demeanour, particularly under cross-examination, impressed me. She was subjected to extensive and vigorous cross-examination. What is described by Ms. De Wet in her heads of argument as a smug reaction when the defendant stated I actually couldn t wait to give an answer to that before engaging in answering a question put to her, was perceived by me as relief, having regard to the history of the matter to relate her version on the specific occurrence in question. Ms. De Wet further argues that the defendant was evasive and that she rambled on. I am mindful that if a witness does not answer a question to the satisfaction of counsel who put such question this does not

15 15 necessarily warrants the inference that the witness is being evasive. During crossexamination the defendant was on numerous occasions confronted with open-ended questions which invited a detailed explanation. Having regard to her evidence as a whole I do not agree with the submission as put forward by plaintiff s counsel. The best interests of the child [30] The issues of care and contact and relocation after divorce rarely fail to provoke conflicting emotions and are never easily resolved. Analogous to what was stated by Rumpff JA in Shawzin v Laufer 1968 (4) SA 657 (A) 662 G-I, it must be stated that the duty of a court, sitting as upper-guardian of minor children, when it has to resolve a dispute concerning contact, whether in a primary residence or shared residence paradigm, is dealing with a somewhat singular subject in which there is substantially one norm to be applied, namely the best interests of the child. In 1968 Rumpff JA substantiated his view by referring, inter alia, to the fact that an order as to custody and access may be varied at any time by the court for good cause, and the unique procedural regulation of disputes of this nature. Today the Constitution entrenches the child s best interests as of paramount importance in every matter concerning the child. 16 This constitutional principle is repeated in section 9 of the Children s Act. [31] Section 28(2) of the Constitution has been held to create an expansive guarantee and constitute, not only a guiding principle, but also a right. 17 It also provides the standard against which every decision that impacts on a child must be measured. [32] In section 7 of the Children s Act, the legislature provides a list of factors that courts must take into consideration when determining what is in the best interests of the child. [33] This constitutional and legislative standard needs to be determined on a case by case basis taking into account the specific context and facts of the dispute before the Court Section 28(2) of the Constitution, S v M (Centre for Child Law as Amicus Curiae) 2008 (3) SA 232 (CC) para [22].

16 16 [34] In an effort to provide substance to the concept best interests of the child, the question can be asked, why do we, as a society, propose to safeguard the best interests of our children? The preamble of the Children s Act guides towards an answer. The best interests of the child is to be pursued, not only because children constitute a vulnerable group who are entitled to special care and assistance, but because the protection of children s rights leads to a corresponding improvement in the lives of other sections of the community because it is neither desirable nor possible to protect children s rights in isolation from their families and communities and because children must be afforded the necessary protection and assistance to enable them to assume their responsibilities within the community. Children must thus be protected and assisted to facilitate the full and harmonious development of their personalities and to grow up in a family environment and in an atmosphere of happiness, love and understanding. The constitutional right of a child that his or best interests are of paramount importance in every matter concerning the child, will thus be applied in the context of the specific matter at hand. The determination of the best interests of a pregnant minor who is considering the termination of the pregnancy will be substantially different from determining the best interests of a child whose parents are getting divorced when the issues to be determined revolve around care and contact and relocation. In divorce situations and when determining issues of care and contact, courts need to decide what would in the long run most likely facilitate the child s development into a well-balanced individual and responsible adult who will be able to take responsibility for herself or himself and contribute positively to the community. [35] Sachs J provided invaluable guidance when he explained in S v M: 19 A more difficult problem is to establish an appropriate operational thrust for the paramountcy principle. The word 'paramount' is emphatic. Coupled with the far-reaching phrase 'in every matter concerning the child', and taken literally, it would cover virtually all laws and all forms of public action, since very few measures would not have a direct or indirect impact on children, and thereby 18 Minister of Welfare and Population Development v Fitzpatrick and Others 2000 (3) SA 422 (CC) at para [18]; Jackson v Jackson 2002 (2) SA 303 (SCA) 318H. 19 Note 17, supra, para [25].

17 17 concern them. Similarly, a vast range of private actions will have some consequences for children. This cannot mean that the direct or indirect impact of a measure or action on children must in all cases oust or override all other considerations. If the paramountcy principle is spread too thin it risks being transformed from an effective instrument of child protection into an empty rhetorical phrase of weak application, thereby defeating rather than promoting the objective of s 28(2). The problem, then, is how to apply the paramountcy principle in a meaningful way without unduly obliterating other valuable and constitutionally protected interests. [36] In S v M, above, the question revolved around the proper approach that was to be followed where a convicted person, who was also the primary caregiver of minor children, had to be sentenced. The question essentially was whether section 28(2) would preclude the incarceration of the primary caregiver of minor children because such incarceration would impact negatively on the minor children. The Constitutional Court held at paragraph [35]: Thus, it is not the sentencing of the primary caregiver in and of itself that threatens to violate the interests of the children. It is the imposition of the sentence without paying appropriate attention to the need to have special regard for the children's interests that threatens to do so. [37] When this principle is adapted to apply in divorce proceedings where family units are fractured and divided due to the mere nature of the proceedings, it would thus be incorrect to hold that because it is in the best interests of a child to maintain the integrity of family care that the parents are precluded from obtaining a divorce. Divorce by its very nature raptures the unified familial relationship wherein a child finds himself. This is why the legislative principle is set that a divorce may only be granted when a court is satisfied that the arrangements made or contemplated for the welfare of any minor child are satisfactory or the best that can be achieved in the circumstances. 20 It would likewise be incorrect to categorically hold that because it is generally in the best interests of a child to form a physical bond with, and experience the love, affection and care of both parents, 20 S 6(1) of the Divorce Act, 70 of 1979; R and Another v M 2016 (3) SA 417 (GJ) paras [16], [18], [28].

18 18 that a parent who intends to relocate with the children to a different town, or country, is precluded from relocating. Analogous to S v M it can be stated that it is the granting or dismissing of a request to relocate without paying appropriate attention to the need to have special regard to all the affected children s interests in the circumstances of the case, that threatens to violate the interests of each affected child. 21 Section 7 of the Children s Act [38] Since each child s best interests are of paramount importance when the issue of prime residence in the context of possible simultaneous relocation is decided, it is necessary to consider all the factors set out in section 7 of The Children s Act. [39] Section 7 of the Children s Act stipulates - Best interests of child standard. (1) Whenever a provision of this Act requires the best interests of the child standard to be applied, the following factors must be taken into consideration where relevant, namely (a) the nature of the personal relationship between (i) (ii) the child and the parents, or any specific parent; and the child and any other care-giver or person relevant in those circumstances; (b) the attitude of the parents, or any specific parent, towards (i) (ii) the child; and the exercise of parental responsibilities and rights in respect of the child; (c) (d) the capacity of the parents, or any specific parent, or of any other care-giver or person, to provide for the needs of the child, including emotional and intellectual needs; the likely effect on the child of any change in the child s circumstances, including the likely effect on the child of any separation from (i) both or either of the parents; or 21 See also Jooste v Botha 2000 (2) SA 199 (T) 210C-E.

19 19 (ii) any brother or sister or other child, or any other care-giver or person, with whom the child has been living; (e) (f) the practical difficulty and expense of a child having contact with the parents, or any specific parent, and whether that difficulty or expense will substantially affect the child s right to maintain personal relations and direct contact with the parents, or any specific parent, on a regular basis; the need for the child (i) (ii) to remain in the care of his or her parent, family and extended family; and to maintain a connection with his or her family, extended family, culture or tradition; (g) the child s (i) age, maturity and stage of development; (ii) gender; (iii) background; and (iv) any other relevant characteristics of the child; (h) (i) (j) (k) (l) the child s physical and emotional security and his or her intellectual, emotional, social and cultural development; any disability that a child may have; any chronic illness from which a child may suffer; the need for a child to be brought up within a stable family environment and, where this is not possible, in an environment resembling as closely as possible a caring family environment; the need to protect the child from any physical or psychological harm that may be caused by (i) subjecting the child to maltreatment, abuse, neglect, exploitation or degradation or exposing the child to violence or exploitation or other harmful behaviour; or (ii) exposing the child to maltreatment, abuse, degradation, ill-treatment, violence or harmful behaviour towards another person;

20 20 (m) (n) any family violence involving the child or a family member of the child; and which action or decision would avoid or minimise further legal or administrative proceedings in relation to the child. [40] The post-divorce contact and care regime needs to be determined with the best interests of the children at heart within the context that, due to the facts of this case, the children are going to be deprived of the presence of one of their parents irrespective of the order that I make. As stated above, I am not in a position to assume prima facie that the defendant will be able to obtain permission to remain in the country after the expiry of her current visa. As is indicated below, even if it could be accepted that the defendant would as a fact be able to obtain permission to remain in the country, I do not accept that the defendant s decision to relocate is unreasonable or mala fide. Although this is not the only factor that I take into consideration in coming to a decision, the reasonableness and bona fides of the defendant are factors that are taken into consideration when relocation disputes are adjudicated. Relocation [41] It is undisputable that relocation involves the continuing fragmentation of the original family unit with the associated distress of parents and children separated from each other and from familiar environments 22 [42] Boyd 23 and Boshier 24 correctly stated that [r]elocation disputes are the most difficult to adjudicate as they usually involve two competent and committed parents, one with sound reasons for wishing to relocate, the other with equally valid reasons for resisting the application. However, in this regard the words of King J in McCall v McCall 25 are very apt: 22 LW v DM, supra, para [17]. 23 Boyd MT The determinant s of the child s best interests in relocation disputes, 2015, Mini-thesis submitted in partial fulfilment of the requirements for the degree LLM in Children s Rights, University of the Western Cape, Boshier P Have the Judges been missing the point and allowing relocation too readily? (2010) 1.2 Journal of Family Law and Practice, (3) SA 201 (CPD).

21 21 In view of the unremitting enmity between the parties, it is as well to remind them that the Court is determining what is in the best interests of their child. The Court is not adjudicating a dispute between antagonists with conflicting interests in order to resolve their discordance. The Court s concern is for the child. This does not however mean that the parents interests are to be completely disregarded. The best interests of the children might be paramount, but they are not the sole factors to be considered. 26 [43] When relocation disputes are adjudicated within the child s best interests paradigm and the standard set in section 7 of the Children s Act, guidance is provided by principles extracted from other decisions. As Satchwell J stated in LW v DB, supra para [17] It is not difficult to extract guidance from earlier decisions. It is trite that all cases must be decided on their own facts. This renders the principles developed eminently flexible and capable of adaptation to varying circumstances. [44] In deciding this case within the stated constitutional matrix, I rely on the guidance provided by case law while considering all the factors set out in section 7 of the Children s Act. The fact that a specific factor listed in section 7 is not specifically addressed below, does not mean that it has not been considered. I focus the reason for the order that I make on the importance of these factors in light of the facts of this case as supported by the evidence. Trauma [45] Given the acrimony between the parties, common sense dictates (and is supported by the expert evidence) that the children have already been severely traumatised. There is no guarantee that, even if the parties remain in close proximity, the acrimony will subside. On the probabilities the acrimony between the parties will not subside irrespective of the order granted by this court. Fortunately children are resilient. T. and K. are still young and can benefit from therapeutic input. A divorce in itself is traumatic. The court cannot protect the children from all possible future trauma, however, the court can 26 LW v DB, supra, paras [63]-[83].

22 22 minimise the risk by identifying the least detrimental alternative. In the circumstances of this case the children will have to cope with not being with the defendant, or with not being with the plaintiff, and I need to determine which would be the least detrimental and therefore in the best interests of the children in the circumstances. 27 Defendant s motive to relocate [46] It has been stated in numerous cases that the motive of the primary caregiver to relocate is an important factor to be taken into account in determining the best interests of the child in proceedings of this nature. It is similarly important to consider the motive for relocation where the issues of primary residence of minor children and relocation are intertwined. Although a bona fide and reasonable motive in itself is not enough to substantiate relocation, it is an important factor. 28 [46.1] The evidence does not indicate that the defendant s desire to relocate, even if assessed independently from the factual reality that she is not currently permitted to remain in the country post 3 February 2018, is mala fide and unreasonable, or motivated to spite or frustrate the plaintiff s right of access to, and contact with his children. [46.2] The factual reality is that the defendant decided to come to South Africa for the sole purpose of building a life with the plaintiff. Her life in South Africa was completely intertwined with his she was wholly dependent on him for her financial wellbeing due to the fact that her visa prohibits her from working. In South Africa the defendant was introduced to a life of wealth and excess. She knew nobody else in the country and she was received (and according to plaintiff s evidence embraced) by his close-knit extended family. The defendant was afforded the opportunity to keep in contact with her family in Germany by being provided with the opportunity to visit them frequently. [46.3] After the breakdown of the parties marriage, the defendant s relationship with her in-laws slowly started to deteriorate to the extent that both parties evidence undeniably show that the defendant and the plaintiff s family are clearly in two hostile camps. She testified that the acrimony between her and the plaintiff s mother is even 27 Potgieter v Potgieter [2007] JOL (SCA). 28 GCH v GNB (35322/2012) [2012] ZAGPHC 218 para [26]; F v F, supra, para [13]; Jackson v Jackson 2002 (2) SA 303 (SCA) 318F; B v M 2006 (9) BCLR 1034 (W) para [41]; Godbeer v Godbeer 2000 (3) SA 976 WLD 981I-982C The applicant must now fend for herself in the world and must perforce have the freedom to make such choices as she considers best for her and her family.