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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)

CASE NO: A 389/08

In the matter between

A.C. Appellant

and

K. C. Respondent

JUDGMENT

HARTZENBERG J

[1] The respondent applied in the urgent court before Pretorius J for permission to remove the minor children of the parties. Z.C. ( born [date] 1996) and A.C. ([date] 1998) from the Republic of South Africa so that they can accompany her to Abu Dhabi. She has received an attractive job offer in her work as a cytologist and wants to take it up. The respondent does not want to grant the required permission. They were divorced during August 2004. The court a quo granted the permission and the appellant, with leave of that court appeals to this court in terms of the provisions of Rule 49(18). a special earlier urgent date having been arranged.

[2] In terms of the agreement, that was incorporated in the order of divorce. the respondent was awarded the custody and control of the children. The appellant got fairly extensive rights of access. He could take the children away for alternate week-ends and for half of the long school holidays and alternate short school holidays. There were also special arrangements for birthdays and father's day.

(3] The respondent with the children has been living with her parents at M. in Mpumalanga. She is a cytologist who works for pathologists. It is a specialized work. She receives a salary of about R12 000 per month. Her parents support her with the care of the children. Z.C. is in grade 6 and a top ten learner. She is fairly proficient with the use of the English language. A.C. is in grade 4. He is an average learner with a concentration problem. His command of the English language is not as good as that of his sister. He seems to be a good sportsman who is fanatic about rugby but who also plays hockey. They receive their schooling through medium Afrikaans. The appellant does not raise any criticisms against the present care by the respondent of the children. He fears that if the respondent takes the children to Abu Dhabi she will no longer have the support system of her parents and that the children will not have the same space than what they have now and that accordingly it will not be in the best interests of the children if they have to go to Abu Dhabi.

[4] The appellant has exercised his rights of access regularly. Due to rising transport costs and toll money the appellant had to scale his week-endly removal of the children down to every third week-end. He has a good relationship with the children and they with him. As far as A.C. is concerned they share a love for rugby and the Blue Bulls and A.C. idolises Bryan Habana. The appellant and A.C. watch rugby together and sometimes they play rugby. There is no criticism of the Appellant as a father. The appellant is employed by the Land Bank.

[5] The relationship between the parties is somewhat strained. They communicate about the children mainly through SMS messages. They have only spoken to one another since the divorce on 5 occasions. The positive thing about their relationship seems to be that they have worked out a way of communication for the sake of the children. When the respondent wanted to get the appellants permission to remove the children she took a clinical psychologist who is known to both parties with her to convey the request to the appellant. The appellant who by then had heard through the children that she wanted to go to Abu Dhabi did not accede to the request. The parties' recollection of the event is of such a nature that they each regard the other's conduct as objectionable. In my view as far as the interests of the children are concerned it does not really matter whose recollection is correct. It may very well be that both of them overstate the negative aspects of the other's conduct.

[6] The offer to the respondent is for a salary of R27 000 per month. There are also a number of allowances. There is a house allowance of no less than R150 000 per annum. There is also a sizeable furniture allowance. There is no tax deduction. The children will have to attend an American school through medium English. The subjects are apart from Arabic and the lack of Afrikaans by and large the same as in this country. It is not clear exactly how long the respondent will stay in Abu Dhabi. There is talk of an open-ended contract and then it seems as if she is under the impression that it will be for three years. She states that she is not emigrating to the Emirates.

[7] The respondent is aware that if she goes to Abu Dhabi the appellant will be deprived of a very great portion of his rights of access. She has offered, and the offer was included in the order of the of the court a quo, to arrange, at her cost, that the children will visit South Africa for two months during their summer holiday which is during June, July and August each year when they will see the appellant. She has also indicated that she intends to obtain Webcam facilities through which, if he so desires, the appellant can have a daily conversation with the children. She will also see to it that they each have a cellular telephone which is another medium through which he can communicate with them.

[8] Pretorius J asked for an urgent report from the Family Advocate. By the nature of things the Family Advocate did not have the time to do an in-depth investigation. The Family Advocate was of the view that it could recommend that Z.C. can be taken out of the country, as she has expressed the wish to go to Abu Dhabi. There were reservations about A.C.. The respondent's attitude is simply that if she gets permission to take the children with her she will go but if she does not get the permission she will stay in the country. Pretorius J made the order despite the reservations in respect of A.C.. The concern is about the fact that he is not such a good learner and his possible problems with education through medium English.

[9] The applicant does not want to give his permission for the removal of the children because he will be deprived of a lot of personal contact with the children and by the nature of things they will be deprived of such contact with their father, which is a consideration that is specifically mentioned in section 7 of the Children's Act. no. 38 of 2005 ("the Act"). Another concern of his is that the respondent will not have the benefit of the support system which she has here. He indicates that once during the marriage the respondent who is suffering from depression had to be taken up in a clinic. His main complaint in my view is that the information given about the stay in Abu Dhabi is very scanty and that it is not possible to compare the two situations with one another. He feels that unless the respondent can give more detail about the difference between her financial position now and what it will be there and that unless she can give more detail about the education and the possible problems and about where they will live and how they will arrange their transport the court cannot make a proper evaluation about the aspects in section 7 of the Act, which the court has to take into account.

[10] Mr Ebersohn conceded that the decision to go to Abu Dhabi was bona fide. The respondent received the offer and made a lot of enquiries about Abu Dhabi. There is. for example, an Afrikaans church and a service even week. There is quite a big Afrikaans community. She obtained a lot of information about the education there. The respondent discussed the possible move with her parents. They must by now have become accustomed to the children and yet they decided with her that it was in her and the children's interest to accept the offer. It was only after some time that her final decision was taken. Mr Ebersohn argues, however, that although the decision was bona fide the decision was not reasonable. He says that as the court a quo did not specifically deal with all the aspects that the Legislature regarded as important and arc contained in section 7 of the Act the court did not take them into account.

[11] To decide whether the respondent's decision was a reasonable one the court had to take an overall view of the situation. It is not like marking a mathematics lest where the score is counted up and one can see whether the candidate has passed or failed. It is more like marking an essay where one reads it and takes cognizance of the contents thereof and then one makes a value judgment to decide on the mark that is to be given. In the process relevant aspects are to be weighed up against one another. The fact that the decision maker does not mention each aspect does mean that it was not a consideration in his/her mind when he/she came to the decision. The attack against the decision of the court on this ground is in my view unsound.

[12] Children cannot select their parents. They are bound to them through their birth. When parents are together they take decisions which affect the lives of the children. All of those decisions arc not always sound ones. Sometimes they take decisions which in retrospect were wrong and which they regret. Some of those decisions have an element of risk in them. If the bread winner gets a job offer which looks as if it would be to the advantage of the family, usually it will be accepted. It may be a wrong decision. If on the other hand it was a sound decision the family may benefit greatly from it. Such is life. If parents gel divorced the taking of decisions is complicated but the fact that decisions have to be made remains. In this case the respondent has taken a decision which she regards as a reasonable decision and for the benefit of the children. The appellant, however, regards the decision as an unreasonable decision.

[13] The test to decide whether the decision is a reasonable one or not. one must think oneself into the shoes of the proverbial bonus paterfamilias or the reasonable man. To do so I cannot do better than what van der Heever JA did in the often quoted definition in Herschel v Mrupe 1954 (3) 464 (A) at 490F :

"The concept of the bonus parterfamilias is not that of a timorous faint-heart lest he or others suffer some injury: on the contrary, he ventures out into the world, engages in affairs and lakes reasonable chances. He lakes reasonable precautions to protect his person and property and expects other to do likewise."

[14] The court a quo was acutely aware thereof that there is a weighing up of considerations, hence it also took into account the factor that if an opportunity which the one parent regards as a good opportunity is thwarted by the other parent's opposition thereto it may lead to strife which will eventually redound to the disadvantage of the children Jackson v Jackson, 2002 (2) SA 303 (SCA) at 318 and F V F. 2006 (3) SA 42 (SCA) at 49). It also took into account the principle that a court should not readily interfere with a bona fide decision which the custodian parent regards as reasonable (du Preez v du Preez, 1969 (3) SA 549 (D)

[15] The final question is whether the decision of the respondent was. objectively viewed, a decision which the reasonable person would have taken. There are no guarantees and there are elements of risk in what may happen but there are also opportunities which may be very advantageous for the children. The respondent obviously weighed up the advantages against the disadvantages when she decided to accept the offer. In my judgment the reasonable person would have decided as the respondent did. The court a quo was clearly of the same view. Hence the appeal cannot succeed.

[16] There can he no doubt that both of the parties were of the view that their contention is the correct one and that what they wanted the court to do was in the interest of the children. In such circumstances a court will not easily award costs to one of the parties. The court a quo did not make an order of costs. There is no reason that this court should make a costs order.

The appeal is dismissed.

J HARTZENBERG

JUDGE OF THE HIGH COURT

I agree.

A J BAM

ACTING JUDGE OF THE HIGH COURT

I agree

S POTTERILL

ACTING JUDGE OF THE HIGH COURT

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