Potgieter v Potgieter [2007] SCA 47 (RSA)
Centre for Constitutional Rights > Constitutional developments > Constitutional developments: Courts
Cape Provincial Division, which dismissed an appeal against an order of the Port Elizabeth High Court. The appeal was directed against the custody order, the order for rehabilitative maintenance in favour of the respondent and a costs order against the appellant. Despite expert evidence to the contrary, the trial court granted custody of the parties 2 minor children to the respondent. All 3 courts emphasised that the fundamental principle applied in all matters concerning children is now entrenched in s 28 of the Constitution, which prescribes the paramouncy of the child’s best interests. A comprehensive ‘check list’ of criteria in determining best interests as developed by the courts, has been encapsulated in an expanded form in s 7(1) of the Children’s Act, 38 of 2005. Determining what custody arrangements will serve the best interests of the children in any particular case involves making a value judgment, based its finding of fact in the exercise of its inherent jurisdiction as upper guardian of minor children. Expert evidence should not constitute speculation of the expert; it must be the expert’s judgment in a matter of fact. The trial court found that the experts had failed to draw a line between matters of fact and matters of value, “thereby distorting the judicial process by acting like judges.” Their evidence accordingly had no probative value. On its own factual finding all 3 courts found that the children’s best interest would be served by granting custody to the respondent. The appeal was accordingly dismissed.
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