IN   THE   HIGH   COURT OF SOUTH   AFRICA (WESTERN CAPE DIVISION, CAPE TOWN) CASE NO:                                /2024 In the matter between: KONRAD JOSEPH SCHÜLER                                                                                      (Applicant) Identity number: 590504 5229 08 0 and VANESSA GAIL SCHÜLER                                                                                         (Respondent) Identity number: 600904 0208 08 9   NOTICE OF MOTION   TAKE NOTICE that the Applicant intends to make an Application to the above Honourable Court for an Order in the following terms:
  1. The Applicant’s non-compliance with the requirements of forms, service, manner of service and time periods provided in the Uniform Rules of this Honorable Court be condoned insofar as necessary;
  2. Prior to any proceeds of the sale of portion 19,346, Koppersfontein, Western Cape (the property), being paid to the Respondent:
    • the Transferring Attorneys shall retain the sum equal to the outstanding debt of the former joint estate of the parties referred to in clause 3.1.3 of the Consent Paper (the debt), which was made an Order of the Regional Court for the Regional Division of the Western Cape, held in Cape Town, on 24 October 2023, under case number 165/2023 (the divorce Order) and utilise it to settle the debt;
    • The Transferring Attorneys shall retain an amount equal to the sum of all payments made by the Applicant and/or debited from his Standard Bank Account calculated from 01 November 2023, which was used to pay the Respondent’s half of the debt, and reimburse the Applicant therewith on behalf of the Respondent;
  3. The motor vehicle referred to in clause 4.1.2 of the Divorce Order, being a 2011 Hyundai Ix35 2.0 Gls/Executive, with registration number CAA 412805, shall be retained by the Applicant as his sole and exclusive property for which right the Applicant shall forthwith pay the Respondent the sum of R 3 661 (three thousand six hundred and sixty-one rand); and
  4. Costs of this Application; and
  5. Further and/or alternative relief.
  TAKE NOTICE FURTHER that the Applicant has appointed the firm ADVOCATE MUHAMMAD ABDUROAF, with its details as stated below as his/her Legal Practitioner of record and address at which he/she shall accept notice and service of all process in these proceedings. KINDLY TAKE NOTICE FURTHER that if you intend opposing the Application, you are required to:
  • inform the Applicant’s Legal Practitioner within 10 (ten) days of receipt hereof of your intention to do so; and
  • fifteen days after you have so given notice of your intention to oppose the Application, to file your answering affidavit, if any; and further;
  • that you are required to appoint in such notification an address referred to in rule 6 (5) (b) at which you will accept notice and service of all documents in these proceedings.
KINDLY BE ADVISED FURTHER, that if no such notice of intention to oppose is given, the Application will be made on a date and time to be provided by the Registrar of this Honourable Court. TAKE NOTICE FURTHER that the Founding Affidavit of KONRAD JOSEPH SCHÜLER will be used in support of this Application. TAKE NOTICE FURTHER that the Applicant consent to service of any process in these proceedings via email using the email address [email protected].    DATED AT CAPE TOWN ON THIS      DAY OF JANUARY 2024.   _______________________________ Per: Adv. M Abduroaf (Legal Practitioner of the Applicant) Trust Account Advocate – An advocate as contemplated in section 34(2)(b) of the Legal Practice Act, 28 of 2014 (the Act) Chambers.: The Pinnacle | Suite 702, 7th Floor Corner Strand, Burg & Castle Streets | Cape Town, 8001 Tel.: +2721 111 0090 Email.: [email protected] (Email Service) High Court Box 115 Ref.: M22081/Schüler   To:           THE HONOURABLE REGISTRAR OF THE WESTERN CAPE HIGH COURT HIGH COURT CAPE TOWN     And to:    VANESSA GAIL SCHÜLER      (Respondent) Ruby Estate, Gems 5 Unit 4, Burgundy Estate CAPE TOWN ________________________O0O___________________      

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IN   THE   HIGH   COURT OF SOUTH   AFRICA

(WESTERN CAPE DIVISION, CAPE TOWN)

CASE NO:                                /2024

In the matter between:

KONRAD JOSEPH SCHÜLER                                                                                      (Applicant)

Identity number: 590504 5229 08 0

and

VANESSA GAIL SCHÜLER                                                                                         (Respondent)

Identity number: 600904 0208 08 9

 

NOTICE OF MOTION

 

TAKE NOTICE that the Applicant intends to make an Application to the above Honourable Court for an Order in the following terms:

  1. The Applicant’s non-compliance with the requirements of forms, service, manner of service and time periods provided in the Uniform Rules of this Honorable Court be condoned insofar as necessary;
  2. Prior to any proceeds of the sale of portion 19,346, Koppersfontein, Western Cape (the property), being paid to the Respondent:
    • the Transferring Attorneys shall retain the sum equal to the outstanding debt of the former joint estate of the parties referred to in clause 3.1.3 of the Consent Paper (the debt), which was made an Order of the Regional Court for the Regional Division of the Western Cape, held in Cape Town, on 24 October 2023, under case number 165/2023 (the divorce Order) and utilise it to settle the debt;
    • The Transferring Attorneys shall retain an amount equal to the sum of all payments made by the Applicant and/or debited from his Standard Bank Account calculated from 01 November 2023, which was used to pay the Respondent’s half of the debt, and reimburse the Applicant therewith on behalf of the Respondent;
  3. The motor vehicle referred to in clause 4.1.2 of the Divorce Order, being a 2011 Hyundai Ix35 2.0 Gls/Executive, with registration number CAA 412805, shall be retained by the Applicant as his sole and exclusive property for which right the Applicant shall forthwith pay the Respondent the sum of R 3 661 (three thousand six hundred and sixty-one rand); and
  4. Costs of this Application; and
  5. Further and/or alternative relief.

 

TAKE NOTICE FURTHER that the Applicant has appointed the firm ADVOCATE MUHAMMAD ABDUROAF, with its details as stated below as his/her Legal Practitioner of record and address at which he/she shall accept notice and service of all process in these proceedings.

KINDLY TAKE NOTICE FURTHER that if you intend opposing the Application, you are required to:

  • inform the Applicant’s Legal Practitioner within 10 (ten) days of receipt hereof of your intention to do so; and
  • fifteen days after you have so given notice of your intention to oppose the Application, to file your answering affidavit, if any; and further;
  • that you are required to appoint in such notification an address referred to in rule 6 (5) (b) at which you will accept notice and service of all documents in these proceedings.

KINDLY BE ADVISED FURTHER, that if no such notice of intention to oppose is given, the Application will be made on a date and time to be provided by the Registrar of this Honourable Court.

TAKE NOTICE FURTHER that the Founding Affidavit of KONRAD JOSEPH SCHÜLER will be used in support of this Application.

TAKE NOTICE FURTHER that the Applicant consent to service of any process in these proceedings via email using the email address [email protected].   

DATED AT CAPE TOWN ON THIS      DAY OF JANUARY 2024.

 

_______________________________

Per: Adv. M Abduroaf

(Legal Practitioner of the Applicant)

Trust Account Advocate – An advocate as contemplated in section 34(2)(b) of the Legal Practice Act, 28 of 2014 (the Act)

Chambers.: The Pinnacle | Suite 702, 7th Floor Corner Strand, Burg & Castle Streets | Cape Town, 8001

Tel.: +2721 111 0090

Email.: [email protected] (Email Service)

High Court Box 115

Ref.: M22081/Schüler

 

To:           THE HONOURABLE REGISTRAR OF THE WESTERN CAPE HIGH COURT

HIGH COURT

CAPE TOWN

 

 

And to:    VANESSA GAIL SCHÜLER     

(Respondent)

Ruby Estate, Gems 5

Unit 4, Burgundy Estate

CAPE TOWN

________________________O0O___________________

 

 

 

Related Post

Relocation with your minor child from South Africa – What are my rights?

In today’s modern times, many people decide to leave South Africa and seek employment overseas or in a nearby country. The reason for that could be many. But usually, it’s because they feel they can earn much more in a different country or live a better life. Furthermore, safety and security, and medical benefits are on the list. What often happens is one parent wants to relocate, with a child, however, the other parent has an issue with it. As you will see later, the consent of both guardians is required for a minor child to leave the Republic of South Africa. advice-child-maintenance-child-custody-divorce

Parents need to first discuss the issue of relocation before making a decision

We are often approached by the parent wishing to relocate with the minor child for legal advice. It is often the mother. She wants to know what her rights are regarding the child relocating with her. Now the ideal situation would be for both parents to sit down and discuss the issue. It would obviously have a big impact on their lives should relocation with the child take place. They should discuss aspects regarding contact and maintenance should relocation be a viable option. However, meeting eye to eye and having a sensible discussion on the issue is not always the case.

Effects of relocation on the parents

advice-child-maintenance-child-custody-divorceIt often happens when parents do not agree on the issue of relocation; the parent wishing to relocate has to make some drastic decisions. Should she remain in South Africa and continue in her current employment, or remain unemployed? By remaining in South Africa, she would remain the primary caregiver of the minor child. The other option is for the parent to not fight the issue but decide to relocate and leave the child with a parent in South Africa. This could become problematic. Especially so in the case where the parent residing in South Africa was never a primary caregiver of the minor child. In other words, he or she cannot care for the child as well as the parent wishing to relocate.

What does South African law say?

Now in terms of the law, if a child should be removed from the Republic of South Africa, for traveling, or relocation, he or she requires the consent of both guardians. We will not go into the finer details of who is a guardian and what are the rights of a guardian. However, in terms of the Children’s Act, both guardians should consent for the minor child to be removed from the Republic of South Africa, and his or her return. Therefore, if the parents come to an agreement that the minor child may relocate, then the consenting parent should only sign necessary consent documents. Those documents can be obtained from the Department of Home Affairs. At the same time additional assisting documents will be of use. For example, an affidavit from the father stating that he has no issue with a minor child relocating and he provides a mother with the authority to make certain decisions regarding the minor child. These decisions could relate to the enrolment of schools, medical consent, and consent to travel within the country.

advice-child-maintenance-child-custody-divorceWhat happens if consent for relocation is refused by one parent?

Let’s say consent is not provided. What can the parent do under those circumstances? Unfortunately, the parent would have to approach the court to dispense with the consent of the other. He or she will have to convince the court that it would be in the minor child’s best interest for the relocation to take place. The parent who remains in South Africa will have to do the opposite. He or she would have to convince the court that it would be in the child’s best interest for them to remain in South Africa. Valid reasons could be that the country that they wish to relocate to is dangerous, or the child would be better suited to remain in South Africa.

More on approaching the Court when it comes to relocation of minor children

Now the problem arises as mentioned earlier. The parent wishing to relocate is left with a predicament. Does he or she remain in South Africa caring for the child or does he or she relocate and leave the child behind if consent is not given. As stated earlier, he or she would have to approach the Court. All these factors will have to be ventilated before the court and then the court will decide what is in the minor child’s best interest. We pause here to state that should a parent follow the specific route in approaching the court, he or she may want to at the same time apply for certain sole guardianship rights to the minor child. The parent would have to ask the court for certain rights, for example, should the minor child have to apply for a passport while overseas; only that parent’s consent is required. The same applies should the minor child have to be enrolled in a school, and as stated earlier, attend to a medical procedure. advice-child-maintenance-child-custody-divorceIf the parent relocating is a mother, she can bring up a constitutional argument. She may argue that because she is a mother of the child and gave birth to the child, it is unfair for her to obtain the father’s consent under the circumstances. He, on the other hand, may decide to travel anywhere in the world and do not require the consent of the mother, because he is not the primary caregiver of the minor child.

Summary of the issue of consent for the relocation of minor children

So in short, if the parties cannot come to an agreement on the relocation of the minor child to another country, the parents wishing to relocate should approach the court to dispense with the consent of the other parent. The other parent can oppose the application stating various reasons why it would not be in the minor child’s best interest for them to relocate. If that parent was not much involved in the minor child’s life and cannot care for the minor child; more than likely the court would not find in that parent’s favour. The bottom line is as stated, the court will decide what is best for the child. advice-child-maintenance-child-custody-divorce  
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Questions parents ask in child custody disputes. What are some of the difficulties parents face when dealing with child custody issues and problems?

When parents have issues and difficulties regarding their parental responsibilities and rights, they often go online for answers. These issues can relate to contact rights or guardianship issues. One parent may want to have more contact, and the other parent refuses such a request. Or a parent wants to relocate with a minor child, and the other parent refuses guardianship consent. Whatever the issues are, they need to be resolved in the child’s best interests. Read on for some interesting questions parents ask online.

Does the abuse of alcohol affect the outcome of a child custody case?

Abusing alcohol is very dangerous. Not only for you but for your relationship and parenting as well. If a parent abuses alcohol in the presence of a child, then the child is in danger, or at the very least, in a potential neglectful situation. If both parents abuse alcohol, then the case is much more serious and social welfare needs to get involved. On the issue of a child custody case, the abuse of alcohol is material and would play a huge role in the outcome of the case. The extent could be that custody is revoked.

What can you not say in a child custody mediation process?

You can say whatever you wish to say. However irrelevant information is discouraged. At the end of the day, you should assist the court with relevant information that would be of use to the mediation process. Sometimes bringing up the past and old issues would not be of much use to your mediation case. Badmouthing and trying your utmost to put the other parent in a bad light could be extremely damaging to your case. Focus on what is important on moving forward.

What evidence can you use in a custody case?

In a child custody case, the court needs to know that all relevant information was placed before it. This is so as the court would then be able to make a fair decision. You can use any evidence to prove your case. However, the evidence must be relevant. Dealing with the past or unresolved personal issues won’t be of much use to the court. Focus on the child and how either parent would best be able to care for the child.

How do you write a letter to a judge for child custody?

The courts have their own set of rules and procedure. Court procedures are usually commenced with a Founding Affidavit, followed by an Answering Affidavit, and then a Replying Affidavit. After you provided information via affidavit, you would give a copy to the other party. Letters can be provided, but it should be attached to an affidavit as an annexure.

Why do fathers walk away after a divorce?

Many marriages are stressful and the divorce is the final chapter. Not all fathers walk away after a divorce. If they do, it may be because they want nothing to do with the ex-wife. If there are children involved, then there would be a limited relationship with the mother. For example, should she have custody, then you may have to pay her child support and so on. Sometimes, the least contact you can have with your former spouse the better. Especially if the marriage was riddled with domestic violence.

What are the chances of a father getting full custody in South Africa?

The chances are high if he can prove that it would be in the child’s best interest. It does not mean that you are the father that you are entitled to have full custody. Some fathers never formed part of a child’s life and all of a sudden wants full custody. That does not make sense. The child does not even know the man. Under those circumstances, phased in contact should first take place.

What to do if your ex-partner or lover won’t let you see your child?

There may be good grounds why an ex-husband or spouse won’t let you see the child. One could be that the child does not know you, or you are a danger to the child. However, unless there is good grounds to refuse you contact to your child, such contact must take place. The type and duration of the contact may be in dispute. And the mother may set down the terms. If you are not happy with the refusal or the terms, you would need to approach the Children’s Court or the High Court.

What can I do if the mother keeps a child from the father?

For a mother to keep a child away from a father, she would need to have good grounds. For example, the child is being neglected by the other parent or is in danger. The father needs to approach the Children’s Court or the High Court. If the child does not know the father at all, and the father is a drug addict, then it may make sense to keep the child away from the father. Each case is different. At the end of the day, parents must do what is best for the child.

Who owns the child? The father or the mother?

No one owns the child. However, both parents have a legal obligation to care for the child. A court may grant one parent more rights over the child than the other. For example, one parent would care for the child during the week, and the other parent only on weekends. A court may also limit guardianship rights. For example, allowing only one parent to consent when it comes to a child’s school, passport application or travelling overseas.

Who has more parental rights?

Usually, both parents would have equal parental rights. However, a court can limit a parent’s parental rights. If the parents cannot agree on how to care for a child, a court can step in and limit certain parental rights if it deems so necessary. This it would do if it believes that it would be in the child’s best interest. For example, a parent cannot collect a child on weekends because the child is neglected when in that parent’s care.

How does child support work if the mother has no job?

If the mother does not have a job, then the father would have to support the child according to his means. However, in deciding what amount the father should pay, various factors have to be looked at. One needs to look at his income, expenses, assets and liabilities.

Can a father take a newborn child away from the mother?

He can if it would be in the child’s best interest. Usually, a newborn would be best cared for by the mother. However, if the mother is a big drug addict, or a drunkard and unable to care for the child, it may be ordered that the father care for the child.

Can a mother lose custody for cheating in South Africa?

Cheating and being able to care for a child are two separate issues. However, if the cheating affects her ability to care for the child, then it could affect her chances of retaining custody. For example, she is out whole night with different people.

At what age can the father take the baby?

It is always best for a child to be cared for by his or her mother once he or she is born. Mothers have a beneficial bond with the child after birth and would be able to provide the child with breastmilk and so on. Under certain circumstances, it may be best that the father cares for a child soon after birth. And in other cases, much later. A father can take custody at any age. Generally, the older the child, the easier it would be. At the end of the day, when deciding when a child should be taken care of by the father, the child’s best interests needs to be upheld.

How can a father win a child custody case in Cape Town?

A father can win a child custody case in Cape Town or any city in South Africa if he can prove that it would be best for the child to be in his care. There need to be facts to support a successful custody application. The father should be able to prove that he can care for the child better than the mother and that it would be best for there to be a change in custody arrangements. Earning more, or having a better car or home is not necessarily deciding factors when it comes to winning a child custody case.

What is considered an unfit home?

An unfit home is a home where a child is in danger or neglected. For example, there is alcohol laying around or a balcony where the child can easily fall from. Our law expects all parents to be the best parents they can be for the child. Not all homes are the same in South Africa. A fit home for one set of children may not be a fit home for another set of children. At the end of the day, as long as parents try their best to keep their children safe, that should be adequate to call a fit home.

How do I find an unfit parent?

Not all parents are fit parents. However, they are the parents of the child and need to care for him or her. Parents should try to become the best parents they can be for their child. As time evolves, they will become better and fitter at it. You may speak to social workers in your area who can advise you where to find an unfit parent.

How do you Co-parent with a toxic ex-partner or spouse?

Before a couple had a child, they would usually communicate well with each other. This would continue after the child is born until when the couple separates. At this point, the level of communication they had previously no longer exists. This is when their relationship could become toxic, or at least so for one of the parents. At this point, a child needs both parents to communicate well with each other. This is not only in the child’s best interests, but also would benefit the parents. It would be best to see a family counsellor with your ex to assist in co-parenting if this problem persists.  

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