A father who took his child from her mother without her consent, only for his parents to look after the child in another province, lost a leave to appeal bid at the SCA, where he tried to challenge a Gauteng High Court (Pretoria) ruling that refused to endorse that he has full custody of the child.

‘Mr E’ had applied for leave to appeal the court order which refused to endorse a divorce settlement agreement he said he entered into with his former wife (Mrs E).

This agreement gave Mr E primary care of their five-year-old daughter.

TimesLIVE reports that the couple, who had been together since 2018, got engaged and in July 2019 and the daughter was born in Lephalale, Limpopo. The two married in community of property on 30 January 2020 and lived with their child in Lephalale as Mr E worked at Eskom’s Medupi power station.

The two agreed that Mrs E would be a full-time stay-at-home mother. However, their marriage broke down in September 2021 after Mrs E told her husband that she wanted a divorce.

When the matter was before the unopposed divorce court on June 2022, Mrs E protested against the settlement agreement, telling the High Court that she was coerced into signing it without having any legal representation.

The court referred the matter to a special trial set down for July 2022 to determine the best interests of the child, where the office of the family advocate was requested to assist the court with an urgent investigation and report.

TimesLIVE reports that SCA Judge Daisy Molefe said the court had a duty to determine the best interests of the child.

Although Mrs E had initially bound herself to the settlement agreement, the High Court, as upper guardian of the child, had a duty to interrogate the facts and the arrangements made for the child. Molefe said the High Court had to be satisfied that the provisions made for the welfare of the child were satisfactory and, in the child’s best interests.

‘In conclusion, the High Court cannot be faulted in how it exercised its discretion by not following the arrangements made in the settlement agreement and making its own order that it deemed served the best interests of (the child). There is accordingly no misdirection warranting this court’s interference in that regard. Nor is there any misdirection in the High Court’s assessment of the evidence,’ Molefe said.

The court also ordered costs be awarded against Mr E which are to be paid from his share of the communal estate.

Full TimesLIVE report

Judgment