Divorce Attorney Cape Town

Hacking a mobile phone until death do us part


You hacked my mobile phone until death do us part

Mobile phone Hacking is a global issue

I suppose privacy is one of an individual’s most sacred rights, but for all practical purposes, the concept of privacy in our digital age is just about gone. In the traditional spy stories, intelligence agencies such as MI5 bug the mobile phone of one or two people. In the last ten years however systems for mass surveillance have become the norm.

According to Wikileaks, intelligence companies such as VASTech (based in South African) are alleged to secretly sell equipment to permanently record the phone calls of entire nations. Other companies record the location of every mobile phone in a city, down to about 50 meters. Systems to infect every Facebook user or smart-phone owner of an entire population group are on the intelligence market, a scary thought.

Paul McCartney, Scarlett Johannsen, Sienna Miller, Jude Law, Mila Kunis, Christina Aguilera, Miley Cyrus and Hugh Grant are just a few high-profile celebrities who’ve had their mobile phones hacked. A host of celebrities have been giving evidence to the Leveson inquiry in the UK about the fact that the media hacked into their private lives. Sir Paul McCartney, the former Beatle believed that journalists from several different newspapers have listened into his phone calls and messages.

The recent hacking scandal at News International dragged down one of the UK’s oldest news outlets, affecting the great and the good, the attention hungry and the deeply private. Yesterday, the former Labour cabinet minister Tessa Jowell accepted a £200,000 settlement from Rupert Murdoch’s News International over the hacking of her phone.

Last week Julian Assange the founder of Wikileaks asked attendees of a press conference in London “Who here has an iPhone?” “Who here has a Blackberry? Who here uses Gmail? Well you are all screwed.

The reality is intelligence contractors are selling right now to countries across the world mass surveillance systems for all of those products.” On an interactive map he showed how 160 security companies across 25 countries developed “spying systems”, and the information is being sold. The companies are said to be peddling these invasive devices, either ignoring or bypassing regulation and “turning a blind eye to dictatorial regimes that abuse human rights.” According to Wikileaks, the industry is worth $5 billion a year.

South Africa

But it is not only some newspapers who allegedly hacked into the communication methods of third parties. Mobile phone hacking software is readily and cheaply available on the internet to members of the public to download for as little as R 1000.00. It is often used, illegally, in divorce cases where a spouse suspects that the other spouse is having an affair.

In what appears to be the first mobile phone hacking probe in a divorce matter in South Africa a South African businessman and former Natal rugby player Dr Graham Hefer, is now at the centre of a criminal investigation over his alleged illegal interception of his estranged wife’s private e-mails, SMSes and BlackBerry messages, or BBMs. According to Hefer’s estranged wife, Hefer allegedly installed Flexispy® software on the phone, according to a report in the Sunday Times during the end of last year.

The hacking was first suspected when his estranged wife filed divorce proceedings against him. Court documents in that case seemed to show that Hefer had access to more than 50 BBMs, over a dozen SMSes and at least five e-mails between his wife and others this year. The case has revealed that the BBM facility, one of the preferred “secure” methods of communication can be hacked with relative ease.

In an affidavit, his estranged wife said she first became suspicious when her husband beat her to filing for divorce in May this year.

She confidentially instructed her attorney to issue summons to begin divorce proceedings. She was shocked when Hefer’s attorney, without having been informed who her legal representative was, faxed a copy of the summons one working day before we issued summons. What astonished her was how his attorney knew who her attorney was. What followed was a systematic pattern of hacking incidents. In the Hefer matter it is alleged that Hefer listened to all the conversations his estranged wife had with her attorney. Conduct such as this is a serious infringement of attorney and client privilege.

In order to hack a mobile phone a hacker must have the phone in his possession to install the software on the phone. Once the software is on the phone every bit of information is known to the hacker. The scary part is that the software is completely undetectable on the phone and mobile banking pin numbers, Facebook and Twitter accounts can all be accessed totally unbeknown to a user. Just think of a scenario where you take your phone to a cell phone repair shop or when you purchase the latest BlackBerry or iPhone from a cellphone shop. Without you knowing about it, the technician or salesperson loads hacking software on your phone and then hacks your bank accounts and personal data. This seems a bit far fetched but not impossible.

What the software can do

The software available can record the key strokes on a Blackberry, iPhone or any other mobile phone and can hold everything a person types, while other technology claims to be able take a picture of an owner sitting at their macbook. Once a mobile phone is hacked, there is absolutely no privacy to its owner and the hacker is able to clone the phone.

Mobile phone hacking software such as Flexispy® and CellSpy® offers call interception and spy call features and all phones can be hacked, whether you have an iPhone or BlackBerry. Call interception lets a hacker specify a series of phone numbers that he wish to listen to. As soon as an incoming or outgoing call from these numbers occurs, a hacker will be notified and are then able to listen to the conversation in real time.

Another feature is the ability to let a hacker listen into the Blackberry surroundings from anywhere in the world by making a phone call to the target Blackberry, it will be silently answered with no indication on the target device. One can eavesdrop in to the phone surroundings from anywhere in the world. The software can also send GPS locations to a secure web account, where you can view and examine locations on a map.

The software also captures all sms, call records and email activity and send it to the hacker’s private web account, and forward it to his email. Through the software you have full control to remotely stop and start the software. You can view all contacts, photos, calendars, reminders, remotely and monitor the phone even if the sim is changed or enable the phones camera to view the phones surroundings. The software is also undetectable on the phone.

The Law

Mobile phone hacking is in contravention of the Regulation of Interseption of Communications and Provision of Communication-Related Information Act No 70 of 2002 (RICA) in South Africa. Section 2 of the RICA Act states that subject to this Act, no person may intentionally intercept or attempt to intercept, or authorise or procure any other person to intercept or attempt to intercept at any place in the Republic, any communication in the course of its occurrence and transmission.

According to section 49(1) any person who intentionally intercepts or attempt to intercept, or authorises or procures any other person to intercept or attempt to intercept at any place in the Republic, any communication in the course of its occurrence or transmission, is guilty of an offence.  In terms of section 51(1) any person who is convicted of an offence referred to in section 49(1) or 54, is liable of a fine not exceeding R2 000 000.00 or imprisonment for a period not exceeding 10 years.

Section 54(1) of RICA states that any person who, intentionally or unlawfully, in any manner modifies, tempers with, alters, reconfigure or interferes with, any telecommunication equipment, including a cellular phone and a sim card, or any part thereof reverse engineer or decompile, disassemble or interferes with the software installed on any telecommunication equipment, including a cellular phone or sim card by the manufacturer or allows any other person to perform any of the acts referred to in that paragraph will also be guilty of an offence.

If you own an iPhone or a Blackberry or for that matter any mobile phone or use Gmail, Yahoo or whatever you are screwed it seems, not to mention those lovely pictures or videos that a hacker can take while controlling your phone from a distance….

Source: http://voices.news24.com/bertus-preller/2011/12/mobile-phone-hacking-in-divorce-cases-in-south-africa/

About the author

Bertus Preller is a Divorce Attorney in Cape Town and has more than 20 years experience in most sectors of the law and 13 years as a practicing attorney. He specializes in Family law and Divorce Law at Abrahams and Gross Attorneys Inc. in Cape Town. Bertus is also the Family Law expert on Health24.com and on the expert panel of Law24.com and is frequently quoted on Family Law issues in newspapers and magazines and also appeared on SABC television on the 3 Talk TV show. His clients include artists, celebrities, sports people and high networth individuals. His areas of expertise are Divorce Law, Family Law, Divorce Mediation, Parenting Plans, Parental Responsibilities and Rights, Custody (care and contact) of children, same sex marriages, unmarried fathers rights, domestic violence matters, international divorce law, digital rights, media law and criminal law.

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Same-Sex partners not in a Civil Union – Do they automatically acquire parental rights to children?


An interesting question that arises in South African family law is whether a woman that was in a same-sex relationship (Lesbian) is able to acquire parental responsibilities and rights to a child that was born as a result of artificial fertilisation from the other partner. Where one party is the biological mother of a minor child born after she was inseminated with the sperm of an unknown donor the situation becomes somewhat problematic when the relationship ends and the other partner attempts to obtain full parental responsibilities and rights in respect of the child as contemplated in s 18(2), (3), (4) and (5) of the Children’s Act 38 of 2005 (“the Children’s Act”), including guardianship.

The problems that arise

Our Children’s Act does not provide an applicant in this position with parental responsibilities and rights automatically.  Such parental responsibilities and rights are, however, granted automatically to the mother who is biologically linked to the child as well as to a father who was married (or even unmarried) to the mother at the time if he is biologically linked to the child.  If the biological mother and father were in a permanent life partnership at the time of the birth of their child, the father will automatically acquire parental rights and duties in respect of his child.  In a scenario of a same sex partnership however, one does not acquire such rights automatically even though the parties was in a permanent life partnership at the time of the birth of the minor child.

Essentially, where the other partner is not biologically linked to her minor child, she must utilise the provisions of ss 23 and 24 of the Children’s Act in order to obtain full parental responsibilities and rights despite the parties’ agreement in this regard or their relationship at the time.

In terms of s 18(2) of the Children’s Act the parental responsibilities and rights that a person may have in respect of a child, include the responsibilities and the rights:

  • to care for the child;
  • to maintain contact with the child;
  • to act as guardian of the child; and
  • to contribute to the maintenance of the child.

There is very little reported case law in respect of ss 23 and 24 of the Children’s Act.  The only reported cases in which reference has been made to these sections are Ex parte Sibisi 2011 (1) SA 192 (KZP) and FS v JJ and Another 2011 (3) SA 126 (SCA).  None of these cases dealt with the following questions:

  • When can a second mother/father in a same sex relationship, who is not biologically linked to a minor child, acquire parental responsibilities and rights and can such rights, include both care and contact?
  • Can such a second mother/father acquire full parental responsibilities and rights or are her/his rights limited to that of contact or care?
  • It is submitted that the test set out in Drummond v Drummond 1979 (1) SA 161 (A) regarding when it can be said that a person is living with another as man and wife on a permanent basis is appropriate to define whether or not the applicant and the respondent were in a permanent relationship. Trengove AJA stated that it denotes ‘the basic components of a marital relationship except for the formality of marriage’ and that ‘the main components of a modus vivendi akin to that of husband and wife are, firstly, living under the same roof, secondly, establishing, maintaining and contributing to a joint household, and thirdly maintaining an intimate relationship … in which sexual intercourse, in the case of parties of moderate age, would usually, but not necessarily always, be an essential concomitant. And, in that context, the phrase “on a permanent basis” connotes, in my view, a continuing relationship, one that is intended by the parties to continue indefinitely without change.’

The legislature has recognised the development of the rights of third parties by introducing ss 23 and 24 of the Children’s Act.  The mechanism for the recognition of the rights of parents whose children are born through artificial insemination.

If a Court should hold that the one partner cannot acquire both care and contact (as well as guardianship) of the minor child the Children’s Act and the Court may be discriminating against such a partner on the basis of gender, marital status and sexual orientation.

The use of the word “or” in s 23(1) does not exclude the awarding of rights of care and contact at the same time.  If that should be its meaning it would compel an applicant to launch more than one application to obtain care of and contact with a child.

The common law had not precluded applications seeking the awarding of care or contact.  It is generally accepted that the Children’s Act has expanded on the common law in that it is the first time that the legislature specifically states that any person with an interest may make such an application.

Subsection 23(4) which provides that the granting of care or contact to a person in terms of s 23 does not affect the parental responsibilities and rights that any other person may have in respect of the same child, does not exclude the granting of more than one parental responsibility and right.

The term “care” does not only refer to primary care.  As a co-holder of the parental responsibilities and rights of contact and care the other partner would be party to decision-making and both she and the mother of the child would have to comply with the provisions of ss 30 and 31 of the Children’s Act.

In addition if both have rights of care and contact the parties could conclude a parenting plan and would be compelled to mediate disputes in accordance with the provisions of the Children’s Act and relevant case law.

A child’s best interests are of paramount importance in every matter concerning the child.

The Law Relating to a child conceived as a result of artificial fertilization

Prior to the Children’s Act artificial fertilization was governed by section 5 of the Children’s Status Act. The provision of section 5 of the Children’s Status Act which treated children as ‘legitimate’ if the birth mother was married but not if she was a partner in a permanent same-sex life partnership was held by the Constitutional Court in J v Director-General, Department of Home Affairs 2003 (5) SA 605 (D) to be unconstitutional. The court found that the impugned provision unjustifiably discriminated against the same-sex life partners on the ground of their sexual orientation. The court cured the unconstitutionality by striking out the word ‘married’ and reading in the phrase ‘or permanent same-sex life partner’.

The  Civil Union  Act  17  of  2006  has  since  come  into  operation. That  Act provides that reference to marriage, husband, wife or spouse in any other law includes ‘civil union’ and ‘civil union partner’. Therefore a child born as a result of artificial fertilisation of one of the parties to a civil union is now treated exactly as a child whose parents are married.

Section 40 of the Children’s Act deal with the rights of children conceived through artificial insemination.  In terms of s 40(1)(a) whenever the gamete or gametes of any person other than a married person or his or her spouse have been used with the consent of both such spouses for the artificial fertilisation of one spouse, any child born of that spouse as a result of such artificial fertilisation must for all purposes be regarded to be the child of those spouses as if the gamete or gametes of those spouses had been used for such artificial fertilisation.

In terms of s 40(3) no right, responsibility, duty or obligation arises between a child born of a woman as a result of artificial fertilisation and any person whose gamete has or gametes have been used for such artificial fertilisation or the blood relations of that person, except when that person is the woman who gave birth to that child or that person was the husband of such woman at the time of such artificial fertilisation.

Thus the Children’s Act has recognised that a non-biological parent can acquire parental responsibilities and rights in certain circumstances without an application to Court.

What is the situation where the parties did not register a Civil Union

In terms of the Children’s Act, a child born as a result of artificial fertilisation of a  partner  in  a  same  sex  life  partnership  is  regarded  as  a  child  born  of unmarried persons. At first glance this appears to be in contradiction of the decision in the case of J v Director-General, Department of Home Affairs.

However, since the Civil Union Act 17 of 2006 came into operation on 1December 2006, it has been possible for same sex partners to enter into a civil union. If they choose not to do so, therefore, they are treated in the same way as unmarried partners.

An unmarried partner of the birth mother of a child conceived  by way of artificial fertilisation does not automatically acquire parental responsibilities and rights. This is so whether the partner is a man or a woman. The unmarried partner can acquire such rights through agreement (in terms of section 22) or via a court order.

It appears that this scheme was always the intention of the legislature. The South African Law Reform Commission (SALRC) Report on the Review of the Child Care Act (which was accompanied by the draft Children’s Bill) specifically discussed whether one partner in a same sex relationship should also automatically acquire parental responsibilities and rights in respect of his or her partner’s biological children. Although at that time Civil Unions by same-sex partners were not permitted under the law, the SALRC recommended that the partner in a domestic relationship can acquire parental responsibilities and rights either by agreement with his or her partner or on application to the court.

Summary

A party in a same-sex relationship, after breakup has no automatic parental responsibilities and rights in terms of sections 19-21 of the Children’s Act. Despite the equality provision of the Constitution, the law treats her differently from a biological father simply because she has no biological link to the child. This may not be unfair discrimination because biology plays a real and important role in the determination of parental responsibilities and rights.

The law also  fails to provide an Applicant with automatic parental responsibilities and rights via section 40, which deals with children conceived by artificial fertilisation. If the couple had entered a civil union, the Applicant would have enjoyed automatic parental responsibilities and rights. Despite the judgment of J v Director-General, Department of Home Affairs this differentiation may not amount to unfair discrimination because subsequent to the Civil Union Act coming into operation the Applicant and the respondent could have entered into a civil union, but did not do so. They are thus treated under section 40 as an unmarried couple, in the same way that a heterosexual unmarried couple is treated.

In relation to both of the abovementioned apparent impediments an approach to interpretation should be utilised that accords with the best interests of the child principle, and is within the power of the High Court as upper guardian of children.

Once  an Applicant  is applying  for a  court  order regarding parental responsibilities and rights, section 29(3) becomes applicable:

  • According to section 29(3) the court hearing an application contemplated in subsection (1) may grant the application unconditionally or on such conditions as it may determine or may refuse the application but an application may be granted only if it is in the best interests of the child.
  • Furthermore, section 29(4) provides that when considering such an application the court must be guided by the principles in chapter 2 of the Children’s Act to the extent that they are relevant.

A court should therefore pay careful consideration to the best interest of the child standard in section 7 – these are the issues that a court must have regard to when making a decision that affects the best interests of the child. Section 9 states that such best interests are of paramount consideration.

Over and above those considerations, the court should also take note of the special circumstances of each case, in particular for instance the fact that the parties planned the conception of the child together.

Only time will tell how our courts will interpret the issue.

My thanks to Advocates Julia Anderssen and Adv Rheta Maass from the Cape Town Advocates Bar for their valuable input.

About the author:

Bertus Preller is a Divorce Attorney in Cape Town and has more than 20 years experience in most sectors of the law and 13 years as a practicing attorney. He specializes in Family law and Divorce Law at Abrahams and Gross Attorneys Inc. in Cape Town. Bertus is also the Family Law expert on Health24.com and on the expert panel of Law24.com and is frequently quoted on Family Law issues in newspapers such as the Sunday Times and Business Times and magazines such as Noseweek, You and Huisgenoot, and also appeared on SABC television on the 3 Talk TV show. His clients include artists, celebrities, sports people and high networth individuals. His areas of expertise are Divorce Law, Family Law, Divorce Mediation, Parenting Plans, Parental Responsibilities and Rights, Custody (care and contact) of children, same sex marriages, unmarried fathers rights, domestic violence matters, international divorce law, digital rights, media law and criminal law.

 

A Court can enforce the implementation of Parenting Plan


In the case of MM v AV 2011 ZAWCHC 425, the mother of a child adopted the stance that she did not wish to co-parent their minor child with the father. In the past however she did facilitate the father’s involvement in the child’’s life to a significant degree since the time of his birth. The court was of the view that it was not open to the mother, in the absence of the father failing to act in the child’s best interests, to simply elect not to co-parent with him. The mother’s primary objection and opposition in this matter was that she could not be ‘forced’ to enter into a parent plan with the father on the basis sought by him. In her affidavit she claimed that she did not like the father and that she did not trust him and that in those circumstances she should not be compelled to co-parent the child with him.

Background

The parties met one night in August 1999. Their son, was conceived that night and the parties’ respective versions of events surrounding the child’s conception were divergent. According to the father he had no recollection of the events of that night due to his state of intoxication and had in fact no recollection of having had sexual intercourse with the mother on that night. He stated that the only proof he had that the parties indeed had sexual intercourse on the night in question is the outcome of paternity tests conducted on the child, which established the father to be the child’s biological father.

The mother stated that she had no recollection of having had sexual intercourse with the father due to her intoxicated and/or drugged state and that she could not have consented to sexual intercourse in the circumstances. Because, so she contended, the father could remember having sexual intercourse with her, he must have been in a position to know that she was not able to consent to sexual intercourse with him: accordingly she stated that she was raped and that the father could therefore not acquire parental rights and responsibilities in respect of the child as contemplated in s 21 of the Children’s Act 38 of 2005 (‘the Children’s Act) as read with the definition of ‘parent’ contained in s 1 of the Children’s Act. The allegation of rape was raised for the first time by the respondent on 1 February 2010 when the child was 9 years old, shortly prior to the father commencing proceedings in court on 12 February 2010 for the recognition and definition of his parental rights and responsibilities in respect of the child.

The Law

Prior to the implementation of the Natural Fathers of Children Born out of Wedlock Act, 86 of 1997 (“the Natural Fathers Act’), such fathers were obliged, in terms of the common law, to apply to the High Court, as upper guardian of all minor children, to be granted rights in respect of a child born out of wedlock. In the event of there being a dispute, the rights to be conferred on such a father and the manner in which these rights were to be exercised were determined by the court. Such an order was essentially a ‘parent plan’ setting out how parental rights were to be exercised.

With the implementation of the Natural Fathers Act, these fathers were afforded, by statute, locus standi to apply for certain rights in respect of their children born out of wedlock. Again, in the event of there not being an agreement with the mother of the child, the court was required to determine which rights should be granted to the father. Similarly, if there was a dispute in respect of the manner in which any of such rights were to be exercised, the court made a determination and gave an order setting out the manner in which such rights were to be implemented; again, a ‘plan’ setting out how parental rights were to be exercised.

Section 21 of the Children’s Act similarly makes provision for parents of children born out of wedlock to agree upon a parent plan. Where the parties are not able to agree either directly or through mediation then either party has the right to approach court in order to determine how their parental rights and responsibilities are to be exercised.

Accordingly, the provisions of s 21 of the Children’s Act are nothing new: they simply serve to ‘codify’ the legal position which previously pertained. What is important to note is that this is entirely consistent with the ‘best interests of the child’ principle enshrined in the Constitution of the Republic of South Africa. Section 28 of the Constitution stipulates that in all matters concerning a child it is the child’s best interests which are paramount and that every child has the right to parental care. In my view those provisions recognise and moreover dictate that a court as upper guardian of all minor children must place the interests of the child and the rights of the child above those of his or her parents.

In matters pertaining to children, Section 28(2) of the Constitution of the Republic of South Africa reads as follows:

‘2. A child’s best interests are of paramount importance in every matter concerning the child.’

The concept that the interests of the child are of paramount consideration is also contained in Article 3(1) of the United Nations Convention on the rights of the child. The convention was adopted unanimously by the general assembly of the United Nations on 20 November 1989. South Africa became a signatory to the convention on 29 January 1993 and it was ratified by South Africa on 16 June 1995.

The ‘best interests of the child’ principle has underpinned both statutory provisions pertaining to children as well as our case law and is retained in the Children’s Act. In fact, the Children’s Act goes further and places significant emphasis on child participation in decisions in respect of their care and wellbeing.

It was stated in Terblanche v Terblanche 1992 (1) SA 502 (W) at 504C-D that the court has ‘extremely wide powers in establishing what is in the best interests of minor or dependent children. It is not bound by procedural strictures or by the limitations of the evidence presented or contentions advanced by the respective parties. It may in fact have recourse to any source of information, of whatever nature, which may be able to assist it in resolving custody and related disputes’.

In September v Karriem 1959 (3) SA 687 (C) at 689A Herbstein, A J P stated:

‘If the Court is of the opinion that it should interfere with the rights of the parents, because the interests of the children demand such interference, it should be at large to act in the manner best fitted to further such interests.’

He stated further ‘It seems to me that the Court as upper guardian should be given as complete a picture of the child and its needs as possible. Nothing of relevance should be excluded. For while certain aspects taken separately might appear to be of no real importance, in combination they might build up a strong case in favour of one or other conclusion.’

In E v S 1995 (3) SA 571 (A) at 581 A, Howie JA referred to Re KD (a minor)(ward: termination of access) [1998] 1 All ER 577 (HL) at 588g-j, and quoted with approval:

‘Parenthood, in most civilised societies, is generally conceived as conferring on parents the exclusive privilege of ordering, within the family, the upbringing of children of tender age, with all that that entails. That is a privilege, which, if interfered with without authority, would be protected by the courts, but it is a privilege circumscribed by many limitations imposed both by the general law and, where the circumstances demand, by the courts or the authorities on whom the Legislature has imposed the duty of supervising the welfare of children and young persons. When the jurisdiction of the court is invoked for the protection of the child the parental privileges do not terminate. They do however, become immediately subservient to the paramount consideration which the court has always in mind, that is to say the welfare of the child.’

And further (in reference to rights of contact), that:

‘Whatever the position of the parent may be as a matter of law, and it matters not whether he or she is described as having a ‘right’ in law or a ‘claim’ by the law of nature or as a matter of common sense, it is perfectly clear that any ‘right’ vested in him or her must yield to the dictates of the welfare of the child.’

In Bobera’s Law of Persons at page 319 footnote 17 it is stated that:

‘It has long been recognised in South Africa that the parental power (or “natural guardianship”) is in fact concerned more with duties and responsibilities of parents than with parents’ rights and powers – the modern emphasis in this regard being on the rights and interests of children rather than parents’.

The law is thus clear: it is the interests of the child which are paramount in all matters concerning a child and the interests of the child take preference over the interests of the parents.

In South Africa, and sadly by virtue of its appalling history of human rights failures and the consequent legacy of social and societal disadvantages, it seems to me that the protection and promotion of the rights of children is all important. When these most vulnerable members of our society are protected by our courts so that they can have, inter alia, proper parental care it will follow (at least in the majority of cases) that as adults they will in turn inculcate the same values in their own children. If we ‘get it right’ with our children we will be making a valuable contribution to our constitutional vision of a society based on human dignity, rights and freedoms.

Cost orders in child matters

It has been held that in disputes relating to children, it may not be appropriate to make a costs order adverse to either party because of the predominant interests of the child involved. King J (as he then was) in McCall v McCall 1994 (3) SA 201 (CPD) at 209B-C stated:

“As I have said, both parents have, in contesting this case, acted in what they believed to be in the best interests of their child. There is no winner and no loser. There are two concerned parents. I intend to make no order as to costs. The effect of this is that each party will bear their own costs.”

In Bethell v Bland & Others 1996 (4) 472 (W) at 475E-I Wunsch J considered that the correct approach would be that generally speaking a successful litigant would be entitled to his or her costs. He states further:

“1.    Generally speaking, a successful litigant is entitled to his or her costs.

2. While it is quite true that a custody dispute should not be seen as an adversarial contest in the ordinary sense but rather as an enquiry into the best interests of the child, it cannot be denied that in most cases the litigants are advancing their own preferences and seeking satisfaction of their love of the child. Often, too, the papers contain many attacks on the character and conduct of the opponents.

3. On the other hand it is also a consideration that a party should not be discouraged from putting up a case which he or she, on broadly reasonable grounds, thinks to be in the interests of the child for fear of having costs awarded against him or her if unsuccessful. By the same token, a party who is, on what turn out to be good grounds, confident that his or her case will prevail, should not be discouraged from taking or resisting actions because of the costs which he or she will incur.

4. However bona fide and concerned a party may be, if his or her opponent’s judgment of the issue prevails, it is not, in the absence of circumstances justifying it, fair that the opponent should be mulcted in his or her own costs.”

In this matter the court did implement a parenting plan and made a cost order against the Respondent mother.

Consent from both Parents needed regarding a change of schools


The case of Nel v Nel [2011] ZAWCHC 113 dealt with the fact that both parents need to consult each other when a child’s school is being changed. In this matter the mother decided to put the children in a new school without consulting the father.

The Applicant and the Respondent was embroiled in divorce proceedings. The parties had 2 children ages 3 and 8 years of age. In terms of a Court Order issued by Desai J, in the Cape High Court on 23 June 2009, the children were primarily resident with the Respondent subject to reasonable contact being afforded to the Applicant as set out in the order.

The eldest child was a learner at Kenridge Primary school in Bellville, after he attended the pre-school at the same school in 2007, Grade R in 2008 and or 2009 and 2010 he attended Grades 1 and Grade 2 respectively. The eldest child was happy at the school and did not have any problems.

The youngest child attended Pixie Daycare in the same area, and would have attended Fledglings Pre-Primary School, adjacent to Kenridge Primary School in 2011.

When the new school year commenced, it came to the notice of the Applicant that the Respondent had without informing or consulting the Applicant, removed the eldest child from Kenridge Primary School and did not enroll the youngest child as agreed with the Applicant at Fledglings Pre-Primary School in Kenridge, Bellville. This was common cause between the parties.

Section 31(1)(a), read with Section 31(b) (iv) of the Children’s Act 38 of 2005 states:

“Major decisions involving child – (1)(a) Before a person holding parental responsibilities and rights in respect of a child takes any decision contemplated in paragraph (b) involving the child, that person must give due consideration to any views and wishes expressed by the child, bearing in mind the child’s age, maturity and stage of development.

(b)    a decision referred to in paragraph (a) is any decision –

(i)    …………………………

(ii)   …………………………

(iii)    ……………………………….

(iv) which is likely to significantly change, or to have an adverse effect on, the child’s living conditions, education, health, personal relations with a parent or family member or, generally, the child’s well-being.”

The Respondent enrolled the children at Islamia College in Rondebosch East. It was also common cause that the Respondent did not advance any reason why she did not inform the Applicant thereof, at that time when this happened.

In later correspondence from her attorneys it emerged that to ease her travelling burden, she took this step. In her Answering Affidavit, she only stated that the children were granted bursaries to attend the new school.

The crisp question was whether, notwithstanding the parental rights of the Applicant, whether the fact that they were removed from one schooling environment to another, was in the best interests of the children.

The Respondent in her papers averred that by moving the children back to their previous schools would not be in their best interests.

It was clear that the actions and conduct of the Respondent was in contravention of the law, and a court will not lightly condone such conduct on the part of a parent, where it is clearly not justified, under the guise that it is in the best interests of the children.

Apart from stating boldly, that by moving the children back to their previous school environment, would not be in their best interest, the Respondent did not give substantial reasons why she believed that it was in their best interests to remove them from Kenridge Primary School or to have the younger child enrolled at Fledgings Pre-Primary School as agreed to with the Applicant.

Both children were at a young age, the older child had been in that school environment since 2007 and the younger child since 2009.

There was clear evidence from the Applicant and the school that the children were happy and content with this environment. The Respondent disturbed the status quo, the onus was on her to show why it would be in the best interests of the children to disturb this and she clearly did not.

There was no objective evidence to suggest that the removal of the children from the one schooling environment to the one the Respondent chose was in their best interests so as to disregard the rights of the Applicant to have been properly informed or consulted about the fact that the Respondent had removed the children from one schooling environment to another.

The court had to deal with the question whether it would have been in the best interests to move the children back to their previous schooling environment.

The court was of the view that having regard to the short time the children had spent at Islamia College and also it being a whole new environment compared to the longer time they had spent at Kenridge which was a known and stable environment to them, there would be a greater harm if they were not moved back to their previous schooling environment.

The court was of the view, that it was dealing with young vulnerable children, and the fact that the school year had basically reached one month, the harm would have been greater to the children had this application not been heard on an urgent basis

The Applicant therefore made out a case why the application should have been heard in terms of Rule 6(12) of the Uniform Rules of Court.

After consideration of the papers and after hearing Counsel for both parties, the following order was made:

The Respondent was ordered to immediately return to and/or re-enroll the minor children B N, born on 7 June 2002 and S N, born on 5 September 2006 at Kenridge Primary School and Fledgings, the pre-school facility at Kenridge respectively by no later than Friday the 18th  of February 2011.

The Family Advocate was directed to urgently investigate what school and aftercare arrangements would be in the best interests of the children, pending the finalization of the parties’ divorce.

Nasty or Nice. What Kind of Divorce Attorney Do You Need?


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Nasty or Nice. What Kind of Divorce Attorney Do You Need?

The answer is … A smart attorney. Smart and nice to you is even better. You want someone who specializes in family law and divorce law. Someone that you feel comfortable telling your life story to. You need someone who listens and respects you and who gives you honest and realistic answers and advice.

Divorce is a traumatic experience. You don’t deserve to be bullied and besides, given the challenges of divorcing, it just might send you over the edge.

Often you hear: “I’m not sure if I have the right attorney because s/he is, well, too nice … and my spouse can be very nasty. I need someone I know will fight hard for me.” There seems to be a misconception, especially in high conflict situations, that it takes a really nasty personality to outsmart the other side and get the job done.

Fact is, the “nasty” approach is what drives up legal bills (on both sides) and it creates so much adversity that co-parenting becomes nearly impossible in future. Furthermore, your attorney’s job is negotiating, for you, with “the other side.” If your attorney can’t even treat you well, chances are s/he doesn’t have the skills and talent a negotiator needs to succeed. Such an attorney is probably more comfortable in an adversarial courtroom setting and that means huge legal bills for you. Keep in mind, the more money you spend fighting the less you will have left to create a new life.

So instead of a surly, imposing human, it’s best to hire a smart, strategic-thinking attorney who can creatively apply the rules of law, and facts of your situation, to help you negotiate a fair settlement. Also keep in mind that attorneys, like doctors, also specialize.

For example, some attorneys like the challenge of a contentious, high conflict divorce whereas others won’t take a case likely to end up in court. There are attorneys known by their peers for expertise in custody matters, or dividing complicated estates, or international law as it affects a foreign born spouse and children. Some attorneys don’t value mediation, so if you plan to mediate be sure to select an attorney whose reputation is pro-mediation.

Family law is complicated therefore it is wise to do your homework before you hire someone. Learn about the legal process, know your finances and figure out what type of attorney expertise you need. Then interview several attorneys with a good reputation for handling your situation and trust your instincts. If you don’t connect with a particular attorney, move on and find someone that’s a better fit.

Fortunately, today many judges and family law attorneys believe going to court should be a last resort. Currently only 5% of all divorce cases end up in court. It’s seen as a very expensive, demoralizing, and risky route to take only after all other options have been exhausted. So the skills that make a good divorce attorney today have changed from the traditional bully to a smart negotiator.

That being said, there still are attorneys who prefer the old-style, adversarial theatrics of court. It brings in big bucks for their law firm sweetening the deal for them, but not you. So buyer beware.

As you move through the tasks of divorcing remind yourself you need and deserve a good return on your legal investment. Sadly, that important fact often gets trampled by the painful emotions and egos that drive divorcing. The style of attorney you (and your spouse) choose sets the tone for your divorce and often the cost. Unfortunately, if one of you chooses an inept or litigious attorney it affects both of you.

Tell yourself, and your soon-to-be ex, that this difficult transition is a small blimp on the road of life. It too shall pass and you each deserve the best start possible to build a new life for yourself and any children you may have. You have more control than you realize.

Article appeared in the Huffington Post

About:

Bertus Preller is a Divorce Attorney in Cape Town and has more than 20 years experience in most sectors of the law and 13 years as a practicing attorney. He specializes in Family law and Divorce Law at Abrahams and Gross Attorneys Inc. in Cape Town. Bertus is also the Family Law expert on Health24.com and on the expert panel of Law24.com and is frequently quoted on Family Law issues in newspapers such as the Sunday Times and Business Times and magazines such as Noseweek, You and Huisgenoot, and also appeared on SABC television on the 3 Talk TV show. His clients include artists, celebrities, sports people and high networth individuals. His areas of expertise are Divorce Law, Family Law, Divorce Mediation, Parenting Plans, Parental Responsibilities and Rights, Custody (care and contact) of children, same sex marriages, unmarried fathers rights, domestic violence matters, international divorce law, digital rights, media law and criminal law.

Relocation of a Child – A court is not bound by the recommendations of the Family Advocate


Relocation of parents with children after divorce

Celimene v Scholtz [2011] ZAGPJHC 170

In a recent matter before the South Gauteng High Court, the mother of a child approached the High court to grant its consent for her to leave the Republic of South Africa after her former spouse and the father of the child refused to grant his consent to remove the child from the Republic of South Africa and to reside permanently in France with the mother and her new husband. The report and recommendations of the Family Advocate and those made by a family counsellor that it would not be in the best interest of the minor child should the court grant the removal was found not to be valid and was disregarded by the court. From this case it is evident that a court is not bound by the recommendations of the Family Advocate.

Parents sometimes consider that it will be in the best interests of themselves, and no doubt the children, that they should live separate lives, thereby anticipating that their lives might take them on different paths. A parent can not be expected to tailor his/her life so as to ensure that the children and their father or mother as the case may be have ready access to one another. That would be quite unrealistic. A parent, after separation must  fend for himself/herself in the world and must perforce have the freedom to make such choices as he/she considers best for him/her and his/her family. Most parents are undoubtedly fully aware of the value to be placed on close contact between the children and their father/mother.

The mother maintained contrary to a report of the Family Advocate that it was in the best interest of the minor child that he should be allowed to relocate to France with her and the rest of the family and that the father’s refusal to grant his consent was unreasonable. The mother conceded that the father has always been considered to be a good father to the child.  She has never felt any need to reduce the child’s contact with the father.

Her reason for relocating to France was firstly that her new husband’s contract in South Africa has come to an end and that her husband wanted to remain in the employment of his company where he had a bright future.

In his opposition to the application the father relied mainly on the report of the Clinical Psychologist and maintained that it would not have been in the best interest of the child that he should be allowed to relocate to France.

His main contentions were that the minor child will be removed from his present stable and secure environment and most importantly would lose the benefit of his close and meaningful relationship with him and the extended family.

The legal principles applicable in relocation cases was eloquently set out by the Supreme Court of Appeal in the matter of Jackson v Jackson 2001 (2) SA 303 (SCA) para [2] at 318E-I where His Lordship Scott JA said the following:

It is trite that in matters of this kind the interests of the children are the first and paramount consideration. It is no doubt true that, generally speaking, where, following a divorce, the custodian parent wishes to emigrate, a Court will not lightly refuse leave for the children to be taken out of the country if the decision of the custodian parent is shown to be bona fide and reasonable. But this is not because of the so-called rights of the custodian parent; it is because, in most cases, even if the access by the non-custodian parent would be materially affected, it would not be in the best interests of the children that the custodian parent be thwarted in his or her endeavour to emigrate in pursuance of a decision reasonably and genuinely taken. Indeed, one can well imagine that in many situations such a refusal would inevitably result in bitterness and frustration which would adversely affect the children. But what must be stressed is that each case must be decided on its own particular facts. No two cases are precisely the same and, while past decisions based on other facts may provide useful guidelines, they do no more than that. By the same token care should be taken not to elevate to rules of law the dicta of Judges made in the context of the peculiar facts and circumstances with which they were concerned.

The parties as well as in the reports of the Clinical Psychologist, the Family Advocate and a Family Counsellor all agreed that the child had a close relationship with both his parents.  The child is also bonded closely with his stepmother and his stepbrother.  According to the Clinical Psychologist the child did not have the same relationship with his stepfather with whom he had to relocate permanently to France.

The only dispute between the parties was what would be in the best interest of the minor child. The mother took the view that it was in the child’s best interests that he be allowed to leave the Republic of South Africa with her whilst on the other hand it is the father’s view that it was not in his interests to leave the country.

The court noted that a dispute of fact does not exist in matters relating to the question what will be in the best interests of the child and that cases like these give rise to anxious considerations and pose the knottiest and most disturbing problems.  See in this matter Godbeer v Godbeer 2000 (3) SA 976 (W) and Ford v Ford [2004] 2 Al l SA 396 (W).  In the as yet unreported case of Maryke Cunningham v Daniel Johannes Jacobus Pretorius Case No. 31187/08 Gauteng North High Court His Lordship Murphy J expressed himself on para [10] thereof as follows:

The letter and spirit of the new framework giving supremacy to the best interest of the minor child, sets a standard which is not proof on a balance of probability.  What is required is that the Court acquires 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.

Section 7 of the Children’s Act sets out factors to be taken into consideration in determining what is in the best interests of the minor child. Not all these factors are always relevant, but what was key in this application was what is set out in section 7(1)(d), (e) and (f) which must be read in conjunction with the opinion expressed by the Clinical Psychologist and the Family Advocate.  I quote hereunder in full section 7(1)(d), (e) and (f):

 Section 7(1):  Whenever a provision of this Act requires the best interest of the child’s standard to be applied, the following factors must be taken into consideration where relevant namely:-

 d)       the likely effect 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

 (ii)          any brother or sister or other child, or any other care-giver or person with whom the child has been living;

 e)       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;

 f)         the need for the child –

(i)         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.

A Clinical Psychologist was instructed to assess the minor child, his mother and his father the with a view to recommending what would be in his best interest with regard to the mother’s desire to relocate to Paris in France.

In carrying out the mandate the Clinical Psychologist obtained information through interviews, clinical observations as well as various psycho-diagnostic tests in which the child and his parents participated.

The psycho-diagnostic tests employed were the following:

 The Draw-A-Person Test

This projective test is used to obtain necessary information regarding self-image, personality functioning and developmental information with children.

Kinetic Family Drawing Test

This test is designed to assess the child’s perception of the relationships and dynamics in his/her nucleur family.

Bere Anthony Family Relations Questionnaire

This assessment tool is extremely effective in measuring a child’s emotional response to his/her family, the words for which may be difficult to express.

The Tree Test

The tree is a projective test.  It is based on the assumption that the tree form with its symmetrical construction around a central axis can be used to interpret the projection of psychic content.  As a non-threatening test and easy for children, it adds to the battery that is designed to describe the personality.

The Personality Assessment Inventory

It is a self-administered objective inventory of personality designed to provide information on critical clinical variables.

The Minnesota Multiphasic Personality Inventory-2

It is a broadband test designed to assess a number of the major patterns of personality and emotional disorders.  It is a self-administered objective inventory designed to provide objective scores and profiles determined from well-documented norms.

 The Clinical Multiaxal Inventory-III

It is a self-administered inventory designed to profile the respondent along certain scales that include basic personality styles, pathological personality syndromes and symptom disorders.

The child was not questioned by the Clinical Psychologist about the proposed relocation to France.  However, the following conclusions were drawn from the opinion of the psychologist based on the abovementioned tests are of importance. They were:

  • How the child experiences his mother the applicant as his primary care-giver.
  •  The child was equally bonded to both his parents despite the difference in the nurturing responses.
  •  Although he has a bonded relationship with his stepmother and a dilute relationship with his stepfather when compared to other adult relationships there is nothing unhealthy in that relationship.
  •  He experiences all adult relationships in his life as safe and secure.
  •  His relationship with his younger half-brother is a positive and healthy relationship.  He does not evidence any jealousy or sibling rivalry.

The child has internalised that he had two families and that he can happily reside within each.

  •  The mother has evidenced good parenting decisions in that she has facilitated good contact between the child and his father and has worked constructively and positively with the fact that the child has two sets of parents and two home bases.
  •  There is no historical evidence of malice or interference in the manner in which she has worked with the respondent as the parents of the child.
  •  Both the mother and the father responded to all assessments tools with a positive test taking set.  They both evidenced no clinical pathology that would preclude them from performing their parental roles.
  •   The father’s reticence and opposition to the child’s proposed relocation is bona fide, appropriate and understandable given the nature of his relationship with his son.
  •  There are no negative findings on both step-parents that could preclude them from playing a meaningful role in the upbringing of the child.

In support of his opposition to the application the father said that the child had an extended family in the Republic of South Africa with whom he has and maintains a close relationship and is exposed to them on a regular basis.

The child on relocation would have to learn a new language being French.  There was evidence that he had already commenced doing so whilst in South Africa.  The mother enrolled him at a French school in Johannesburg. The father promoted the aspect of a new language as an obstacle to the child’s development. The court did not agree with the father’s contention.

THE BEST INTEREST OF THE MINOR CHILD

In determining what is in the best interest of the minor child a Court must decide which of the parents is better able to promote and ensure the child’s moral, physical emotional welfare whether it is in South Africa or in France.

Section 7(1)(a)(i) and (ii) of the Children’s Act refers to the personal relationships between the child and the parents or any specific parent and the child and any other care-giver or person relevant in those circumstances.  The personal relationship between the child and his parents were excellent.  This was confirmed by the clinical psychologist as well as in the interview report of the child by the Family Advocate when he said the following:

It appears as if the parties are the significant people in the child’s life.  It appears as if he looks for comfort from both parties if he is in distress.

There was no adverse report about the personal relationship that the child had with his stepfather and his stepmother.  The fact that the relationship was not on the same level was explainable by the fact that his stepmother has known the child for a longer period than the stepfather.

Section 7(b)(i) and (ii) refers to the attitude of the parents or any specific parent towards the child and the exercise of parental responsibilities and rights in respect of the child:

  •  As regards this standard requirement both sets of parents exhibited a good attitude towards the child.  The mother has not only been the primary care-giver and provider for the minor child since his birth.  The stepfather has taken special interest in the child and teached him the French language.
  •  In the report of the Family Advocate it was reported that the father confirmed that the child was happy at his new French school.  

The court regarded Section 7(1)(d)(i) and (ii) most important and crucial for a decision in this matter.  In this section an enquiry is undertaken regarding 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 both or either of the parents or any brother or sister or other child or any care-giver with whom the child has been living.

Section 7(1)(f) deals with the need of the child to remain in the care of his or her parent’s family and extended family and to maintain a connection with his or her family, extended family, culture or tradition. The mother has always been the primary care-giver of the child.  The father admitted and conceded this and has in no way said that the mother was incapable of carrying out her duties as the child’s primary care-giver.  It therefore did not matter whether she was the primary care-giver in South Africa or in France.  Her ability to at all times act in the best interest of the minor child was unquestionable.  The mother said that the father and the child had a close relationship and spoke to one another telephonically. The father argued about the loss of contact with his and the mother’s extended family in South Africa if the child relocated to France.  The clinical psychologist says that the child would lose the input of his extended paternal family who have become his friends (cousins) and the connection that this relationship offers. He has become used to this resource and would not immediately or necessarily over time replace this source.

Besides contact with the extended family it was not been demonstrated by the father how it will be in the best interest of the child that he should stay in South Africa in order to maintain contact with his cousins.  There was no evidence that the cousins spent extended periods with each other in contrast it seems as if this is limited to weekends or holiday visits by the families.  The loss of this contact was unlikely to negatively affect the child.

The welfare of any child is best served if that child has the good fortune to live with both parents in a loving and united family. In this case that was not to be.  The mother and the father broke up in 2006 and they considered that to be in the best interests of themselves to live separate lives.  They did not at that stage anticipate or foresee that their separate lives might take them on different paths. The move to France was bona fide.

The steps that the mother took leading up to the application had shown that there was no malice.  She had taken the decision in the best interest of the child and her family and her undertaking did not to estrange the child from the father and could not be doubted in view of her past record.

The mother demonstrated that it would be in the best interest of the minor child to relocate with her rather than let him stay in South Africa with the father.

The interests of the child are paramount in all matters relating to children.  It is the ultimate determinant.  Section 28(2) of the Constitution of the Republic of South Africa Act 108 of 1996 reads as follows:

A child’s best interests are of paramount importance in every matter concerning the child.

In the matter of J & J 2008 (6) SA 30 (C) it was decided that a court as the upper guardian of minors are empowered and under a duty to consider and evaluate all relevant facts placed before it with a view to deciding the issue which is of paramount importance the best interest of the minor child.

In Terblanche v Terblanche 1992 (1) SA 501 (W) at p 504C-D His Lordship Van Zyl J said the following:

From this it follows that, when a Court sits as upper-guardian in a custody matter, it has extremely wide powers in establishing what is in the best interests of minor or dependent children. It is not bound by procedural strictures or by the limitations of the evidence presented or contentions advanced by the respective parties. It may in fact have recourse to any source of information, of whatever nature, which may be able to assist it in resolving custody and related disputes.

In the matter of Maryke Cunningham (born Ferreira) v Daniel Johannes Jacobus Pretorius (unreported GNP Case No. 31187/08) Murphy J concluded as follows in respect of the loss of contract by the non-custodian parent:

Perhaps the most vexing of the issues in balancing all relevant factors is the practical difficulty and expense involved in B having contact with the respondent if he relocates and the substantial impact it is likely to have on B’s right to maintain a meaningful personal relationship with his biological father – Section 7(1)(e).  In the modern world, marked by globalisation and increased mobility, when marriages break up, one parent’s interests invariably will have to yield to those of the other.  When the balance of factors (in this case the age of the child, the bond, the favourable environment and opportunities available at the place of relocation and the custodian parent capacity) all favour the custodian parent, the best the court can do is to ensure that meaningful contact and access continues with the non-custodian parent albeit in a less satisfactory manner and will not be thwarted by the non-custodian parent.

The Clinical Psychologist notwithstanding the fact that she had done extensive tests and consultation with all the stakeholders in this matter concluded that a firm recommendation was extremely difficult as this is indeed a difficult matter and left the decision to the Court.  On the other hand the Family Advocate and the Family Counsellor reached a conclusion that the child should remain with the father in South Africa if the applicant relocates to Paris.

The recommendation by the Family Advocate and Counsellor was rejected as it was wanting and unconvincing.  A Court must and has decided the issue of the best interest of the child itself and is free to reject any contrary opinion on that question expressed by any expert.

It is so that the removal will undoubtedly cause some disruption to the relationship between the child and his father.  As a result of the relocation his rights of contact will be drastically curtailed and the child will be deprived of the advantage of being in close contact with his father during his early boyhood stage leading up to adolescence.

No court can predict the future with certainty. The Honourable Nugent J as he then was expressed the following in the matter of Godbeer v Godbeer 2000 (3) SA 976 at p 981J:

The respondent and the applicant considered that it was in the best interests of themselves, and no doubt the children, that they should live separate lives, thereby anticipating that their lives might take them on different paths. I do not think the applicant can be expected to tailor her life so as to ensure that the children and their father have ready access to one another. That would be quite unrealistic. 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. She is undoubtedly fully aware of the value to be placed on close contact between the children and their father and I think that is borne out by the nature of the access arrangements which have existed until now and the ease with which they have been exercised.

The passage referred to above was in the court’s mind appropriate in many respects with the facts.  The application succeeded.

Appointing a receiver or liquidator in divorce – where the spouse can’t agree how to divide their estate


In a marriage in community of property it often happens that the parties can’t agree on a division of the joint estate. In matters such as these a Receiver or Liquidator needs to be appointed to divide the estate in a fair and just manner. In the case of Estate Sayle v Commissioner for Inland Revenue 1945 AD 388 the court held that a marriage in community of property means that the spouses become joint owners in undivided half shares of the assets they possess at the time of their marriage as well as of all assets acquired by them during the subsistence of their marriage. The merging of the properties takes place automatically by virtue of the parties being married in community of property.

The community of property continues for the duration of the marriage and only terminates, by either a decree of divorce or the death of one of one of the spouses. On termination of the marriage by death, the surviving spouse will acquire a half share of the joint estate, because he/she owns it, and not through inheritance. Where the marriage is dissolved by a decree of divorce, the parties may agree on a division of the joint estate, in which event a settlement agreement may be drafted to be incorporated in the decree of divorce and made an order of court.

In many instances the parties do not reach an agreement on how to divide their joint estate. In those instances our courts have allowed for the appointment of a receiver or liquidator to realise and divide the matrimonial assets. When two persons are married in community of property a universal partnership in all goods is established between them. When a court grants a decree of divorce that universal partnership ceases. The question then arises, who is to administer what was originally the joint property, in respect of which both spouses continue to have rights? As a general rule there is no practical difficulty, because the parties agree upon a division of the estate. But where they do not agree the duty devolves upon the court to divide the estate, and the court has the power to appoint some person to effect the division on its behalf. Under the general powers which the court has to appoint curators it may nominate and empower someone (whether he is called liquidator, receiver, or curator – perhaps curator is the better word) to collect, realise, and divide the estate.

The appointment of a receiver or liquidator is designed to protect the ownership rights of both spouses when they cannot agree on a suitable division.

A marriage in community of property creates what is called ‘tied’ co-ownership, where the rights of spouses are not only undivided but are also indivisible, as opposed to ‘free’ co-ownership, with freely disposable shares and the possibility of demanding a division at any time since each co-owned share is viewed as separate property. Holding that a spouse in a ‘tied’ co-ownership does not have an automatic right to the appointment of a receiver and liquidator leaves that spouse without a remedy.

There have been instances where courts have allowed the appointment of a receiver or liquidator where parties have agreed to this in advance. In the case of Revill v Revill 1969 (1) CPD 325 at 326C-D Van Zyl J held: ‘In my opinion … the applicant is entitled to move this court for the appointment of a receiver, unless the respondent agrees with the applicant in regard to the appointment of a receiver.’ Van Zyl J also stated at 326 E-F that:

‘The true position is that no man can be a judge in his own cause. In other words, neither party can take upon himself or herself the right to divide the joint estate. In fact, no party in any form of community is entitled to divide the common property and the other party be forced to accept that position. Once either of the parties has no faith in the bona fides of the other party, he is entitled to demand the appointment of a receiver.’

It therefore follows that if parties can agree on the appointment of a receiver in advance where they foresee difficulties in dividing the joint estate, and courts give effect to that, it cannot then be said that, in the absence of an agreement providing for the appointment of a receiver, trying to appoint a receiver at a later stage is a drastic measure.

The ideal situation is for the parties to agree on the division of the joint estate and the legislature, through the enactment of s 7(1) of the Divorce Act 70 of 1979, encourages parties to divide their joint estate by agreement. Section 7(1) provides a statutory mechanism in terms of which written settlement agreements are recognised by the courts. The relevant part of the section provides that ‘a court granting a decree of divorce may in accordance with a written agreement between the parties make an order with regard to the division of the assets of the parties’.

The written agreement in s 7(1) may provide for the appointment of a receiver and liquidator, the identity of such liquidator and the powers of such a liquidator. This means that divorcing spouses may agree in advance to the appointment of a receiver and liquidator. In the case of Van Onselen NO v Kgengwenyane 1997 (2) SA 423 (B) the parties, in their settlement agreement, which was made an order of court, had agreed in advance on the appointment of a receiver and liquidator to be nominated by them to sell a property.

The above are reasons in support of the argument that the appointment of a receiver and liquidator is a legal entitlement and courts should not have a discretion to withhold such an appointment where it is justified, as in the case of an order for forfeiture of benefits.

South African courts tend to apply in matrimonial affairs the principles applicable to the appointment of receivers and liquidators to divide assets of commercial partnerships (see the Van Onselen case at 428B).

Although there are similarities in the joint ownership of assets in commercial partnerships and marriages in community of property, the two are not the same and a crucial difference lies in the ‘free’ co-ownership of commercial partnerships and ‘tied’ co-ownership of marriages in community of property as set out above. Another stark difference is that it is settled law in commercial partnerships that, in the absence of any agreement between the partners on dissolution of the partnership, each partner gets a proportionate share of the assets according to his contribution (see Schrepfer v Ponelat (WCC) (unreported case no 17318/09, 26-8-2010) (Moosa J) at para 33).

In commercial partnerships partners will only get equal shares where their contributions were equal or where it is impossible to determine with certainty their exact contributions (see Isaacs v Isaacs 1949 (1) SA 952 (C) at 961). This does not apply in the dissolution by divorce of a marriage in community of property. In Engelbrecht v Engelbrecht 1989 (1) SA 597 (K) the position was stated as follows in the headnote:

‘Joint ownership of another party’s property is a right which each of the spouses acquires on concluding a marriage in community of property. Unless the parties (either before or during the marriage) make precisely equal contributions the one that contributed less shall on dissolution of the marriage be benefited above the other if forfeiture is not ordered. This is the inevitable consequence of the parties’ matrimonial property regime.’

In the absence of a forfeiture order, divorcing spouses will get equal shares irrespective of their contributions. HR Hahlo in The South African Law of Husband and Wife 5ed (Cape Town: Juta & Co 1985) at 157-158 states:

‘Community of property is a universal economic partnership of the spouses. All their assets and liabilities are merged in a joint estate, in which both spouses, irrespective of the value of their financial contributions, hold equal shares.’

This differentiation between these partnerships is of importance because for commercial partnerships our courts have held that they are not obliged to appoint a receiver and liquidator, and the same principles have been applied to the appointment of receivers and liquidators in matrimonial affairs. I submit that if principles developed to divide joint assets of commercial partnerships are to be employed in the division of matrimonial assets, then those principles must be tweaked and changed to the extent necessary to fit the circumstances of matrimonial assets.

The court in the case of Robson v Theron 1978 (1) SA 841 (A) at 855C held that a court has a wide equitable discretion in making a division of the joint estate, having regard, inter alia, to the particular circumstances, what is most advantageous to the co-owners and what they prefer. Two decisions in the KwaZulu-Natal division have held that courts are not obliged to appoint a receiver and liquidator. In Moosa NO and Others v Akoo and Others [2008] 1 All SA 585 (N) at 591G Msimang J held that:

‘… upon dissolution of a partnership, the court is not obliged to appoint a liquidator to realise the partnership assets, that no party is entitled to such an appointment and that the court has a wide equitable discretion on the issue … .’

Tshabalala JP in Bushnell v Robert (KZD) (unreported case no 6482/08, 9-9-2008) (Tshabalala JP) at 13 held that ‘whilst it is correct that a court is not obliged to appoint a liquidator upon dissolution of a partnership, the court has a discretion to appoint a liquidator’. In exercising its discretion to appoint a liquidator a court will obviously look at various factors including the fact that the parties cannot agree and the size of the joint estate.

Other cases on this aspect suggest that there are at least two considerations to take into account. One, that where parties cannot agree on how to divide the joint estate, or where they no longer trust each other as often happens in divorces, then either one or both of them may approach the courts for the appointment of a receiver and liquidator. In Botha NO v Deetlefs and Another 2008 (3) SA 419 (N), for example, Koen J held at para 15 that:

‘Upon termination and in the absence of agreement, a receiver should in the ordinary course and in the absence of agreement as to how the dissolution of the partnership is to be achieved, be appointed to collect all assets, discharge debts and generally liquidate the partnership.’

Two, the joint estate itself must not be of so trivial a nature or value that it does not justify the appointment of a receiver and liquidator. In the case of Schoeman v Rokeby Farming Co (Pty) Ltd 1972 (4) SA 201 (N) at 206D-G the court, in deciding whether or not the size of the joint estate justified the appointment of a receiver and liquidator, held that:

‘[The plaintiff] could claim the appointment of a liquidator … . In this case, however, there does not seem to be any practical purpose in doing so. … There are no difficulties with regard to capital contributions and it is simply a question of determining the expenses that have been incurred in the farming operations. … The farming activities do not appear to have been particularly complex nor to have extended over a long period. In fact the partnership has been of a very restricted nature. In these circumstances, it appears to me to be unnecessary to go through the formality of having a liquidator appointed … .’

The nature, value and size of the joint estate were also factors considered in the Moosa NO case: ‘Clearly, the partnership activities in casu are much more extensive and have been transacted over a period of approximately five years’ (at 591F). In the Robson case the business involved a partnership of veterinary surgeons and the joint estate to be divided was the goodwill of the partnership. In opting not to appoint a receiver and liquidator, the court at 858F-G reasoned that:

‘The practical and equitable solution in the circumstances, according to the substantive principles of law governing the actio pro socio or the utilis actio communi dividundo, is for the court to place arbitrio judicis a valuation on the goodwill with due regard to the particular circumstances concerning its value at the date of dissolution of the partnership and to order Dr Robson to pay Dr Theron one half thereof.’

Notwithstanding the above, Tshabalala JP in the Bushnell case held at para 13 that: ‘Therefore, as one can see from the abovementioned cases, there can be no general rule as to when a receiver/liquidator is appointed, each case should be judged according to its facts.’

Although parties should be encouraged to settle on an amicable division of their joint estate, where this is not possible the appointment of a receiver and liquidator should be recognised as a right they have where the circumstances of the joint estate permit such an appointment. If a court declines such an appointment, this not only leaves the parties without a remedy but may also force them to try to renegotiate, which may force a spouse in a weaker position to accept an unfair settlement in order to bring the proceedings to an end. The only solution if the court declines the appointment of a receiver and liquidator for fear that the appointment will burden the joint estate, is that the court itself must divide the estate. Existing case law suggests that courts have this power.

De Rebus

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