Keshav v Kesnav (13336/04) [2008] ZAGPHC 416; 2008 (5) SA 431 (W) (14 March 2008)

Where satisfactory provision had been made for the welfare of a minor child in terms of section 6 (1) (a) of the Divorce Act 70 of 1979, and no inquiry had yet been instituted by the family advocate in terms of section 4 (1) (a) or 2 (a) of the Mediation of Certain Divorce Matters Act, 24 of 1987, but a request for such an inquiry into access to the child was contemplated, the Court granted the divorce and thereafter requested the inquiry, and in so doing, avoided acting in contravention of section 6 (1) of the Divorce Act.

(WITWATERSRAND LOCAL DIVISION)

REPORTABLE: YES

OF INTEREST TO OTHER JUDGES: YES

DATE: 14/3/08

CASE NO: 13336/04

In the matter between

MAYUREE RAMA KESHAV Plaintiff

and

ANILKUMAR RAMA KESNAV Defendant

JUDGMENT

GOLDSTEIN J:

[1] In this matter the plaintiff seeks a decree of divorce, and I have heard the evidence that the marriage is irretrievably broken down. The matter came before me for the first time on Tuesday of this week in terms of Rule 43 in the motion court on 17 July 2007. The parties have, to their credit and to the credit of their legal representatives, used the opportunity of their being at Court to settle the whole divorce and not only the rule 43. A trial in this matter was due to commence on 18 September. The parties have limited resources and it seems to me that they have acted wisely in settling the divorce. The difficulty that presented itself was the following: The parties have a child who is four years of age. They have been separated, I think, for virtually the whole life of that child. Unfortunately there appears to be a difficulty with the defendant's access to the child, and the question of access will need to be investigated and resolved. However, the child does appear at present to be well cared for.

[2] The child is in the custody of the plaintiff. When the plaintiff works during the day the child is with her mother who, I am informed, is 58 years of age and is in good health, and loves the child, and so the child is well cared for. Ideally, I would have liked in one order to have dissolved this marriage and requested the family advocate to investigate the question of access to the child, but the Divorce Act, 70 of 1979, prevents me from doing so. Section 6 reads as follows in so far as it is relevant:

"(1) A decree of divorce shall not be granted until the court-

is satisfied that the provisions made or contemplated with regard to the welfare of any minor or dependent child of the marriage are satisfactory or are the best that can be effected in the circumstance; and

if an inquiry is instituted by the Family Advocate in terms of section 4 (1) (a) or (2) (a) of the Mediation in Certain Divorce Matters Act, 1987, has considered the report and recommendations referred to in section 4 (1)."

[3] I am satisfied that the requirements of Section 6 (1) (a) have been satisfied because the plaintiff has established that provisions have been made with regard to the welfare of the minor child which are satisfactory. Sections 4 (1) (a) and 4(2) (a) of the Mediation in Certain Divorce matters Act 24 of 1987 ("the Mediation Act") concerned me. Section 4 reads as follows in so far as it is relevant:

"(1) The Family Advocate shall-

after the institution of a divorce action; or after an application has been lodged for the variation, rescission or suspension of an order with regard to the custody or guardianship

of, or access to, a child, made in terms of the Divorce Act...,if so requested by any party to such proceedings or the court concerned, institute an enquiry to enable him to furnish the court at the trial of such action or the hearing of such application with a report and recommendations on any matter concerning the welfare of each minor or dependent child of the marriage concerned or regarding such matter as is referred to him by the court.

(2) A Family Advocate may —

after the institution of a divorce action; or after, an application has been lodged for the variation, rescission or suspension of an order with regard to the custody or guardianship

of, or access to, a child, made in terms of the Divorce Act...,

[4] As a result of my granting a decree of divorce, which I am about to do, and the family advocate not yet having been requested to furnish a report on the access problem, section 4 (1) (a) of the Mediation Act does not apply. Section 4 (2) (a) has not been made applicable by the Family Advocate. It follows what 1 am about to do will not be in contravention of Section 6 (1) of the Divorce Act.

[6] In the result I make the following order:

A decree of divorce. The deed of settlement is made an order of Court except for paragraph 2 thereof.

Thereafter:

The following order was made: The Family Advocate is requested in terms of sections 4 (1) (b) of Act 24 of 1987 to enquire into the question of access to the minor child of the parties and report thereon.

For the plaintiff: K Lavine

Instructed by: Sader Attorneys

For the defendant: M D Saladinho

Instructed by: Dino Rakitzis Attorneys

Date of hearing: 19 July 2007

Date of judgment: 19 July 2007