Z D E v C E

Mr and Mrs E became involved in 2018 and married in community of property in January 2020. They had a daughter (A) born in July 2019. Mrs E was a stay-at-home mother who breastfed A, while Mr E worked at Medupi Power Station in Lephalale, Limpopo. In September 2021 the marriage broke down. In October 2021, Mr E removed A from the common home to his parental home in Vanderbijlpark, Gauteng, without Mrs E's consent, and permanently relocated there in November 2021. Mr E instituted divorce proceedings in October 2021 seeking primary residence of A. On 4 November 2021, the parties signed a settlement agreement providing that primary residence and care of A would vest with Mr E, subject to Mrs E's alternate weekend contact rights. The Family Advocate did not endorse the agreement. When the matter came before the unopposed divorce court in June 2022, Mrs E protested the settlement agreement, claiming she was coerced into signing it without legal representation. The high court referred the matter to a special trial to determine A's best interests.

• Whether the high court was correct in refusing to endorse the divorce settlement agreement regarding the primary residence and care of the minor child
• Whether the high court properly exercised its discretion as upper guardian of minor children in determining the best interests of the child
• Whether the court was bound to follow the Family Advocate's recommendations
• Whether the costs order against Mr E was appropriate

The application for leave to appeal was refused. No order for costs was made in the Supreme Court of Appeal as Mrs E did not oppose the application. The high court's order granting primary residence and care of A to Mrs E, with specific contact rights to Mr E, was upheld, as was the costs order against Mr E to be paid from his share of the communal estate.

The binding legal principles established are: (1) In matters concerning minor children, the court as upper guardian has a duty to enquire whether any arrangement by parties, including settlement agreements, serves the best interests of the child; (2) The determination of a child's best interests involves the court making a value judgment based on findings of fact in exercise of its inherent jurisdiction as upper guardian; (3) Section 28(2) of the Constitution makes the child's best interests of paramount importance in every matter concerning the child; (4) While Family Advocate reports and recommendations are of great assistance, courts are not bound to follow them and retain their own discretion; (5) A court may call evidence mero motu to assist in judicial investigation of the child's best interests; (6) The court should not give one factor, such as maintaining the status quo, pre-eminence over other factors relevant to the child's best interests.

The Court noted that it was unnecessary to make any determination on the allegation that the settlement agreement was voidable due to duress, in view of its findings on the best interests of the child. The Court also observed that the court is not looking for a perfect parent but to find 'the least detrimental available alternative for safeguarding the child's growth and development' (citing P v P). The judgment also commented on the tone of Mr E's correspondence and testimony, indicating judicial displeasure with his approach, though this was primarily relevant to the costs assessment rather than being an independent legal principle.

This case reinforces important principles in South African family law regarding children's rights in divorce proceedings. It confirms the court's inherent jurisdiction and duty as upper guardian to scrutinize settlement agreements concerning children, even where parties have agreed. The judgment emphasizes that section 28(2) of the Constitution makes children's best interests paramount in every matter concerning them. The case clarifies that while Family Advocate reports are important, courts retain ultimate discretion and are not bound by their recommendations. It also demonstrates the court's willingness to call evidence mero motu to establish what serves the child's best interests, and that maintaining the status quo should not be given automatic pre-eminence over other factors.