Molosiwa v Molosiwa (153/03) [2005] ZANWHC 24 (17 March 2005)

IN THE HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

CASE NO: 153\03

In the matter between:

ADELAIDE DEBORAH MOLOSIWA PLAINTIFF

and

DALE MARUPING MOLOSIWA DEFENDANT

J U D G M E N T

LEEUW J:

Background Information

[1] The Plaintiff instituted proceedings against the Defendant for a decree of divorce on the 19 March 2003. The Parties were married in community of property on 3rd April 1987 and three minor boys were born out of the marriage, viz "I" born on 1 May 1985, "I" born on 17 December 1988 and "I" born on 6 October 1990. Both parties presented their evidence. The main bone of contention between the parties is the question of custody of the minor children, maintenance, the appointment of a liquidator and costs.

[2] It is common cause between the two parties hereto that the Plaintiff left the common home during October 2003. The eldest child, "I", stayed with her in the Gauteng Province from that date. The middle child, "I", is at a boarding school in Potchefstroom whilst the youngest child, "I" remained with the Defendant in Mmabatho. According to Plaintiff, she left the common home because the Defendant conducted extramarital relationships with two different women from whom three children were born. The Defendant brought these three extramarital children to the common home which conduct was unacceptable to her.

[3] This became a problem within the family to the extent that the Defendant called a meeting comprising of his mother and her friend, one Ms Mapule Martha Chokoe, who is the Plaintiff’s aunt, as well as the parties hereto. The Defendant informed them that he wished to have his extramarital children introduced to the three boys and be known as members of the family. The Plaintiff reluctantly requested the Defendant to take a paternity test of the said extramarital children and that a maintenance order, if necessary, be obtained through the Magistrates Court. The Defendant was not happy with the Plaintiff’s attitude and the matter was not pursued further after that meeting. Ms Mapule Martha Chokoe , who testified on behalf of the Plaintiff, corroborated her version with regard to the family meeting held and she confirmed the fact that Defendant informed them at the meeting about the children born outside the marriage. She was actually surprised to learn that the Defendant was disputing the fact that a family meeting was held. These allegations were denied by the Defendant. He alleges that it is the Plaintiff who conducts an extramarital relationship with another man.

[4] At the conclusion of the trial, it became abundantly clear from the evidence that the marriage has broken down irretrievably. The question to be resolved is whether the past behaviour of the parties can be used to disqualify them as custodians of the minor children.

The Family Advocate and Psychologist’s Reports

[5] The Family Advocate Mr Mampo and the Family Counsellor Ms Mabote, testified that they interviewed all three children who indicated their desire to stay with the Plaintiff. They further found that the children were well looked after by both parents. They, the Family Advocate and the Family Counsellor recommended that custody of the minor children be awarded to the Plaintiff.

[6] Prof Elsabe Swanepoel, the Psychologist who testified on behalf of the Plaintiff, stated that she interviewed the three children and the Plaintiff, but could not interview the Defendant, who failed to respond to the letters inviting him to be part of the interview session. According to her, the children loved both parents and expressed their wish to stay with them in the same house. She further stated that all three children disapproved of their father’s intention to bring the three extramarital children into their home. This aspect was also mentioned by the Family Advocate and the Family Counsellor. She came to the conclusion that the children have a good relationship with both parents but recommends that custody be granted to the Plaintiff who would be a more suitable custodian for the boys.

Parties’ relationship with the children.

[7] Throughout the evidence, the Defendant was portrayed as a person who provided well for his children in that he is responsible for their tuition fees, medical and other expenses. Plaintiff and Defendant, when they were still staying together, attended the childrens’ school meetings and monitored their school progress jointly. After the separation, the Defendant attended the school meetings alone, because Defendant, who received the notices from the school, neither informed her about the meetings nor their progress at school.

[8] The Plaintiff has been staying with Itumeleng in Gauteng ever since her departure from the common home, and has been fully responsible for his tuition and general upkeep. Ipeleng is attending school in Potchefstroom and the Plaintiff used to collect him from school during school holidays. According to her, it was during that time that she would enquire about Ipeleng’s progress from his tutors. As far as Ikageng is concerned, he has been staying with the Defendant all the time and the Defendant was responsible for his tuition fees and general upkeep, with the assistance of the domestic worker who has been with the family for almost 12 years. According to Plaintiff, Ikageng was to join her in Gauteng during 2004; she had already made arrangements for him to attend school in Gauteng, but these did not materialise because the Defendant refused to release the child in accordance with their agreement. On the other hand, the Defendant alleges that the arrangement was that the child should remain with him in Mmabatho until the completion of his high school career at the International School of South Africa (ISSA).

[9] The Defendant testified that he can provide the necessary emotional and financial support to his three children. According to him, he is a businessman who travels very often; that when he is out on business, his brother takes the responsibility of transporting Ikageng to school. The domestic worker looks after him at home and the child is sometimes left with a family friend.

[10] There is nothing on record to suggest that the Plaintiff is not a good or suitable mother who is incapable of providing the financial and emotional support equally offered by the Defendant. Both parties are in business. The Defendant provided financial support for the children and the Plaintiff as he was the major party responsible for the running of the family businesses and finances. After the separation, the Plaintiff did not receive any maintenance from the Defendant.

Interests of the children: The Law

[11] It is trite law that the interests of the children are paramount when determining custody of minors. Compare Fletcher v Fletcher 1948 (1) SA 130 (A) at 134 Fortune v Fortune 1955 (3) SA 348 (A) at 353 H – 354 L Bailey v Bailey 1979 (3) SA 128 (A) at 135 D – 136 D. Sock v Stock 1981 (3) SA 1280 (A) at 1290 G – H. T v M 1997 (1) SA 54 (A) at 57 H – I and B v S 1995 (3) JA 571 (A) at 584 I – 585 B.

The Constitution of the Republic of South Africa Act No 108 of 1996 entrenches this right in section 28 (2) which provides that “A child’s best interest are of paramount importance in every matter concerning the child ….” Section 28 (3) provides that a “child” means a person under the age of 18 years.

[12] In deciding on the interests of the minor children, I am guided by the long standing principles that were laid down by King J (as he then was) in the case of Mc Call v Mc Call 1994 (3) SA 201 (C) at 204 J – 205 G to the following effect:

“In determining what is in the best interests of the child, the Court must decide which of the parents is better able to promote and ensure his physical, moral, emotional and spiritual welfare. This can be assessed by reference to certain factors or criteria which are set out hereunder, not in order of importance, and also bearing in mind that there is a measure of unavoidable overlapping and that some of the listed criteria may differ only as to nuance. The criteria are the following:

the love, affection and other emotional ties which exist between parent and child and the parent’s compatibility with the child;

the capabilities, character and temperament of the parent and the impact thereof on the child’s needs and desires;

the ability of the parent to communicate with the child and the parent’s insight into, understanding of and sensitivity to the child’s feelings.

The capacity and disposition of the parent to give the child the guidance which he requires;

the ability of the parent to provide for the basic physical needs of the child, the so-called ‘creature comforts’, such as food, clothing, housing and the other material needs-generally speaking, the provision of economic security;

the ability of the parent to provide for the educational well-being and security of the child, both religious and secular;

the ability of the parent to provide for the child’s emotional, psychological, cultural and environmental development;

the mental and physical health and moral fitness of the parent;

the stability or otherwise of the child’s existing environment, having regard to the desirability of maintaining the status quo;

the desirability or otherwise of keeping siblings together;

the child’s preference, if the Court is satisfied that in the particular circumstances the child’s preference should be taken into consideration;

the desirability or otherwise of applying the doctrine of same sex matching, particularly here, whether a boy of 12 (and Rowan is almost 12) should be placed in the custody of his father; and

any other factor which is relevant to the particular case with which the Court is concerned.”

All the abovementioned criteria seem to be present in respect of both the Plaintiff and the Defendant.

Who should be awarded custody?

[13) At the hearing of this matter, I was informed that the circumstances of the children have slightly changed in that the eldest child was now staying with the Defendant and was permanently employed in his business. The second child is still attending at a Boarding School in Potchefstroom and the youngest child is staying with the father, but that he will continue with his schooling at ISSA. The Plaintiff is also relocating to Mmabatho and will be conducting her own business here after the dissolution of the marriage.

[14] In the Defendant’s Counterclaim filed on the 28th May 2003, the Defendant accepted that it was in the best interests of the three minor children that their custody should be awarded to the Plaintiff. After the postponement of the case, the Defendant filed an Amended Plea and Counterclaim wherein he claimed that custody of the minor children be awarded to him. The Plaintiff subsequently filed a Notice of Amendment to her prayers to include the appointment of Alan Herbert Jordaan as liquidator. Reference is made to the fact that “the parties are unable to agree upon the manner in which their joint estate should be divided …..”

[15] The Defendant’s explanation for his change of heart with regard to the custody of the minor children is to the effect that Plaintiff was advised by her attorneys to pursue the appointment of a liquidator so as to be awarded a substantial share of the joint estate. He further stated that he realized that the Plaintiff did not have the childrens’ interests at heart but was rather interested in his money. This factor is irrelevant to the enquiry whether it is in the interests of the children to award custody to the Plaintiff. Mr Mookeletsi on behalf of the Defendant, submitted that the appointment of a liquidator will have an effect on the custody order. I find no substance in such submission.

[16] The Defendant intimated that if their common home were to be sold, he would pay the Plaintiff her share of the house and remain with the children in the common home; failing which, he will be in a position to find suitable alternative accommodation in Mmabatho. Likewise, Plaintiff has indicated that she is in the process of acquiring a house in Mmabatho which will accommodate her and the children comfortably.

[17] I have already alluded to the fact that the circumstances of the Plaintiff and the children Itumeleng and Ikageng have changed. The Defendant had initially acceded that it would be in the best interests of the children if Plaintiff were to be awarded custody of the three minor children, even though at that time Plaintiff was residing in Gauteng. Both parties have been having split custody of the children ever since their separation. Presently, the position is that the Plaintiff, Defendant and the children are staying in Mmabatho albeit not under the same roof.

[18] Mr Mookeletsi submitted that custody should be awarded to the Defendant and urged me to hear the views of the children because they had indicated to the Defendant that they desired to stay with him. I did not deem it necessary to call for the childrens’ evidence in view of the fact that the Defendant had indicated that he will continue to provide for them, (the children) like he used to irrespective of who gets the custody of the children.

In the alternative, Mr Mookeletsi urged me to grant both parties joint custody of the minor children.

Is joint custody appropriate?

[19] In the present case, both parents continued to exercise a more or less equal parenting role; but this role was marred by the communication break down between them. For instance, Itumeleng took employment and decided to stay with the Defendant without the Defendant communicating same to the Plaintiff. Furthermore, Defendant failed to inform the Plaintiff about the childrens’ progress at school, he kept information to himself and expected Plaintiff to make her own enquiry about the childrens’ progress at their different schools.

[20] I have no doubt that both Plaintiff and Defendant are good parents to their three minor children. The fact that they separated did not affect the way the children were provided for. Our Courts have been reluctant to grant joint custody to both parents especially where the divorce has been preceded by “acrimony and disharmony between the parents” Per King AJ (as he then was) in Kastan v Kastan 1985 (3) SA 235 (CPD) at 236 D – F.

[21] In most cases where joint custody was granted, both parties had asked the Court to grant such order and the Court had to determine the suitability thereof having called for or being presented with evidence to that effect: Compare Corris v Corris 1997 (2) SA 930 WLD; Kastan v Kastan supra Krugel v Krugel 2003 (6) SA 220 TPD; Venton v Venton 1993 (1) SA 673 D & CLD.

[22] In the present case parties have not had any meaningful communication with regard to the educational issues and general well being of the three children. The Family Advocate indicated that the parties had agreed between themselves that Plaintiff should be awarded custody of the children but that they could not agree on the division of the joint estate and maintenance. This prompted the Defendant to change his mind about awarding Plaintiff custody of the children. Indeed this attitude can be inferred from the reasons advanced by the Defendant when he gave evidence that the Plaintiff was after his money. It would be wrong to approach a custody dispute on the basis of the amount of maintenance as well as how the joint estate should be divided. The interests of the children are paramount.

[23] The inference to be drawn from the Defendant’s attitude is that if it were not for the dispute with regard to maintenance and the division of the joint estate, he would have readily acceded, as he previously did, to award custody of the children to the Plaintiff.

[24] In the circumstances of this case, I find that the Plaintiff is a suitable parent to be awarded custody of the three minor children and that the Defendant should be allowed to have access to the children which would allow him to maintain the relationship he had with them. After all "I" is almost of age and is employed by the Defendant in his businesses. Ikageng can still have regular contact with the Defendant especially now that the Plaintiff will be resident in Mmabatho. Ipeleng will only be coming home during the school holidays.

On Maintenance

[25] The Defendant testified that he is paying the tuition and boarding fees of all children, including pocket money, clothing, extramural activities and the medical expenses. He is able to pay from the income derived from his businesses. Plaintiff has indicated that she is earning a nett income of approximately R7000-00. I am of the view that if the Defendant were to pay the tuition fees for the three minor children, including boarding fees, then the other financial responsibilities ought to be shared by the two parties. I will not order the Defendant to pay maintenance monthly to the Plaintiff for the minor children.

On Division of the Joint Estate and the Appointment of a Liquidator.

[26] The parties cannot agree on how the joint estate is to be divided. Plaintiff’s Counsel has submitted that attempts were made to come to a settlement but to no avail, and that is why they brought an application for the appointment of a liquidator. On the other hand, the Defendant is not in favour of the appointment of Mr Jordaan as a liquidator, the reason being that it would be costly to the joint estate to appoint a liquidator who is in Pretoria, at the Gauteng Province. The bulk of the parties’ property is in Mmabatho and it would be preferable to appoint a local person. The name of Mr Chris Maritz who is an attorney in Mafikeng, and who has agreed to be the liquidator, was suggested. Mr De Kock asked the Court to appoint Mr Jordaan and Mr Maritz as joint liquidators.

[27] The Defendant has further requested that the parties be given more time to reach a settlement on how the joint estate should be divided, failing which a liquidator may be appointed. The Defendant’s request is not unreasonable and I will accordingly grant an order in those terms. There is no wisdom in appointing two liquidators. I urge both parties to consider the costs which may be occasioned as a result of failure on their part to co-operate with each other with regard to the division of their estate.

Costs

[28] Counsel for Plaintiff has requested the Court to order Defendant to pay the costs of the action inclusive of the expert costs of Professor Swanepoel and Ms Mabote, and further that costs of Plaintiff’s two sets of attorneys from Pretoria and Mmabatho be declared taxable.

[29] I am of the view that this is a proper case to order that the costs should be borne by the estate in view of the fact that the experts’ evidence was to the benefit of both parties and they assisted the Court to come to an equitable decision.

[30] I accordingly make the following order:

The decree of divorce is granted.

Custody of the minor children, "I", "I" and "I" is awarded to the Plaintiff;

The Defendant should have reasonable access to the children.

(d) The Defendant is ordered to pay all tuition and boarding fees including tertiary education for the children "I", "I" and "I" until they reach the age of 21 years or become self-supporting whichever occurs first. Such expenses to include all school related books, uniforms and other requirements.

(e) The Defendant is ordered to pay half of the said minor childrens’ reasonable medical, dental, ophthalmic, pharmaceutical and related expenses, clothing and pocket money;

(f) Division of the joint estate;

(g) That the parties are given a period of three months in which to agree on the division of the joint estate. Failing such agreement, Mr Chris Maritz practising as Attorney Notary Conveyancer and Appraiser in association with Nienaber and Wissing Attorneys, of 6B Dada Complex, Aerodrome Crescent, Mafikeng is hereby appointed as liquidator of the joint estate of the parties to divide the estate of the parties equally between them with the powers and duties on the terms and conditions as contained in Annexure “AMI” of the Pleadings;

(h) That the costs of this action be borne by the joint estate including the costs of the experts Professor Elsabe Swanepoel and Ms B M Mabote; and

(i) Costs of the Plaintiff’s two sets of attorneys from Pretoria and Mmabatho and the Defendant’s attorneys be taxable.

________

M M LEEUW

JUDGE OF THE HIGH COURT

APPEARANCES:

DATE OF HEARING : 8 FEBRUARY 2005

DATE OF JUDGMENT : 17 MARCH 2005

PLAINTIFF’S COUNSEL : ADV H M DE KOCK

DEFENDANT’S COUNSEL : MR S M MOOKELETSI

PLAINTIFF’S ATTORNEYS : SHAPIRO & SHAPIRO INC

c\o ATTORNEY GERT PRETORIUS

DEFENDANT’S ATTORNEYS:

S M MOOKELETSI