Stock v Stock

• Jurisdiction: South Africa
• Judge: Jansen JA, Diemont JA and Cillié JA
• Judgment Date: 29 May 1981
• Hearing Date: 18 May 1981
• Court: Appellate Division

Diemont JA:

This is a worrying case, as are all cases in which the care and custody of children is in dispute. It concerns the future of two boys A and two girls whose parents have been divorced. The mother, who has the custody of the children, wishes to leave South Africa and go and live in France. The father objects. The Court, as the upperguardian of the minors, must resolve the problem.

When the parties were divorced on 21 March 1979 they entered into a consent paper which was made an order of Court. This document, to which I shall refer in more detail, provides that:

"(b)

B Plaintiff may not remove the children from the Republic of South Africa without an order of Court granting her the right to do so."

On 19 September 1979, the attorneys who had been acting for Mrs Stock, now the respondent, wrote to appellant's attorneys advising them:

"... that at all times material our client had considered the C advisability of returning to France where her entire family is, together with the children born of the former marriage between the parties."

Appellant was advised that if he failed to agree within seven days to the children being removed permanently from the Republic of South Africa an D appropriate Court order would be sought. On 5 November 1979, Mrs Stock applied to Court on notice of motion for the following orders:

"(b)

Directing that applicant may, notwithstanding the terms and provisions of para 1 (b) of the consent paper incorporated in the final order of divorce granted on 21 March 1979, under case E No 11343/1978, remove the four minor children born of the former marriage between herself and respondent permanently from the Republic of South Africa, so as to enable her to take up residence in France.

(b)

Authorising and empowering Abe Swersky & Associates to release to applicant the passports of the four minor children born of the former marriage between applicant and respondent, so as to F enable the aforementioned four minor children to accompany applicant to France.

(c)

Granting applicant such further and alternative relief as to this honourable Court may seem meet and proper.

(d)

Directing respondent to bear the costs of this application."

Lengthy affidavits with voluminous supporting documents (totalling some G 400 pages) were filed and a year later, in October 1980, the Court referred the matter to trial.

A protracted trial followed; many issues were canvassed, not all of which were relevant. The trial Judge was faced with a record of some 1 600 pages and, on 25 February 1981, he delivered an ex tempore judgment in H which he authorised the applicant to remove the four minor children permanently to France and ordered the respondent to bear the costs of the proceedings.

The appeal against these orders comes, by consent, directly to this Court.

I proceed to give a summary of some of the relevant portions of the evidence.

The appellant, Manfred Stock, is a man aged 50 years. He was born in East Prussia and immigrated with his parents to South Africa when he was six years old. His forefathers had for eight generations been

Diemont JA

dairy and cattle farmers, and his father became a dairy farmer at Philipi on the Cape Flats. After his father's death appellant bought the farm A from the estate. He worked diligently and in due course bought another farm in Nooiensfontein Road at Kuilsrivier. This farm, on which appellant now lives, is 17 miles from Cape Town. Appellant has prospered and is a comparatively well-to-do man; today he milks some 350 cows; he has a farm manager and there are a number of houses on the farm.

The respondent, Agnes Stock, was born in Lille in Frace in 1931. She came B to South Africa with her parents at the age of 14 years and lived first at Port Elizabeth and later in Durban. She studied art at a technical college in Durban for a period of three years and then went to Paris where she worked for two years before returning to Durban. She met the appellant in Cape Town in 1954 and despite the protests of her parents, C married him on 31 March 1959. The parents' objections were based on the fact that she was a Roman Catholic whereas the appellant was of German Jewish extraction. The parties took up residence at Cedars Farm, Philipi, which was at that time owned by appellant's father. The respondent did not take kindly to farm life which she described as an "isolated insular existence". She preferred the lights of Paris and during the marriage D made a number of trips to France. Four children were born of the marriage: Ariane, a girl aged 15 years; Fabrice, a boy aged 13 years; Laurent, a boy aged 10 year, and Agnes, a girl aged 7 years. (Their ages are given as at the date when these proceedings were launched in November 1979.)

E It is common cause that for many years the marriage was not a happy one. The respondent was at all times anxious to return to France and averred that prior to marriage the parties had agreed "that after the expiration of 10 years, we would return permanently to France for the purpose of residing there". Appellant said it was not true that there was any such F agreement. He said that he had promised her a home in Cape Town in 1969, after they had been married for 10 years, she searched for and found a house in an area which she liked. They bought six adjoining houses in Waterkant Street in Cape Town. The houses were dilapidated, but with his wife's help, appellant restored and occupied each of them in turn. Respondent had a knowledge of antiques and together they bought furniture G which became very valuable and subsequently led to disputes during the trial. Neither the antiques nor the renovated houses, however, resolved the matrimonial differences. The respondent complained that her husband spent too much time on the dairy farm - he was up early and came home late and he was parsimonious. He, in turn, complained that his wife was H slovenly, that the house was dirty, that the children's clothes were neglected. On 14 March 1978 respondent's attorneys wrote a letter to the appellant advising him that she intended instituting proceedings for divorce.

Appellant sought the assistance of the Marriage Guidance Council but his attempts to repair the broken marriage failed. After many months of negotiation it was agreed that the children should be kept together, that the custody should be given to the respondent subject to the appellant's reasonable access to them which should include:

Diemont JA

"(i)

the right to have the children spend alternate weekends with him commencing on a Friday at 6.00 pm and ending on a Sunday at 6.00 pm;

(ii)

alternate long and alternate short school holidays."

A It was further agreed that the respondent should not remove the children from South Africa without the authority of an order of Court, and that:

"The plaintiff undertakes to deposit the passports, both French and South African, for the four minor children with the plaintiff's attorneys, Abe Swersky and Associates. These passports may not be released to plaintiff or the minor children without the defendant's written consent thereto or, B should he refuse such consent, upon an order granted by this honourable Court."

Detailed provision was made for the support of the children in the following terms:

"(e)

The defendant undertakes to pay maintenance for each of the minor children at the rate of R75 per month up to and including 31 December 1979; R82 per month up to and including 31 December 1980 C and R90 per month thereafter. The defendant's obligation to maintain the minor children shall continue until they reach the age of 21 or become self-supporting, whichever date occurs first.

(f)

Defendant undertakes to pay all school fees for the academic year 1979 to enable the two minor boys to continue their schooling at Bishops and the two minor girls their schooling at St Cyprians. From the beginning of 1980 onwards the plaintiff shall be responsible for all school fees should the children continue their schooling at a private school.

(g)

The defendant undertakes, subject to sub-para (f), to pay, for as long as the children are at school:

(i)

all school fees;

(ii)

the cost of books and equipment reasonably required, not to exceed R240 in any calendar year and to be reduced proportionately as the children leave school, the payments to E be effected by defendant against submission of accounts to him;

(iii)

for all school uniforms and sporting equipment reasonably required, not to exceed R300 in respect of the current year and thereafter R600 per calendar year and to be reduced proportionately as the children leave school, payment to be effected by the defendant against submission of accounts to F him;

(iv)

it is recorded that the children are, or were until recently, each engaged in extramural activities as set out in annexure 'A' hereto, towards which defendant agrees to contribute a sum of R44 per month. Save for this, defendant will be liable only for such extramural activities in addition hereto as may be approved by him in writing. Such payments by defendant will be G contingent upon the child in question displaying reasonable aptitude for the activity in the opinion of the teacher concerned;

(h) (i)

Defendant undertakes to pay all medical, dental (excluding orthodontic), surgical and hospitalisation expenses and all expenses in respect of pharmaceutical products supplied on prescription for all four minor children, all such expenses to H be reasonably incurred, provided the accounts are submitted by plaintiff to defendant within 14 days of receipt thereof by plaintiff;

(ii)

for the remainder of this year the children are to attend therapy sessions with David Evans, or an alternative clinical psychologist, if the parties agree on an alternative psychologist in writing. The...