TKS v WJS
| Jurisdiction | South Africa |
| Judge | Mngadi J |
| Judgment Date | 12 October 2018 |
| Docket Number | 11385/2016 |
| Court | KwaZulu-Natal Division, Durban |
| Hearing Date | 08 October 2018 |
| Citation | 2018 JDR 1873 (KZD) |
Mngadi J:
This is a divorce action. At the commencement of the hearing, the parties placed on record that they have agreed on the following, namely;
That a decree of divorce be granted and the division of the joint estate be ordered; that both plaintiff and defendant shall remain co-holders of parental rights and responsibilities of the two minor children of the marriage. The primary residence of the two minor children shall be with the plaintiff, the defendant shall pay maintenance to the plaintiff for the minor children at the rate of R1 500.00
2018 JDR 1873 p2
Mngadi J
per month per child; the defendant shall pay 50% of all educational, crèche and allied expenses, such to include but not limited to books, stationery, uniforms, extra-curricular activities and excursions; the defendant shall retain the minor children as beneficiaries of his medical aid scheme.
Further, it was placed on record that; (1) the parties could not reach a settlement relating to the entitlement of the plaintiff to 50% of the defendant's interest in and to his membership of the Momentum Provident and/or Pension Fund as well to the endorsement in the said Fund of her interest; (2) the exercise of the defendant of contact to the two minor children. These were the only issues for determination.
The plaintiff testified, and she was the only witness for the plaintiff. The defendant testified, he too was the only witness for the defendant.
The divorce action was instituted on 4 November 2016. The parties married each other in community of property on 26 March 2011. There are two minor children born of the marriage, namely; LDS, a girl born on 01 June 2013 and LWS, a boy born on 24 November 2015. The parties experienced difficulties in their marriage and separated in October 2016 when the defendant left the common household or was not welcomed back to the common household. The two minor children remained with the plaintiff, their mother.
Initially, the defendant had supervised contact on a Saturday for two to three hours with the children. On 16 March 2017 the court pendente lite granted the defendant unsupervised contact with the children on alternate weekends from 9h00 to 16h00 on a Saturday and for one half of the day on each of the children's birthdays , and on the occasions of the father's day and mother's day.
The Family Advocate appointed in terms of the Mediation in Certain Divorce Matters Act, 24 of 1987 instituted on enquiry as envisaged in terms of s4 of the said Act.
2018 JDR 1873 p3
Mngadi J
In her report dated 12 September 2017, she recommended, subject to the parties undergoing co-parenting counselling, the following:
The parties to remain co-holders of full parental responsibilities and rights in respect of the children; the children to reside with the plaintiff, the defendant to be entitled to exercise reasonable contact with the children to be phased in as following:
Phase 1: For a period of two months: they visit from 9h00 to 17h00 on Saturdays and Sundays on alternate weekends.
Phase 2: For a period of six months: one overnight stay from 9h00 on a Saturday to 17h00 on a Sunday on alternate weekends.
Phase 3: After expiry of phase 2: contact from after school on Friday to 17h00 on Sunday on alternate weekends.
In addition, in respect of each phase, the Family Advocate recommended relating to access during public holidays; Christmas and New Year's; Mother's days and Father's days; school holidays and for daily telephone contact.
Contact refers to maintaining a personal relationship with the child and communicating with the child on a regular basis. The court may make whatever order it deems fit regarding contact and may impose any conditions and/or...
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