The love affair of a Knysna woman and her lover from France has affected so much of the South African law, that Parliament now has two years to change legislation.
She’s Mrs S now, but back in the day she used to be Ms J and she met Mr B N in 2007 when he was in Knysna during his holiday from France, where he was living and working as a professional rugby player.
Theirs was a whirlwind romance, and in August of 2008, Mrs S moved to the town of Oyonnax in France to live with Mr B N. The couple never married.
She gave birth in 2009 and 2011 to their children. But in 2012, their relationship soured, and they eventually broke up in June 2014.
They both agreed that Mrs S and the children would return to South Africa. He was paying R20000 child maintenance until she got a job in Johannesburg and the amount was reduced to R15000.
In December 2015 Mr B N moved to George in the Western Cape at which point Mrs S suggested to him that they have a parenting plan drawn up. Mr B N rejected the idea.
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During the Easter school holidays of 2016, the former lovers agreed that the children would visit Mr B N in George. But she realized that Mr B N had booked a one-way ticket for the children and refused to book a return ticket, Mrs S refused to send the children to their father and proposed that Mr B N visit them in Johannesburg instead.
On 13 March 2016 Mr B N launched an urgent application in the High Court for an order granting him contact with his children. The parties resolved the matter by concluding a parenting plan which was made an order of court on 15 March 2016. It dealt with guardianship, parental responsibilities, residential arrangements, access and visitation rights. The rights were to be exercised and enjoyed by both parties in South Africa and Mrs S’ residence was to be the primary residence.
This arrangement was fine for four years until February 2020 when Mrs S got married.
She and her husband debated the possibility of emigrating from South Africa with the children born of her relationship with Mr B N. Mr B N did not support the idea when it was conveyed to him and instead insisted that the children live with him in George in the event Mrs T S and her husband decided to leave South Africa.
Unable to secure Mr B N’s consent to relocate with the children to Australia, Mrs T S approached the High Court for relief.
She wanted to move to Canberra, Australia. Her move would result in a change of the parenting plan because, as the primary caregiver their residence would no longer be in South Africa.
The court heard the matter and found that the rules that applied to married couples that were going through a divorce did not apply to couples who were never married.
In most litigation, the court usually requires a report from the Family Advocate in order to rule finally in the matter. In this case, the parties found out that the Family Advocate does not conduct investigations nor compile reports in matters involving minor children, if the parents have never been married, unless specifically ordered to do so in terms of an order of court, which order is only obtained on application by one of the parents.
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The Centre for Child Law (CCL), a registered law clinic based in the Faculty of Law of the University of Pretoria, has then taken the matter to court, challenging the constitutionality of Mediation in Certain Divorce Matters Act 24 of 1987.
They argue that section 4 of that Act inconsistent with the Constitution and invalid.
The matter went to the Constitutional Court and the Apex Court heard that “The CCL argues that there are at least three rights that are violated by the impugned provision, namely: the section 9 right to equality, the section 10 right to human dignity and the right of minor children to have their best interests considered of paramount importance as envisaged in section 28.”
The ConCourt agrees.
“This inescapably leads to the conclusion that section 4 also is an unjustifiable limitation of the rights of affected parents and children in terms of sections 10 and 28 of the Bill of Rights.
“The declaration of invalidity referred to in paragraph 1 shall not be retrospective and is suspended for a period of 24 months to enable Parliament to cure the defect in the Mediation in Certain Divorce Matters Act giving rise to its invalidity.”
