FAMILY

Facts and issue: The applicant is seeking the immediate return of a minor child, Z, to the court’s jurisdiction within 48 hours of the granting of an order, that the minor child is placed in the applicant’s interim primary care pending the finalisation of the legal proceedings launched in the Randburg Children’s Court, and the Family Advocate’s investigation pursuant thereto, which proceedings have been set down for hearing again. The applicant alleges that the respondent relocated with the child without the applicant’s consent.

Discussion: The respondent informed the applicant that she is considering relocating with Z to Dubai in response to his request for more contact with Z. The applicant did not agree to the relocation. The respondent changed her mind and informed the applicant that she would be relocating to Durban. The applicant did not agree to the relocation. Upon receipt of the recommendations from the parenting co-ordinators, the respondent informed the applicant that she would relocate to Durban whether he liked it or not. The respondent removed Z from Johannesburg in highly questionable circumstances and notwithstanding the pending proceedings in the Randburg Children’s Court, the terms of the divorce order, the incomplete Family Advocate’s investigation, her undertaking that she would not remove Z to Durban until December 2024, and her knowledge and appreciation that she could not relocate with Z in the absence of agreement and/or a court order and thereby acted in a manner in which she creates the distinct impression that she is above the law, not having to follow due process.

Findings: Despite the respondent having had the opportunity prior to her relocation to approach the very court in respect of which there is pending litigation about the very issue of relocation of Z to Durban, she instead chose (unwisely so) to simply relocate. The impression is created that the respondent’s relocation with Z was indeed orchestrated and thereby flies into the face of the divorce order, the recommendations of the parenting co-ordinators and her own undertaking and pending counter application. The respondent cannot be permitted to conduct herself in such manner with impunity and in a reprehensible manner.

Order: The respondent is ordered and directed to return the minor child, Z, to Gauteng within 48 hours of the granting of the order.

Facts and issue: The applicant is a biological son of the respondent, and he is resident in Australia. The respondent is a seventy-year-old female resident is South Africa, Johannesburg. Due to the respondent’s advanced age with no income, the applicant is responsible for supporting her in respect of her general living expenses including paying for her caregiver. The applicant seeks an order to interdict and restrain the respondent from selling, dissipating, encumbering or in any way dealing with her (respondent’s) property.

Discussion: The applicant averred that he has reason to believe that he may be entirely disinherited through a scam, inducement of fraud thereby having to incur additional costs of computing, proving and lodging a claim against the respondent's estate when she passes away. What is concerning regarding the document referred to as the acknowledgment of debt is the fact that there is no information on how the debt is computed and no payment terms are indicated. There is no period within which the debt is payable. A further challenge is that the caveat that the applicant sought to note over the respondent’s property is applicable until the respondent’s death where the property will be distributed amongst her heirs or until the debt is paid in full. It is clear from the averments made by the applicant that the respondent is not a person who has the means to satisfy the debt, hence his support for her upkeep and the payments for her caregiver. An expectation that the respondent will be able to discharge her indebtedness of R600,000 is unrealistic. The acknowledgment of debt does not comply with the requirements and therefore invalid.

Findings: It is not automatic that moneys expended by the applicant for his mother’s living expenses constitutes a debt that can lead to limiting her constitutional right to ownership of property guaranteed in terms of section 25(1) of our Constitution indefinitely until her death. The order seeks to interdict and restrain her from selling, dissipating, encumbering or in any way dealing with her property. Granting this order will be against public policy. The mere fact that the applicant alleges that the respondent could be easily induced to perform such acts that are against her best interest is contrary to the allegations that she enjoys full mental capacity. The court is therefore not persuaded to grant the relief claimed.

Order: The application is dismissed.

Facts and issue: The parties were married to each other in community of property, and the marriage still subsists. The applicant instituted divorce proceedings, and the respondent is defending the action. The court granted relief in Rule 43 proceedings (Rule 43 order). The applicant seeks an order that the respondent be found to be in contempt of the Rule 43 order and the respondent be sentenced to imprisonment for a period to be determined by the court, with or without an option of a fine, suspended on condition that the respondent complies with the order.

Discussion: It is the respondent’s case that the parties entered into settlement negotiations and a formal settlement agreement was prepared and signed by the respondent. This settlement was however never signed by the applicant. The respondent made a payment in the amount of R144,000 towards the applicant. It is the case of the respondent that he was under the impression that this settlement agreement would settle the aspect of maintenance in toto and upon payment of the amount of R144,000 he would have settled all outstanding arrears and will no longer be liable for any further payments. In the respondent’s own words: Mea culpa: “I am in arrears with my obligations and therefore, without any doubt, in contempt of the Rule 43 order.” This correspondence from the respondent is an unequivocal admittance that he is in arrears with his obligations in respect of the maintenance and it wipes out any doubt there can be as to how the respondent interpreted the purpose of the settlement negotiations and his payment of R144,000. The respondent, in his own words, is a contemptuous litigant.

Findings: The court finds that the respondent wilfully and mala fide failed to comply with the Rule 43 order, and he has failed to discharge the burden that was placed on him. The result is that the respondent is guilty of contempt of the Rule 43 order. It would serve no purpose to sentence the respondent to direct imprisonment as that would curtail his ability to earn an income to honour the court order. To impose a fine on top of a committal to imprisonment would serve no purpose as it might negatively impact the respondent’s ability to comply with the Rule 43 order.

Order: The respondent is found to be in contempt of court by his failure to comply with his obligations of the Rule 43 order. The respondent is sentenced to undergo 60 days in imprisonment. The sentence is conditionally suspended.

Facts and issue: The parties were married out of community of property, with the exclusion of the accrual system. The marriage was dissolved by an order of the High Court and a settlement agreement was entered. The respondent provided a property to the applicant in terms of the agreement. Such provision was conditional until the applicant remarried or entered another co-habitation relationship. When the respondent became aware that indeed the applicant entered such a relationship, she was requested to vacate the property. The applicant refused and now seeks to rescind the settlement agreement.

Discussion: The factors placed before court do not reflect that the divorce order that was granted was erroneously sought or erroneously granted. The applicant and the respondent were desirous of obtaining an order for the dissolution of the marriage, and the applicant elected to enter into a settlement agreement, from which she ultimately benefitted. The court was legally competent to grant such order, and the divorce order was not granted because of a mistake. The applicant has not placed any circumstances or instances before the court from which the court can decisively conclude that a deliberate misrepresentation or any undue influence induced the applicant to enter into the settlement agreement. The settlement agreement, in particular, clause 7 thereof is in plain language and does not contain any legal jargon, terminology or legal concepts that call for the interpretation of a specialist or legal expert. The claim by the applicant that had she been legally represented she would not have signed same seems to be a deliberate attempt to allow her to re-negotiate the terms of a divorce which she readily accepted and understood over eight years ago.

Findings: The applicant has failed to show that the settlement agreement and/or the court order in terms of which the settlement agreement was made an order of the court, must be rescinded or varied. In addition, there is nothing to suggest that the court was not competent to grant the order that it did when it incorporated the settlement agreement in the granting of its order. The applicant has failed dismally in placing sufficient concrete, credible and compelling evidence before the court to substantiate her application, despite being ably represented by counsel of her choice.

Order: The application is dismissed.

Facts: The applicant and the respondent were married in 2010, and the marriage still subsists; however, during 2022 the applicant instituted divorce proceedings in the KwaZulu-Natal Division of the High Court, and these have not yet been finalised. The applicant, the respondent, and their minor child lived in Durban until mid-2024. Then the applicant left their shared home in Durban and relocated to Cape Town without informing the respondent, leaving the minor child with the respondent. According to the applicant, she suffered an emotional and mental breakdown and flew to Cape Town to be with her mother and other members of her extended family as she needed support.

Application: The parties cannot agree on how they will share the holidays with the minor child. This is an urgent application in which the applicant seeks an order, pending the finalisation of the relief sought in Part B, that the respondent be compelled to allow the minor child, MC, to travel from Durban to Cape Town and remain in the care of his mother for a certain period. In part B of the application, the applicant seeks an order to transfer the divorce action from KwaZulu-Natal to the Western Cape, as well as relief related to an investigation by the Family Advocate.

Jurisdiction: The applicant's counsel submitted that this court enjoys inherent jurisdiction to hear the matter as the upper guardian of minor children, particularly since there is currently no parenting plan between the parties regulating the question of care and contact. The respondent's counsel submitted that this court (Western Cape High Court) does not have jurisdiction to hear the matter, because the minor child is in Durban, outside the jurisdiction of this court. In considering this application, the minor child's best interests remain the yardstick against which everything must be measured. However, the court does not understand this right to trump a court’s jurisdictional competence or capacity to hear a matter. The court also does not understand this right to be giving a court jurisdiction where Parliament has explicitly excluded such jurisdiction in legislation.

Findings: In the present matter, section 29 of the Children’s Act 38 of 2005 (court proceedings and applications which may be brought before the High Court) serves as an overriding determinant of jurisdiction in circumstances where a court is called upon to extend, suspend or circumscribe a parent's parental rights and responsibilities. This court cannot entertain an application instituted in terms of section 28 (parental responsibilities and rights) in which its jurisdiction is explicitly excluded by section 29 of the Children’s Act in instances where the minor child concerned is not ordinarily resident in its jurisdiction, even if by consent between the parties. This court does not have the jurisdiction to consider granting the relief that will amount to an extension of the applicant's current parental responsibilities and rights, as this application was instituted in this court without the minor child being ordinarily resident in the court's area of jurisdiction.

Order: The applicant’s application is dismissed, and the applicant is ordered to pay costs on Scale A.

LEKHULENI J

Facts and issue: The applicant approaches the court requesting that the respondent be found guilty of contempt of court for failure to pay maintenance for herself timeously, in terms of a court order and for failing to comply with a court order, following a Rule 43 and Rule 43(6) application, respectively. The applicant contends that the respondent has, on various occasions, made late payments in terms of the first court order. The applicant avers that the late payments by the respondent to her is economic abuse and a ‘strong-arm tactic’.

Discussion: There are two existing interim court orders. It is not the applicant’s contention that the respondent failed to comply at all in respect of the first order but that it was not paid on time. He made late payments for the months of December 2023 to June 2024. The payments ranged between 3 to 18 days late. In respect of the second leg of the contempt proceedings, it is contended that the respondent failed to comply with the court order to make payment to the applicant in the amount of R4,000 per month in respect of remuneration for the domestic worker and other related expenses and is in default of payment of approximately R41,000. The respondent avers that he is not withholding payment from the applicant purposefully or intentionally, but he is not earning enough money to comply with the order and must wait for funds from the business to become available so that he can pay the applicant. Whilst it is incumbent of the respondent to comply with the court orders and to apply for a variation of same if need be, it is important to consider the fact that the applicant did make the payments required and with regard to the domestic worker, remedied the situation himself, even though it would have been preferable to approach the court for a variation of same in terms of rule 43(6) of the Uniform Rules of court.

Findings: The respondent filed a detailed affidavit explaining his reasons for the late payments, the offer he made to the applicant for the arrear maintenance for the domestic worker as well as how he had to remedy the situation when the applicant terminated the domestic worker’s services. More especially the respondent pays for storage for the applicant in the amount of R3,200 which is not disputed by the applicant. The respondent makes these payments despite not being an order of court. On the accepted test for fact finding in motion court proceedings, it is impossible to reject the respondent’s version in this case as fictitious or unworthy of credence. The respondent has discharged the evidentiary burden on him. He has established a reasonable doubt that his non-compliance was not wilful and mala fide.

Order: The application is dismissed.

Facts: The deceased was married to the respondent, Ms PN, by civil rights in 2017. It is undisputed that the deceased and the surviving spouse lived under the same roof as husband and wife until the demise of the deceased. In September 2024, the deceased left the matrimonial home to visit a place identified in the papers as Mai-Mai. In due course, the surviving spouse received a call from the friend of the deceased to come to Mai-Mai because the deceased has been shot. Indeed, the deceased was shot and he died because of the bullet wound. Later, the family gathered to arrange the funeral of the deceased. In the family meeting, the surviving spouse mentioned to all present that the deceased had expressed that upon his death he wished to have his body cremated instead of being buried.

Application: An urgent interdict seeking to restraint the holder of burial rights to exercise the preferred method of disposing of the body of her deceased husband. The mother and the minor children of the deceased are opposed to that wish as relayed by the surviving spouse. The mother of the deceased and Ms K, on behalf of the two minor children, prefer the burial method. They contend that the burial method accords with the Zulu customs and culture. The deceased was allegedly a staunch supporter of Zulu customs and traditions.

Discussion: The applicants do not have legally enforceable rights. In a feeble attempt to generate such rights, the applicants seek to rely on two constitutional rights. There is no legal basis to rely on these peripheral rights. None of the rights of the minor children as protected in section 28 of the Constitution are implicated by the choice of the disposal method. Section 30 of the Constitution deals with denial of cultural rights. There are no clear cultural rights demonstrated in this court that the Zulu nation does not cremate. On the contrary, the surviving spouse presented uncontested evidence that in the immediate family of the deceased, three deceased bodies were cremated. The onus rested on the applicants to establish the alleged culture against cremation.

Findings: The surviving spouse takes over the overall responsibility for the body of the deceased. If the surviving spouse decides, as in this case, to dispose of the body of the deceased through the cremation method, there is no basis in law to prevent the surviving spouse from doing so. The applicants have no right to exercise any burial rights. In exercising her rights, the surviving spouse is not acting unlawfully. The argument that the criminal investigations may require exhumation is not only fanciful but it is also preposterous given the undisputed manner in which the deceased died. He was shot and he died as a result of the bullet wound. Why would there be a need to exhume?

Order: The application is dismissed. The applicants are ordered to jointly and severally, the one paying absolving the other, pay the costs of this application on a party and party scale to be taxed or settled at scale B.

MOSHOANA J

Facts and issue: The primary residence of the minor child was awarded to the respondents, pending finalisation of an investigation and report by the office of the Family Advocate and an investigation and report by the psychologist. The respondent correctly contended that the applicants sought to deny her the right to have the child sleep over with her and her new family. They still insisted on an order that the respondent exercise her contact with the child only in Heidelberg, conduct which was apparently facetious and demonstrative of malicious intent. The first applicant acknowledged the acrimonious relationship between himself and the respondent.

Discussion: The first applicant had, through the period until the granting of the divorce order, conceded and accepted that it was in the best interests of the child that her primary residence be awarded to the respondent. Hardly a few days after the order was granted, the first applicant approached the children’s court to have the right of care and contact of the minor child granted to the second and third applicants. The applicants wish to usurp the respondent’s role as mother and primary caregiver of the child without concern for the latter’s best interests. It is also clear that the first applicant wants to control the respondent despite the divorce having been finalised. It is also evident that this application and the applicants’ other attempts at approaching the courts for the same relief constitute a gross abuse of the court processes.

Findings: Their application is not urgent, nor have the applicants presented cogent evidence that they were acting in the best interests of the minor child. What is clear is the acrimony between the parties, which has nothing to do with the advancement of the child’s best interests. The application was devoid of merit and stood to be dismissed.

Order: The application is dismissed.

Facts and issue: Rule 43 Application where the applicant seeks that the court gives effect to the recommendations of the Family Advocate. The applicant further seeks a contribution of R20,000 as against the respondent under Rule 43 for a contribution towards his legal costs. This contribution is sought on a once off basis and as a punitive measure against the respondent. The respondent has also raised a counter claim against the applicant for maintenance for the minor children and a contribution towards her legal costs in the sum of R30,000. There are 3 minor children born of the marriage.

Discussion: The financial position of both parties has not been extensively dealt with, and it is difficult for the court to properly assess the affordability for maintenance. The parties are exceptionally acrimonious towards one another, which is unnecessary and undesirable. What is of concern, is that H (minor child), has been removed from formal attendance at school to memorize the Quran. Whilst this is common in the Muslim community as stated by the respondent in her replying affidavit, it does not give effect to section 7(1)(h) of the Children's Act 38 of 2005, in that H is being denied intellectual and social rights, albeit that her cultural rights are being pursued. It was conceded on behalf of the applicant that he has no difficulty if H is at least enrolled in a registered home-schooling program. Since she has not attended school for many months, and has fallen behind her peers, which would cause her embarrassment were she to return, the parties deem that this is appropriate.

Findings: Regarding the issue of interim maintenance for the minor children, it is clear that there is dire need for same to be awarded. The counter claim on behalf of the respondent appears uncontested owing to various technicalities argued on behalf of the applicant. However, the applicant retains the financial means to provide for some form of maintenance as the historical breadwinner, even on the scant financial disclosure provided by him. It was also argued on behalf of the applicant that he has no difficulty in ensuring that the minor children’s educational needs are met. Punitive costs must ultimately be claimed at the finalisation of the trial proceedings, as Rule 43(1)(b) does not contemplate a punitive costs order in any event.

Order: Pending any further assessment provided for in (d) supra, H is to be enrolled for home schooling at the commencement of the next applicable school term. The applicant is directed to pay the respondent the sum of R3,500 per month per child. The parties’ respective claims for legal contributions are dismissed.

Facts and issue: The plaintiff, EST, sued the defendant, HT, for divorce. The parties entered into a settlement agreement. Ms. Gordon, who appeared for the plaintiff, seeks the grant of a decree of divorce, incorporating the settlement agreement. The settlement agreement appeared to assign almost all the marital estate to EST. Ownership of the marital home was to be given solely to EST. HT was obliged to make a further payment of R4.1 million to EST. HT was also required to move out of the house within 48 hours of my approval of the agreement, taking only a small Suzuki hatchback with them.

Discussion: The apparent inequity in the disposition of EST’s and HT’s marital estate raised the real possibility that the settlement agreement had not been freely struck. HT revealed that the marital estate was much bigger than the settlement agreement suggests. The R4.1 million payment to be made to EST, together with the marital home, in fact represents half the true value of the marital estate, the other half of which HT would retain for themselves. HT submitted supplementary documentation confirming the value of the estate, and that the parties had signed the original settlement agreement voluntarily. The role of a Judge in considering whether to grant an uncontested divorce in which the parties have settled their affairs between themselves is limited. Where there are no minor children involved, the substantive requirements for granting such a divorce will seldom be more onerous than compliance with section 4 of the Divorce Act 70 of 1979 and the production of material sufficient to satisfy the presiding Judge that the settlement agreement was freely and voluntarily concluded in the full knowledge of the parties’ rights.

Findings: Where the marriage involved is one in community of property, the voluntariness of an otherwise properly executed agreement can usually be inferred from an even or close to even division of the marital estate. Accordingly, consensual petitions for divorce ought, in appropriate circumstances, to deal with the division of the marital estate more thoroughly than EST and HT initially did. Where there is an apparent disparity in the division of a marital estate formed in community of property, it should be explained. The additional material the parties supplied demonstrated that the estate is much larger than was disclosed in the papers initially submitted. HT’s additional affidavit reassured the court that the parties had in fact agreed to an even division of the marital estate.

Order: A decree of divorce incorporating the settlement agreement is granted.

Facts: The parties were married to each other in 2018, out of community of property, with the inclusion of the accrual regime in terms of Chapter 1 of the Matrimonial Property Act 88 of 1984. No children are born of their marriage. In 2022, the parties, as purchasers, executed an agreement of sale for a property in Sunningdale for R3,715,000. Both parties signed a home loan application with Standard Bank. The parties took occupation of the Sunningdale property as their marital home. Problems arose in the marital relationship. The parties applied for protection orders against each other and the applicant instituted divorce proceedings.

Application: This opposed application concerns the termination of the parties’ co-ownership of the Sunningdale property under the actio communi dividundo. The applicant has pleaded and proved the necessary elements for that cause of action, namely: co-ownership of the property with the respondent, that he no longer wishes to be co-owner, that the property, which is a residential home, cannot readily be partitioned, and that the parties have not agreed upon the mode of division of the property. The respondent contends that the fate of the Sunningdale property is inextricably intertwined with the issues in the parties’ pending divorce action and resists the relief sought.

Discussion: The applicant is aggrieved that he no longer enjoys the use of the property, yet the respondent does, while he continues to pay the bond and insurance costs. In the present matter the parties’ co-ownership of the Sunningdale property arises from and is constituted as a consequence of their marriage relationship. But for his marriage to the respondent, he would not have shared ownership with her. The Sunningdale property was purchased for and occupied as the parties’ marital home. Independently of the matrimonial property regime chosen by the parties, and as matter of law, a reciprocal duty of support arose between them from the moment of their marriage. A legal relationship exists between the parties, other than the co-ownership itself.

* See paras [38]-[40] for the discussion of Municipal Employees' Pension Fund v Chrisal Investments [2020] ZASCA 116.

Findings: Taking account of the facts of this case, the marriage relationship (despite being out of community of property) renders the parties’ co-ownership of the Sunningdale property as bound co-ownership, and for so long as the parties remain bound to each in marriage – which is their primary “extrinsic relationship” – their co-ownership endures. It can be terminated only when the marriage is dissolved. Even if the court’s finding characterising the parties’ co-ownership (and deferring the termination of the co-ownership) is wrong, it does not follow that it is equitable that the property must be sold as prayed for by the applicant. Where physical division of the property is not possible or is impractical, as in the present matter, the court has a wide equitable discretion to order alternative appropriate relief.

Order: The application is postponed for hearing as a trial in the fourth division simultaneously with the divorce action. The affidavits filed of record in this application shall stand as the parties’ respective pleadings. All directives issued in the case management of the divorce action shall apply equally to the further conduct of the trial of this matter. All questions of costs stand over for later determination.

GORDON-TURNER AJ

Facts: The first and second applicants were married at the branch of the Department of Home Affairs (DHA). After their marriage was solemnized, and in the process of its registration, the first applicant was asked by the DHA official whether she was assuming the second applicant’s surname or retaining hers. When both applicants informed the official that the second applicant would assume the first applicant’s surname, he replied that the system did not allow that. On further inquiry, a second staff member in the department confirmed that the applicant’s request could not be accommodated. The applicants elected to retain their different surnames. The first applicant became aware from a portal related to the registration for National Elections that her surname was unilaterally amended by the DHA to the second applicant’s surname. She had not applied for the change of her surname and had no intention to do so. This amendment affected her FICA and credit records with ABSA Bank. Her FICA documentation was non-compliant and detrimentally affected her home loan status.

Application: The applicant approached the court seeking an order declaring Section 26(1)(a)-(c) of the Births and Deaths Registration Act 51 of 1992 to be unconstitutional to the extent that it discriminates on the ground of gender, by failing to afford a female person the right to have her spouse assume her surname; to afford a male person the right to assume the surname of the woman with whom they conclude a marriage or after having assumed her surname, resume a surname which he bore at any prior time; and further relief.

Discussion: The applicants believe that the failure of the Department of Home Affairs to allow the second applicant to assume the first applicant’s surname and the fourth applicant to assume the third applicant’s surname is the result of the provisions of the Births and Deaths Registration Act 51 of 1992 and the Regulations on the Registration of Births and Deaths, 2014. The applicants contend that the Act and the Regulations perpetuate gender norms set by a patriarchal society that entrenches gender inequality and differentiates based on sex and gender. In contrast, section 9(2) of the Constitution stipulates that the right to equality includes the full and equal enjoyment of all rights and freedoms. Section 9(3) provides explicitly that the State may not unfairly discriminate directly or indirectly against anyone based on, among other things, gender or marital status. Relying on the President of RSA v Hugo 1997 (4) SA 1 (CC), the applicants contended that, at the heart of the prohibition of unfair discrimination, lies a recognition that the purpose of our new constitutional and democratic order is the establishment of a society in which all human beings will be accorded equal dignity and respect, regardless of their membership of particular groups.

Findings: The limitation was not justifiable under the limitation clause. It perpetuates gender inequality and robs individuals of their identity and autonomy. Similarly, by restricting a man's right to assume their wife's surname, the law violates the principles of gender equality and perpetuates harmful stereotypes, as men are denied a choice that is available to women. It fails to recognise modern societal values like gender equality and fluidity in identity choices and reinforces the norm that men must conform to traditional masculine norms. It is intrusive and serves no compelling state interest, in that it requires government involvement in a profoundly personal decision, violating Individual privacy and autonomy. There is no compelling interest in regulating surname changes, and existing legal processes can be amended to manage these changes without the intervention of the Director-General, and the bureaucracy that goes with it. The limitation does not meet the "rational connection" and "proportionality" tests, rendering the limitation unjustifiable.

Order: The applicants have established their entitlement to the relief sought. The relief sought in prayers 1-6 of the notice of motion are granted.

MHLAMBI J