South Africa’s divorce law is failing the country’s good fathers.
This is according to Errol Goetsch, the director of the Justice and Reconciliation
Centre, a nongovernmental organisation that seeks to protect children and preserve families in high conflict divorces.
He has coined the term “the windmill” to explain the sequence of black market litigation that often results in fathers being systematically cut out of their children’s lives.
The windmill – according to Goetsch, who has written about this phenomenon for his PhD thesis at the Wits School of Law – is a sequence of preplanned “dirty tricks” using violence, tactical accusations and “sham litigation” to win custody and money, and get revenge in the divorce by erasing a parent and “stealing a child”, and giving a lawyer and accomplices superprofits.
“There are different windmills for the different sexes of the children. For boys, the domestic violence windmill is usually used. For girls, it’s the sexual violence windmill. Both make allegations that this sort of abuse is being carried out by the father [in most cases] on the child, an interim protection order is granted on the basis of only an affidavit with no further proof needed, and the father is evicted from the house and denied contact,” Goetsch explained.
“Whoever gets to the law first wins, and this is where the law fails everyone. It trusts the accuser and punishes the accused.”
Out of the 150 cases on which Goetsch has worked, 80% were driven by women. After the interim order was obtained, Goetsch said an “ambush report” was prepared by a paid-for social worker who coaches the child to speak against their father.
“Children as young as six can be coached to affirm the alleged abuses. It’s as simple as telling them: ‘Remember when daddy shouted at mummy or hurt you?’ The lawyer then makes an appointment to see the family advocate at the high court – who is there to protect the children through a divorce – to institute rule 43, which is basically an interim divorce order and further cuts the father’s access to the child while they’re still ordered to pay maintenance.”
The sad thing about this rule, said Goetsch, is that once it’s granted, there can be no appeal. This means the father can be denied access to his child until the divorce is settled, and that could take up to three years.
According to Goetsch, it doesn’t stop there because the woman’s next move is to relocate.
He said part of the problem was that there was no oversight in the department of justice – the equivalent of an investigating officer to verify the allegations made.
“The separation of powers in the judiciary is also a weakness. What happens is people jump from court to court to get the outcome they want. I’m consoled that the SA Law Reform Commission has launched Project 100, which will look into care and contact with children during family disputes. The committee is looking at this with an academic perspective and these lawyers are using street smarts to circumvent the law,” he said.