Dhlamini and his wife Sizile (née Nyathi) whose divorce still hasn’t been finalised, appeared before Justice Fatima Maxwell, after Sizile approached the High Court on an urgent basis seeking restoration of custody pending a resolution of the issue of custody.
In her founding affidavit, Sizile narrated how she got married to Dhlamini in December 2008 and they bore two children in 2009 and 2012.
She told the court that following their separation in October 2020, she moved out of their matrimonial home with the children after they had agreed that she would have custody of the children until the issue of custody and access is resolved.
She claimed they agreed that Mbongeni would access the children on alternative weekends during the term and for half of the school holidays.
Sizile said Dhlamini took the children separately in February and September 2022, and has since refused to restore custody to her and denied her rights of access.
She further claimed that he had constantly ignored her invitation to negotiate the issues of custody and access.
Sizile also accused Dhlamini of turning the children against her and causing them to be hostile and disrespectful.
Dhlamini disputed that there was an agreement they made on separation, saying he never agreed to anything.
He argued that his wife is not a fit and proper person to be granted custody of their minor children.
He said their kids had difficulties adjusting to a new home, and Sizile subjected them to excessive beatings to scare them from expressing their desire to stay with him.
Dhlamini said the relationship between the older child and his mother had been so strained that he refuses to visit her.
Their younger child expressed his desire to move back and stay with his father permanently after the August school holiday last year, prompting him to take them back.
He said he does not deny Sizile access to the kids, and had even installed a landline phone at home for her to call them and for them to call her at any time.
Justice Maxwell ruled that because the children had been living with their father for over a year, it would not be in their best interests to move them prior to a determination of the custody issue in the divorce proceedings.
“Close to a year passed before the mother approached the court to reclaim custody.
“That passage of time is indicative of the fact that she did not see any danger to the children’s welfare posed by their being in their father’s custody, otherwise she would have approached the court soon after the children went into his custody.
“Considering the time that has elapsed since the children left their mother’s custody, I don’t believe it is in their best interest to move them prior to the determination of the custody issue in the divorce proceedings.
“Accordingly, the mother is not entitled to the relief sought,” read part of Justice Maxwell’s judgement.
The application was dismissed with costs. H Metro
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