Unemployed father battles late wife's family to keep children in SA as judge probes uncle's trust fund motives

In a heart-wrenching tale of love and loss, a Johannesburg father fought to keep his two children in the country after relatives of his late estranged wife sought to take them to Scotland.

The court battle unfolded as the father, who struggled with a longstanding drug problem, was determined to prove his ability to provide a stable environment for his children despite his past challenges.

The relationship between the deceased and the father began to deteriorate in 2019 when he moved out of their shared residence in Craighall, Johannesburg, and relocated to another property in Midrand. It was stated that the primary cause of their marital breakdown was the father’s drug abuse, specifically CAT. Due to his substance abuse, his behaviour reportedly became aggressive, leading the wife to fear for her life and the safety of their children. This resulted in her obtaining a protection order barring him from accessing the Craighall residence.

She initiated divorce proceedings in 2020 but passed away in March 2024 before the divorce was finalised. Following her death, the children's grandmother was granted interim primary care.

The mother, a trauma surgeon, had a demanding schedule and relied on an au pair to care for the children. Later, her mother was also employed as a second au pair. After the mother’s passing, the au pair continued working with the children.

In an urgent application filed at the South Gauteng High Court in Johannesburg, the late wife's relatives—her brother and his wife—argued that the au pair had resigned and would be leaving at the end of November 2024. They submitted a report by Dr Del Fabbro and a therapist, asserting that the children needed a stable environment and could not continuously rely on au pairs.

To strengthen their case, the relatives claimed they were suitable candidates for guardianship, having demonstrated care and maintained consistent contact with the children via telephone and video calls. The uncle stated that he had a stable job and owned a company, Group Funeral Services (Pty) Ltd, while his wife, employed in Scotland, had recently received a promotion.

They added that their residence in Scotland was located in a child-friendly area with high educational standards and lower crime rates compared to South Africa. They also argued that Scotland offered better opportunities for the children. The couple currently rent a three-bedroom house where they live with their 15-year-old son and plan to acquire a larger home in the next two years. However, if the children were to relocate, they intended to expedite their plans to ensure each child had their own room.

Through their legal representative, they criticised the father’s financial position, arguing it was unstable. They claimed he failed to provide proof of income and had not paid the mortgage on the Midrand property for 18 months, leading to imminent foreclosure. They further alleged that he had been absent from the children's lives for over four years and, despite presenting clean drug test results, Dr Fabbro's report indicated ongoing alcohol abuse.

In his response, the father maintained that he had complied with the family advocate's conditions, which required him to remain drug-free for two years before unsupervised contact could be reconsidered. Regarding his financial situation, he argued that his income was terminated by the uncle and other trustees, as he previously received money from properties co-owned with his late wife.

He explained that his longstanding feud with the uncle stemmed from disputes over the management and finances of a company they both worked for, which had been established by his wife's parents. He further claimed that his opponents had access to funds from the Amber Trust, which financed their legal proceedings, while he lacked financial resources for representation.

Additionally, he alleged that the uncle's objective in seeking guardianship and relocation was to gain access to the trust funds and purchase property in Scotland.

Judge Mokate Victor Noko found that the uncle failed to provide financial evidence to support his case and noted that his financial position should not be compared to the father's, whose finances had been consistently unstable. The judge also criticised the uncle's refusal to provide his address in Scotland, citing concerns over the father's past behaviour.

The judge ruled that relocating the children to Scotland would be based on insufficient information. He advised that if the uncle wished to pursue guardianship in the future, he would need to present comprehensive plans, including financial proof, school arrangements, and an assessment by Scottish authorities confirming the suitability of their living conditions.

"A visitation could also be arranged for the children to visit Scotland for a shorter period so that they can assess the place," the judge suggested.

Judge Noko expressed concern about uprooting the children from their familiar environment and placing them in an English-medium school, as they had been attending Afrikaans schools in South Africa.

"In addition, the uncle appears not to have made any concrete plans for the children. He lacks the financial means to implement his proposals and seems more interested in accessing the trust funds," the judge stated.

The court ultimately granted guardianship of the children to their grandmother. The judge acknowledged that due to her age, she might not be a permanent solution, but she was deemed the most suitable option compared to the uncle and the father, both of whom were seeking long-term arrangements

sinenhlanhla.masilela@iol.co.za

IOL