In a recent judgment highlighting the critical importance of the best interests of the child standard in divorce proceedings, the Supreme Court of Appeal (‘the SCA’) denied a father’s application for leave to appeal an order of the North Gauteng Division of the High Court, which refused to endorse a settlement agreement granting him primary residence and care of his minor child.
In Z D E v C E, the parties were married in January 2020 and had a daughter, A, born in July 2019. During their marriage, they resided in Lephalale, Limpopo where the Respondent was a stay-at-home mother and the Applicant worked full-time at Medupi Power Station. Subsequent to the breakdown of the parties’ marriage, the Applicant removed A from the marital home – without the Respondent’s consent – and relocated with the child to his parent’s home in Vanderbijlpark, Gauteng in October 2021. The Respondent remained in Lephalale.
In the wake of the parties’ separation, the Applicant instituted divorce proceedings and sought primary residence and care of A. In November 2021, the parties concluded a settlement agreement, regulating the proprietary consequences of the divorce and the care and contact arrangements in respect of A. Specifically, the agreement stipulated that the Applicant would have primary care of A, while the Respondent would retain contact rights, which included the removal of A from her now-permanent home in Vanderbijlpark every alternative Friday to Sunday. However, the Office of the Family Advocate, a state body that helps courts assess the best interests of children in cases involving minors, did not endorse the agreement, questioning the suitability of the proposed contact arrangement.
When the divorce was heard in court, the Respondent contested the agreement and claimed that she was coerced into signing it absent legal representation. Indeed, she argued that the Applicant had threatened to deny her access to A if she did not agree to his terms. After the brief presentation of oral evidence from both parties, the High Court referred the matter to a special trial to determine what arrangement would best serve A’s interests. To that end, the Office of the Family Advocate was requested to urgently assist the High Court with investigating the matter and compiling a report.
During trial, the Applicant contended that he was A’s primary caregiver after he left the marital home and relocated to Vanderbijlpark. Blaming the Respondent for the demise of their marriage, the Applicant further contended that she neglected A due to her gambling addiction and new relationship, which compromised her ability to properly care for the child. The Respondent, however, countered that, up until A’s removal from the marital home, she had always been her primary caregiver. Given financial constraints and the 450km distance between Lephalale and Vanderbijlpark, she was precluded from exercising her contact rights regularly.
After conducting interviews and observing A’s interactions with the parties, the Family Advocate found that the minor had ‘strong relationships’ with both parents. Nevertheless, the interim and final reports received from the Family Advocate recommended that A remain in the care of the Applicant with the Respondent retaining contact rights. Ultimately, the Family Advocate assessed that the Respondent’s ‘uncertain and unpredictable’ circumstances mitigated against granting her primary care of A.
The High Court, however, rejected the Family Advocate’s recommendation. It noted that A had been primarily cared for by the Respondent during her early years, and expressed concern about the emotional, developmental, and psychological impact of A’s separation from her mother. Further, it found that A had shown signs of distress during the transition to living with the Applicant and his parents in Vanderbijlpark, taking longer than expected to adjust to her new environment. Refusing to endorse the settlement agreement, the court awarded primary residence and care of A to the Respondent.
Tasked with assessing the Applicant’s reasonable prospects of success on appeal, the SCA was required to determine whether the High Court was correct in refusing to endorse the parties’ settlement agreement. At the heart of this evaluation is the best interests of A. Under South African law, the need to uphold the best interests of minors is constitutionally enshrined. Indeed, section 28(2) of the Constitution mandates that ‘[a] child’s best interests are of paramount importance in every matter concerning the child’. This principle is given legislative effect under section 9 of the Children’s Act (‘the Act’), which specifies that a child’s best interests are paramount in all matters concerning their ‘care, protection, and well-being’. Highlighting the critical importance of the principle, section 7 of the Act details the contours of the best interests of the child standard in application.
Under section 45(4) of the Act, the High Court functions as the ‘upper guardian of all children’. Accordingly, the High Court, as A’s upper guardian, was obligated to critically evaluate the parties’ care and contact arrangements contained in the settlement agreement. For this reason, the High Court is entitled to depart from the reports and recommendations of the Family Advocate in investigating and determining the best interests of a child. Accordingly, it may call evidence mero motu to facilitate its judicial assessment.
Noting its earlier finding in P v P, the SCA observed that determining the best interests of a child requires a court to ‘[make] a value judgment’ in light of the factual nexus in exercising ‘its inherent jurisdiction as the upper guardian of minor children.’ As such, the court must identify the ‘least detrimental available alternative for safeguarding the child’s growth and development’. Crediting the High Court’s ‘mindful’ approach in evaluating all relevant factors, the SCA ultimately concluded that the court a quo correctly exercised its judicial discretion by rejecting the settlement agreement and awarding primary residence and care of A to the Respondent. Resultantly, the SCA found no reason to interfere with the High Court’s decision and dismissed the application for leave to appeal.
Crucially, the case highlights the paramountcy of the best interests of the child principle and reaffirms the important function of the High Court in determining the best interests of children. In exercising this function, the High Court may reject a signed settlement agreement in instances where it does not serve a child’s best interests, as the SCA’s ruling demonstrates.
For expert legal advice, contact our divorce attorneys at familylaw@stbb.co.za.
