Cape Town divorce lawyer Bertus Preller writes South Africa’s first Book on Divorce and Separation for the general public, published by Random House Struik

CAPE TOWN, WC, SOUTH AFRICA, August 7, 2013 / —

Everyone’s Guide to Divorce and Separation by Bertus Preller will help with the following crucial aspects: your rights when you get divorced in South Africa, and the monetary aspects relating to divorce (including the consequences relating to assets and the divisions thereof, spousal maintenance and support, parental rights and responsibilities of children, how to implement a parenting plan, how much child maintenance will likely be required, and how to file for maintenance and child support, the procedures to obtain a protection order when there is domestic violence or abuse, an unmarried father’s rights and how to acquire parental rights and the law on cohabitation, same-sex marriages, and how to draft a proper cohabitation agreement.
In the Foreword of the book, Judge Denis Davis says the following:

“Bertus Preller has filled a very significant gap with this timely book, in that in plain language, he provides a comprehensive guide to the broader community through the thicket of law that now characterises this legal landscape. Having said that, many lawyers, particularly those who do not specialise in the field, will also find great assistance in this work. Early on in the text, Mr Preller makes a vital point – litigation is truly the option of last resort in the event of a matrimonial dispute. The adversarial process which is the manner in which law operates is not at all conducive to a settlement of issues, particularly custody of minor children, which have a long-lasting and vital impact on the lives, not only of the antagonists but also the children who have not, in any way, caused the problem giving rise to the forensic battle. Often in my experience on the Bench, I have wondered how such vicious and counter productive litigation can be allowed to continue. Lawyers will point to clients, whose disappointment in the breakdown of the marriage now powers such adverse feelings to their erstwhile partner, as the core reason for the ‘legal fight to the finish’. Whatever the context, however, it is important that arcane and often incomprehensible legal jargon be made accessible to those affected by the law. In this way, ordinary citizens can ensure that their rights work for them and at the same time they are assisted to grasp fully the implications of the obligations that the law imposes upon them. – Judge Dennis Davis”

The book is on the shelves of all major book stores on and also at

About the Author:

Bertus Preller is a Family and Divorce Law Attorney and Mediator at Bertus Preller & Associates Incoss in Cape Town. He acts in divorce matters across South Africa He matriculated at Grey College, studied at the University of the Free State and the University of Johannesburg and was admitted as an attorney in 1989. He has nearly 25 years of experience in law. He was appointed as a part time mediator and arbitrator in 1996 by the CCMA. He has also been quoted on Family Law issues in various newspapers such as the Sunday Times and Business Times and magazines such as Noseweek, Keur, Living and Loving, Longevity, Woman and Home, Women’s Health, You, Huisgenoot and Fairlady and also appeared on the SABC television show, 3 Talk, Morning Live and on the 5FM Breakfast show with Gareth Cliff. His clients include artists, celebrities, sports people and high net worth individuals. His areas of expertise are Divorce Law, Family Law, Divorce Mediation, Parenting Plans, Parental Responsibilities and Rights, Custody (care and contact) of children, same sex marriages, unmarried fathers rights, child abduction and Hague Convention cases and domestic violence matters and international divorce law. He is also the founder of iDivorce an online uncontested divorce service.

Tel: 021 422 2461


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Divorce Attorney Cape Town
Bertus Preller & Associates Inc.

The Long Term Effects of Divorce on Children

More and more scientific information is being accumulated about the long-term effects that a divorce has on children. Until quite recently, most of what we knew was about the immediate or the so-called short-term effects of divorce, but long-term studies are providing more insights about the effects of divorce on the formation of intimate relationships and marriages in adulthood.

The major finding that gets the most attention is the slightly increased likelihood that children of a divorce will also divorce one day.

One interesting new report on the long-term effects of divorce on intimate relationships was conducted in Finland and reported in the Journal of Family Psychology (2011). A group of scientists at the National Institute for Health and Welfare and the University of Helsinki conducted a 16-year follow-up study of 1471 teenagers in one Finnish community. Ulla Mustonen and colleagues were surveyed the intimate relationships of these adults at 32 years of age and the role that parent-child relationships may have played in their adult relationships.

In keeping with past research, they found that children with divorced parents were somewhat more likely to be separated or divorced in young adulthood. Additionally, young women whose parents divorced were also less likely to have been married. Surprisingly, parental divorce showed no predictive relationship with divorce for young men.

On the other hand, there were a number of important findings about the ways in which parental divorce really affected young women. Though parental divorce itself did have a direct effect on young women’s chances of divorce, the major effect of divorce on young women was the mother-daughter relationship in adolescence. Parental divorce tended to undermine the mother-daughter relationship; however, when a positive relationship was maintained, this resulted in better self-esteem and satisfaction with social support in young adulthood, which contributed to better intimate relationships.

This finding means that one of the key factors in fostering the long-term well-being of children of divorce is through strengthening positive parent-child relationships. For this study, a positive parent-child relationship was more important for women than men, but the importance of these adolescent relationships should not be overlooked as we think about programs and policies to foster the long-term health of children.

These findings highlight a key direction for future research on the effects of divorce on children. The mere finding that these children may be more at-risk of difficulties should no longer occupy so much of our attention. The important work is understanding the factors within relationships and family process that contribute to these outcomes and identifying opportunities to buffer the negative effects while building on the positive factors. Much progress in improving children’s well-being is possible and deserving of more attention.

Article appeared in Huffington Post

Domestic Violence cause migraines

During the last decade, there was an increased interest in the possible link between Domestic Violence and migraines.

Domestic Violence is a pattern of abusive behaviours by one or both partners in a relationship. Domestic violence is a serious and preventable public health problem that affects thousands of South Africans.

In the February 2011 issue of the journal Headache, a magazine in the USA researchers studied a group of young women with migraine in Lima, Peru. Among those women, 47% had been victims of some sort of physical or sexual violence by their spouse or intimate partner, compared with 36% of young women without migraine. After adjusting for other potentially confounding factors, this study found that having been the victim of abuse increased your risk for having migraine by over 40%. If abused women also experienced symptoms of depression, they had over double the risk of having migraine.

What does this study tell us:

  • Nearly 2 of 5 women in this study had been abused by an intimate partner.
  • Having been abused makes it more likely that you will experience migraines.
  • Having been abused and having problems with depression more than doubles your risk of having migraines.

People who were maltreated as children, physically, emotionally, or both also have a higher prevalence of migraine, researchers say. Gretchen E. Tietjen, MD, of the University of Toledo in Ohio, and colleagues reported in three studies in the January issue of Headache: Journal of Head and Face Pain.

“Childhood maltreatment, in particular emotional abuse, is a risk factor for chronic migraine,” the researchers wrote, and the associations between maltreatment and pain “were independent of depression and anxiety, both of which are highly prevalent in this population.”

There is accumulating evidence that childhood maltreatment may lead to a host of chronic conditions and the researchers conducted a cross-sectional survey of headache clinic patients with diagnosed migraine from 11 outpatient centers.

They assessed childhood maltreatment via the Childhood Trauma Questionnaire and took a history of comorbid pain conditions including irritable bowel syndrome, chronic fatigue syndrome, fibromyalgia, interstitial cystitis, and arthritis.

The researchers also assessed depression and anxiety.

A total of 1,348 patients completed the surveys: 88% were women, with a mean age of 41.

In the first of the three studies, the researchers confirmed that childhood maltreatment was prevalent in migraineurs.

The prevalence among abuse types was as follows:

  • Physical abuse: 21%
  • Sexual abuse: 25%
  • Emotional abuse: 38%
  • Physical neglect: 22%
  • Emotional neglect: 38%

In terms of our law a protection order can be obtained at any Magistrates Court, you can get an interim protection order quite quickly by filling in certain forms, and that interim order will specify a date at which the final order will be considered (a return date). Once a final order is made, it is permanent and can only be changed by applying to the courts.

The kinds of protection you can get in a protection order include conditions that:

  • Your abuser must not commit any act of domestic abuse.
  • Your abuser must pay you rent, mortgage payments or other emergency money.
  • The police must seize any firearms or dangerous weapons in your abuser’s possession.
  • The police must go with you and help you to collect your personal property.
  • Your address must not be given anywhere on the protection order

About the author:

Bertus Preller is a Divorce Attorney in Cape Town and has more than 20 years experience in most sectors of the law and 13 years as a practicing attorney. He specializes in Family law and Divorce Law at Abrahams and Gross Attorneys Inc. in Cape Town. Bertus is also the Family Law expert on and on the expert panel of and is frequently quoted on Family Law issues in newspapers such as the Sunday Times and Business Times and magazines such as Noseweek, You and Huisgenoot, and also appeared on SABC television on the 3 Talk TV show. His clients include artists, celebrities, sports people and high networth individuals. His areas of expertise are Divorce Law, Family Law, Divorce Mediation, Parenting Plans, Parental Responsibilities and Rights, Custody (care and contact) of children, same sex marriages, unmarried fathers rights, domestic violence matters, international divorce law, digital rights, media law and criminal law.

Contact details

O: 021 422 1323

Domestic Violence – abuse may lead to murder

Domestic Violence, a threat to our society

The You and Huisgenoot Magazines recently asked my opinion and comment about a tragic murder that took place, when an ex-boyfriend killed his ex-girlfriend.  The story appears in the latest You and Huisgenoot magazines.

Catherine Krog (28) had overcome her addiction to drugs and turned over a new leaf for her three-year-old daughter, Bella.

She seemed confident and successful, had her own staff recruitment agency and tried to help friends who were addicts.

But the young mother knew that her ex-husband, Clint Walley (50), was stalking her and it was only a matter of time before he killed her, because no one could stop him.

Her body was found on 8 September in her Durban home. Next to her lay Walley’s body. He’d shot her in front of their daughter and killed himself.

So many people saw it coming, Cat’s parents, the mother and sister that she adopted, her private investigator, the police, friends, neighbours and relatives. Her ex-boyfriend was threatening and stalking her and facing charges for an unlicensed firearm, kidnapping their child and the court released him on bail of R 2000. The full story can be read in the YOU and Huisgenoot magazines of 16 September 2011.

Many abused women might feel they have no one to turn to for help, but divorce attorney Bertus Preller disagrees. “The law is there to protect you. There are many different legal avenues for victims of abuse to explore. Running away or continuing to endure the pain by staying in an abusive relationship are not the only problems. A restraining order is a court order designed to stop harassment. As a court order it prevents the abuser from contacting you or approaching you in any way. “If the abuser breaks the stipulations they can face a penalty or even jail time”. While the stipulations and restrictions in any order are different, violating it puts the culprit in contempt of court which means immediate arrest and the offender could be fined or sent to jail. “Usually the perpetrator will be arrested, taken into custody and will have to appear in court to explain why the order was violated. A suitable punishment, either a fine or prison sentence, will then be decided on”, Preller says.

Domestic violence and abuse can happen to anyone, regardless of gender yet the problem is often overlooked, excused, or denied. This is especially true when the abuse is psychological, rather than physical. Emotional abuse is often minimized, yet it can leave deep and lasting scars.

What is a domestic relationship?

You can have a domestic relationship with – someone you are or were married to; your parents or guardian; any family member(s); including your own child(ren); anyone you have lived with, whether you were married to that person or not; your life partner of the same sex; someone you went out with, even for a short time, or had sex with; or someone with whom you share a child.

What is domestic violence?

The following may be regarded as domestic violence:

  • sexual abuse (whether you are married or not);
  • physical abuse or assault (slapping, biting, kicking, and threats of physical violence);
  • damage to property or anything you value;
  • stalking (when the person follows or approaches you or your children repeatedly);
  • economic abuse, that is, when the other person keeps money to which you are legally entitled from you in
    an unreasonable manner by –
    • refusing to pay or share the rent or mortgage bond for the home you share; or
    • disposing of any property (household goods) in which you have interest, without your permission;
  • emotional abuse (that is, degrading or humiliating behaviour, including repeated insults, belittling, cursing and threats);
  • any other controlling or abusive behaviour which poses a threat to your safety, health or well-being.

What are my options if I am being abused?

You have the right to –

  • apply for a protection order at the nearest police station or
  • magistrate’s court; or
  • lay a criminal charge at the police station and apply for a protection order.

What is a protection order?

It is an order issued by a court at your request, ordering a person with whom you have or had a domestic relationship, to stop abusing you. It may also prevent the person from getting help from any other person to commit such acts. An interim protection order can also be issued at any time of the day or night for your protection.

Who can apply for a protection order?

Any victim of domestic violence may apply. Children, and if they are too young, a parent or guardian, or any person acting on behalf of someone who is responsible for them, but with their permission.

What can I do if an abuser disobeys a protection order?

Phone the South African Police Service. Thereafter a statement will be taken from you. Provide the police with the warrant of arrest you received together with the protection order (if you have lost it, apply at the court for another one). If you are in immediate danger the abuser will be arrested, otherwise the abuser will be given a notice to appear in court the next day.

About Bertus Preller

Tel: 021 422 1323

email: bertus(@)

Bertus Preller is a Divorce  Attorney in Cape Town and has more than 20 years experience in most sectors of the law and 13 years as a practicing attorney. He specializes in Family law and Divorce Law at Abrahams and Gross Attorneys Inc. in Cape Town. Bertus is also the Family Law expert on and on the expert panel of and is frequently quoted on Family Law issues in newspapers such as the Sunday Times and Business Times. His areas of expertise are Divorce Law, Family Law, Divorce Mediation, Parenting Plans, Parental Responsibilities and Rights, Custody (care and contact) of children, same sex marriages, unmarried fathers rights, domestic violence matters, international divorce law, digital rights, media law and criminal law.

Abusing a restraining order

Trivial pursuit

Noseweek – Issue #143, 1st September 2011

When mild-mannered Bishops old boy Colin Chaplin told his friends that  the surprise domestic-violence order the police had served on him at work was obtained by a woman he’d threatened to unfriend on Facebook, many found it hard to believe – there had to be a more serious reason.

Bewildered Colin Chaplin

Even more bewildering to the 36-year-old Chaplin is that the purported victim – a woman with whom he’d “shared a kiss or two” in the space of a week, years ago – said she’d been advised to seek the order by his ex-girlfriend, well-known Cape Town attorney Lauren Fine.

The spurned friend is fashion designer Danielle Vermaas, who uses the professional name of Danielle Margaux. Two years after his flirtation with Vermaas, Chaplin hooked up with Fine. Their six-month relationship ended amicably, he thought, in July last year.

“I just want you to know that I have done a search on you and I’m very anxious because you and my ex-girlfriend have several Facebook friends in common.”

The ease with which strangers can connect through mutual friends on Facebook – and the painful consequences for Colin Chaplin – are what prompt his anxious first words when he meets with Noseweek at a restaurant in Newlands, Cape Town.

Although lawyer-talk first alerted Noseweek to the story, it took some sleuthing to identify Chaplin, and then numerous emails through an intermediary, to set up this meeting.

Noseweek had been tipped off that two of Chaplin’s exes – Lauren Fine, a one-time ballerina and now a partner in a top Cape Town law firm, and Danielle Vermaas, a local designer who goes by the name of Danielle Margaux – had purportedly teamed up to have a Domestic Violence protection order slapped on him, on charges that were patently without substance.

A domestic violence order is no trivial thing but lawyers, policemen and even magistrates have all contributed to trivialising it. (See editorial in this issue).

Fine and her partners at well-known law firm Bernadt, Vukic, Potash and Getz have since been briefed about the facts of the case, but have refused to meet the victim of the outrage.

Chaplin finally agreed to see Noseweek as a last resort in a system that has failed him. “I’ve exhausted every avenue to clear my name,” he says.

After matriculating at Bishops, Chaplin went to England where he obtained an LLB (Hons) from the University of Buckingham. Back in Cape Town, he has for some years been working in the property development industry.

His story:
“Several years ago I met a girl called Danielle Vermaas at a dinner party. We became friends and kissed once or twice, but nothing serious happened between us. It was a very brief fling. I did not take it seriously from a romantic point of view. Quite simply, she is not my sort of woman.

Designer Danielle Vermaas

“After that and during early 2009, we remained friends. She’d sometimes visit me at my parents’ home and became very fond of my mother.”

Might Vermaas have been under the impression they were in an exclusive relationship? “No. It was just a fun friendship,” Chaplin stresses.

During the first half of 2009, Vermaas started “getting weird”, says Chaplin: sending him numerous emails, phoning regularly, and constantly sending Facebook messages.

“[As a fashion designer], she would make me clothes, invite me to functions, cook food and show up at my flat with it, unannounced. I always turned her down.

“In a nutshell, she was in love with me. I kept saying, I’m not interested. Basically, I was just trying to say f-off.”

Towards the middle of 2009, Chaplin says he decided to start putting some “serious distance” between himself and Vermaas. He produces Facebook messages sent to him by Vermaas to demonstrate the point:

On 15 March 2009 at 11.07pm: Hi there! How are you? I am lying in my bed and thinking…I miss you and miss having you in my life and I would love to have you back in it…I do have a lot of issues, I know, and I suppose I am a difficult woman at times…In the same breath, I could have made the biggest tit out of myself now, because you might have met someone else…Deep down inside I hope you miss me as much as I miss you!…I don’t want you to feel that I am pressurising you…

On 21 April 2009: Hallo Col, you must think I am crazy…I just read the mail I sent you on Sunday and it was a bit intense…It feels like my life is falling apart ...

On 13 July, 2009: Col, I don’t understand why you don’t answer my emails. Have you thought about what I said? I really think we’d be great together.

Later that day Chaplin  replies:  Hi Danielle, I feel we keep going over this. I think you keep misreading my friendship. I like you as a person but am just not interested in going out with you. Please just accept this as you are making things awkward. Colin.

On 18 July, 2009, Vermaas writes: You are obviously very angry with me and have decided not to contact me at all. I, on the other hand, am not a person of a few words, as you very well know and have decided to mail you, because I know you won’t even pick up the phone if I try to call you. I should probably just let you be, but…I have gotten used to spending time with you… You always say I am needy. Perhaps, but it is because I feel like the outsider in your life, the one you keep at a distance…

You’re probably thinking I’m some sort of psycho chick and that I keep contacting you in all sorts of ways, but… I do mean well…Hope to hear from you soon, Danielle x.

Vermaas’s overtures continued, accelerating in November 2009 when Chaplin began a relationship with Fine. When he speaks about her, it’s easy to see that this was a woman who clearly meant something in Chaplin’s life. “We had our first date on 17 November. Lauren is beautiful and intelligent.”

About a week after this first date, Vermaas arrived at a bar where Chaplin was having a drink with friends, and tried to speak to him.

“She followed me home and insisted we talk. She asked me whether I was going out with Lauren Fine and then said she knew I was. She knew Lauren was Jewish and told me her father was Solomon Fine. I didn’t know what she was talking about. It turns out that Solomon Fine was Lauren’s grandfather. How Danielle came by this information, I don’t know. Danielle also made some derogatory remarks about Lauren being Jewish. It took quite an effort to get rid of Danielle that evening. I had to repeatedly ask her to leave.”

“She started crying, and told me she loved me, saying she was going to leave the country as there was nothing left for her here. She continued to slag off Lauren, using anti-Semitic comments.”

The next day, a somewhat freaked-out Chaplin removed Vermaas as a friend on Facebook.

On 30 November, Vermaas writes: Hey Col, I am sorry for the things I said about your new girlfriend the other night. I just think you need to know that this girl is not for you. This relationship will not last. She is a Jew and they will not accept you. They are not like us. Lauren Fine, sy klink soos ’n Jood. I am telling you this because you need to know. Danielle.

The next day Chaplin responds: You need to leave me alone and stop saying bad things about my girlfriend  – she has done nothing to you.

After their showdown in November, Vermaas slowed down contact with Chaplin for a while, but a month or two later, she started sending more emails and Facebook messages.

“The tone was friendly – she claimed she wanted to be friends. She sent me a Facebook friend request [again], which I accepted. During December 2009 and January 2010, she made contact again. I did not respond as I was really in love with Lauren and did not think much about Danielle. She contacted me a few times in 2010 It all seemed harmless.”

For example on 1 January 2010, at 4.28pm, Vermaas writes: Hi Colin, haven’t spoken to you in a while and I thought it well to wish you all the best of luck for 2010…and especially with you starting a new job on Monday…good luck! I know that you will make a great success of it….

Chaplin and Fine dated from November 2009 until the end of June 2010, when they split up. He stresses that it was an amicable parting: that she had wanted “space”.

“There were no bad feelings between us. Everything was cool. In fact, she susequently sometimes asked me for my help, which I gave her freely.”

When her mother was diagnosed with a serious illness a few weeks later, Colin was among the first she told, and he was there to support her.

But this is where it gets really weird, he relates.

“In early August 2010, a month-or-so after his relationship with Fine ended, Vermaas started “causing problems again” on Facebook. This included sending friendship requests to female friends on his site. “They would call me, asking who is Danielle Vermaas? Why does she want to be my friend? I sent her an SMS asking her to stop, or I would remove her as a friend from Facebook. I felt she was up to no good.”

It gets weirder, he says, because,  within a week, Fine suddenly blocked him on Facebook.

“I sent her an SMS asking why she had done this, but she did not respond.”

Chaplin suspected that, some time between 6 and 12 August, Vermaas used Facebook to establish that Chaplin and Fine were no longer dating, that she then contacted Fine with the intention of causing trouble and driving a final wedge between them. [He would be proved correct – but that only comes later – Ed].

“Whatever Danielle told her, Lauren did not check with me whether what she had been told was true. I was confused and hurt as I couldn’t think of anything I had done wrong to her.”

Chaplin, in the meantime, had maintained a friendship with Fine’s mother. “I would occasionally call on her –  always by prior appointment – to take some flowers or just for a chat. She is a Mills & Boon addict. I started writing a Mills & Boon-type romance and would take bits of the manuscript to her for proofing; really just to entertain her.”

On 27 September 2009 he arranged to visit Fine’s mother and took her some fluffy white slippers and some bath salts. He hadn’t visited in the previous three weeks, prompting her to ask whether he’d been away.

“She asked if it was true I’d been dating another girl at the same time I was dating Lauren. She named Danielle Vermaas. I denied it emphatically. I explained that I’d had issues with Danielle before and that I’d always loved Lauren.”

Now he knew for certain that Danielle had contacted Lauren.

And, within no time he also knew that Lauren had rushed to tell Danielle that he knew. Because, within an hour they’d spoken to each other.

Within an hour of his visit to Mrs Fine, Chaplin received a hostile message from Lauren Fine – the first communication he’d had from her since her birthday three weeks earlier: “It’s time to move on now and leave me and my family alone. Please don’t contact me and my family again!”

(Later that evening, Lauren Fine SMSed him again: “Hi Colin. I apologise for my earlier SMS. I am really not in a good space. I do, however, think it is best for you to move on.”)

Next day, it was Vermaas sending Chaplin and his mother an SMS, asking to meet. (She also got a friend to ring his mother with the same message.) All these messages were ignored. But that was hardly reason to anticipate the shock of what came next.

Three days later Chaplin got a call from the manageress at his office: the police had called, looking for him.

For an outstanding parking ticket?

No, much more serious. In fact, the office manageress told him, the police had warned her that he was to be considered dangerous. They wished to serve a restraining order on him in terms of the Domestic Violence Act.

Danielle Vermaas had filed for a protection order (a kinder title for the same thing) against him on the 28 September – the day after Mrs Fine had revealed to him that Vermaas had contacted her daughter and had claimed he’d been double-dating them.

“The day before she filed for the order against me, she wanted to meet me. It was the most bizarre thing. When she filed for the restraining order, she told the police that I was to be considered violent. She gave them my work number and my work address. The police then made several phone calls to my office.

“My head just spun.”

Chaplin runs through the haze of what ensued over the next few days. His employers said they were concerned about how clients would react to the information. “I didn’t make a big deal of it. I just quietly left. What was I going to do?

“I then had to present myself at the Cape Town Police Station with my parents to sign for receipt of the order.

“I looked at  Danielle’s statement and couldn’t believe my eyes. It was all bullshit. The reasons she gave for wanting the restraining order were that I was a dishonest person who did not pay tax to SARS. She then cited an SMS from two months earlier, in which I threatened to remove her as a friend on Facebook if she did not leave me alone.”

He continues: “It was insane. There was one other thing: at the bottom of the application, she said the reason she was filing was that she had been advised to do it by my ex-girlfriend, Lauren Fine. I can’t describe how I felt. It made no sense.

“So now I have no job, somebody has a restraining order against me for no reason, and I hear that my ex-girlfriend,  someone I’ve only ever been kind to, is involved.”

Danielle Vermaas’s application for a protection order – Noseweek has obtained a copy –  is too long to reproduce here. Some excerpts:

  • A few weeks ago he sent me a sms saying “stop this facebook crap with La. If I find anyone on her site tmrw who is not meant to be there my reaction will be extreme.” … on the 12th August 2010 one sms read (because I did not respond): “Call me in the next 5 mins or I am removing you permanently.”
  • I received a call from Lauren Fine…She is a lawyer…She suggested a restraining order.
  • I am an honest and trustworthy person who does not manipulate people. He is not an honest person as he does not pay taxes to SARS.
  • Please grant a restraining order, because he clearly despises me and I am scared.

Based on this affidavit, Magistrate Van der Spuy granted an interim protection order against Chaplin on 29 September. It reads, in part: “The respondent [Chaplin] is ordered not to commit the following acts of domestic violence: verbal, emotional, psychological abuse; not to harass, intimidate the applicant…not to communicate with the applicant at all, except through the courts or legal representatives”.

The order had been granted without notice and without Chaplin having been given a hearing – a fact that irks him about the nature of restraining orders and the ease with which they are granted. “It’s bizarre. The man is simply presumed guilty. It’s a case of ‘better safe than sorry’.”

Confused, but determined to get to the bottom of things, Chaplin contacted law firm Abrahams and Gross for advice. The attorneys took one look at the affidavit and told Chaplin he had a serious problem.

“They said there were no grounds for a restraining order, but that it was essential to get it dismissed as soon as possible. They said that Vermaas could try to deliberately manufacture a breach of the order which would mean I could be arrested and go to jail.

“My lawyers filed an opposing affidavit. It was quite simple – address each lie and show that the last contact you had with her was two months before she filed.”

Chaplin was able to provide tax records to show that, in fact, he had overpaid tax and had actually received a refund from SARS.

Chaplin’s answering affidavit is also in Noseweek’s possession.

Excerpts include: “The application is… ill-fated and amounts to a mockery of the true objectives of the Domestic Violence Act…Applicant and I never lived together in a relationship or partnership of any sort. [She] was merely a friend like all the other male and female friends that I have… [If] the scope of the Domestic Violence Act were to extend to an area as in this case…any confrontation in the normal scope of a friendship could be construed as domestic violence, with absurd consequences.”

His answering affidavit details how Vermaas sent “friend” requests to Chaplin’s friends on Facebook, which prompted him to tell her, in August 2010, that he was “permanently removing” her as a friend on Facebook. He says, “It is astonishing to note how the Applicant is distorting the true facts by using the phrase to mean that I have committed some sort of Domestic Violence against her”.

A lawyer from Abrahams and Gross attended the magistrate’s court, where he served the opposing affidavit on Vermaas.

Chaplin’s attorneys said they wanted to move to a court date. That was when Vermaas said that she wanted none other than Lauren Fine to represent her. Chaplin’s attorney reported: “[This} will be a complete disaster simply because Ms Fine will be a witness in the matter and I can see no reason why Ms Fine will want to get involved. Ms Vermaas also indicated that her main concern was that our client [Chaplin] was badmouthing her in and around the Jewish community from which she obtained most of her work.”

The next court date was set down, for 3 November last year, which left Chaplin with the interim order hanging over him and the cost of yet another court appearance.

On the return date, Vermaas showed up with an attorney – not Fine – and changed her tune once again. “Now she was asking for a restraining order requiring me to stop stalking her.”

Chaplin laughs bitterly: “I don’t even know where she lives or works and hadn’t seen her in 11 months. She  just wanted me to be found guilty of something”.

Chaplin received the following confirmation from family law attorney Bertus Preller on November 3: “I wish to confirm that Ms Vermaas has withdrawn her application. Initially she wanted an apology and an agreement that you won’t stalk her in future, which we naturally refused and we demanded that the matter go to trial, however, her attorney backed off and withdrew the application.”

When the attorneys phoned him with the good news that the application had been withdrawn, Chaplin heaved a sigh of relief. “I thought, phew, it’s all gone away.”

Chaplin goes on: “So, the application is dismissed, she walks out. At this stage, one side of me is relieved, as the stalker girl is gone, but another part of me feels aggrieved. Firstly, I had incurred unnecessary legal costs – I had stopped counting at R20,000. Secondly, I was furious that an unsubstantiated order had been brought against me by ‘a woman scorned’ who lied to the court, and thirdly, I could not understand why Lauren Fine had become involved. I could not think of a single thing I had done against her. The only thing I was guilty of was doing good things for her and her family. In return, she branded me with the stigma of a domestic violence charge which never goes away. People just think that you go around beating up women.”

Two weeks ago, Chaplin asked a woman out. “She had heard this story that I threaten women. Cape Town is a small place.”

He can’t imagine having a normal life and a normal relationship. “To be honest, women scare the shit out of me at the moment. I have no plans to date any women for the foreseeable future.”

Asked for comment on how on earth Chaplin had an interim protection order slapped against him on the basis of that application, Magistrate Van der Spuy referred Noseweek to Linda Unuvar, Judicial Head of the Family Court in Cape Town. While reluctant to comment on an individual case, Unuvar said:

“This is an affidavit. [In Danielle Vermaas’s case, it appears to have been an unsigned statement. – Ed.] If  a person takes an oath and says I have been threatened, and claims that someone is calling her at all hours and upsetting her emotionally, that is harassment. If she says under oath that any act of domestic violence is committed, the court must grant an interim protection order. That includes harrassment, intimidation, unwanted calling or SMSing. Even if such harassment is the only complaint, it still warrants an order.”

Unuvar said that once the order is served on the respondent, “the respondent can come to court and say, ‘this was served on me and it is not true, I want to bring the return date forward within 24 hours’. We give him the earliest available date. If it is urgent, we will hear it”.

Unuvar said there would have been nothing stopping someone in Chaplin’s position from asking for a counter order against his accuser and saying that in fact, he was the one being emotionally abused. “He would have had that right. He should have anticipated the hearing and asked the court for a protection order against her. We would have had a hearing within a few days.”

Unuvar stressed that protection orders are not granted if the court is not satisfied that some form of domestic violence has been committed. “If an interim order is granted, and, on the return date, the court is not satisfied, it will not confirm the order.”

Abuse of the system is the exception, she added. “We are all trained and experienced magistrates, but we do not know whether somebody is lying under oath.”

Vermaas had this to say to Noseweek: “I have spoken to my lawyer and have decided not to comment. I am very busy and am not going to invest any time in this.”

And Lauren Fine? She agreed to meet a reporter from Noseweek at a coffee shop near her office, and arrived accompanied by her colleague, Mia Gibson. The answers she gave to Noseweek’s questions do not always tally with the documentary evidence that Noseweek has seen, and were aimed at generally discrediting Chaplin, while minimising the interaction she’d had with Vermaas and her role in the latter’s application for the protection order.

The closest Fine had got to giving Chaplin an explanation for her involvement in Vermaas’s application came in a letter she wrote to his mother shortly after the order was granted. Some extracts:

“I am sure you can understand the tension it caused when he would visit my mother and she would not tell me that he’d visited. I would hear from Trayer (my mother’s domestic worker) that he had visited and what had been said. I did not make a big deal out of this as I didn’t want to upset my mother and I assumed Colin was visiting with only good intentions.

“On 28 September I phoned home only to be told by Trayer that Colin was there again and talking to my mother about me. This upset me, as my mother had mentioned the day before that having visitors was very tiring. …When I came home … my mother confirmed … that Colin had made certain derogatory remarks about Danielle, which I do not believe to be true.

“Since I had been advised by Danielle that Colin had threatened her in the past – and I now knew he was aware that she and I had made contact… I did telephone Danielle, and I told her that if Colin were to threaten her with any further legal action, she should contact me to discuss it.

“Danielle advised me that she was scared Colin would harm her and she was thinking of taking out a restraining order… I advised her (as I would with anyone) that if she genuinely felt threatened… then she should get a restraining order. She asked me to assist her and I told her that she should ask the police…

“I am certain that the contents of this email…will be upsetting to you. I have not forgotten the beautiful things that Colin has done for my family and me, but I have had equally numerous unpleasant experiences involving Colin…

“Wishing you and Colin only the best. Lauren.”

Now, she told Noseweek that he was “weird”, that friends had told her he was an alcoholic (she confirmed that he had never consumed alcohol or smoked in her presence throughout their relationship in deference to her wishes, but now believed this to be a sign that he was “obsessive”); she said he was a “stalker” since friends had told her they had seen him “lurking” near her office and she believed she had seen him “lurking” downstairs from her Sea Point apartment; that he kept visiting her mother “day and night” just to irritate her [Lauren]; that she had shown his “Mills and Boon” manuscript to a psychologist and a psychiatrist she knew and they had both described it as “abnormal, verging on psychotic”. [She sent us a copy, which I read in lurid anticipation, only to find it pretty harmless, even good, as Mills and Boon novels go. My diagnosis: that psychologist and psychiatrist must be “verging on the psychotic” – Ed.]

But, she emphasised, what really upset her were Chaplin’s “endless” lies. [i.e. don’t believe anything he tells you? – Ed.]

Did she herself have any reason to believe he might be violent? “Yes.” Why? “When he got angry, he would just get up and leave.”

Later Fine would add to the list that a “good friend” had recently told her Chaplin had plans to abduct her.

Chaplin’s retort: “What am I supposed to do with her, once I’ve abducted her? It is becoming increasingly clear that in order to justify what she did last year, she has attacked my character by spreading rumours and lies about me. I have now been accused by Lauren of being a liar, capable of irrational behaviour, an alcoholic, a cheating bastard and most recently an abductor. The last is just ludicrous.”

And what about Danielle Vermaas? Noseweek asks Fine.

“She contacted me on Facebook and we arranged to meet. We compared notes and worked out that Colin had been cross-dating us. She told me Colin had sent her a “weird” sms threatening that if she did not leave me alone, I [Lauren] was going to bring court applications against her. [Vermaas has not produced any evidence to support this allegation. – Ed.]

“I told her, if he threatens you like that, rather phone and ask me what the true position is.”

Fine explained her involvement in Vermaas’s protection order. “Danielle called me on my cell phone when I was in the car rushing to Rondebosch to attend the HPCSA hearing of Sylvia Ireland’s former psychiatrist, Dr Berrard. She told me that Colin had threatened her – I wasn’t interested how – and that she was really frightened. She asked if she could get a restraining order. I said yes, if you’re scared. She asked if I could help her, but I said no, I don’t practise criminal law and I don’t want to get involved. I wouldn’t know where to start. I suggested she go to the police. It’s the advice I would have given to anyone.”

That was it? All on the spur of the moment?

“That was it.”

Surely the evidence suggests Vermaas had been “stalking” Chaplin, rather than the other way around? “Yes, they’re both weird. I want nothing more to do with either of them.”

Hold that thought for a moment. Because this is when the local version of WikiLeaks – an anonymous website hacker of sorts – steps in to really stir things up. Immediately after the restraining order was served on him, Chaplin spent many evenings at his favourite pub mulling over the mysteries of the case with his friends. Somebody obviously knew somebody, because three months after the event, says Chaplin, a parcel of web printouts appeared in his postbox. They were of Facebook messages that Vermaas had sent to various friends in a plot to cause trouble between Chaplin and Fine.

It transpires Chaplin was right in suspecting that something fishy was up early in August 2010. The printouts show that on 5 August she sent a note to her friend Rasheda Samuels: “I see you are friends with Miss Fine whahahahaha” and she asks Rasheda: “so tell me – are they still a married couple ?????”.

On 9 August she writes to her friend Gustav Louw who has also befriended Fine on Facebook: “My fuck Gustav, I see you are friends with Lauren Fine!!!! This calls for an evening of champagne and snooping on her Facebook site!!!!”

The proposed evening of champagne and snooping appears to have paid off. Next day she was writing to Fine:

“I would normally not email someone I don’t know, but I had a very strange email from your boyfriend Colin tonight. He seems upset about mutual people we know on Facebook and implies that I have got something to do with this… [Chaplin found she was approaching Facebook friends he had in common with Fine and told her to lay off, or he’d unfriend her. – Ed.]

“What you do, your relationship and friends have nothing to do with me. I have no issues with you being his girlfriend now.

“I suppose this is as strange for you as it is for me. Good luck! Danielle.”

Every line was a lie, but Lauren took the bait.

Fine’s reply: “Dear Danielle, Colin is not my boyfriend and has not been for a while. Whilst we were together he did tell me that you wanted him back but I never commented. I would like to meet for a coffee. There is much I would like to discuss.”

Danielle’s happy reply: “I should also like to meet up with you for a chat. I am rather shocked now, but we can discuss everything when we meet.

Lauren’s reply: “Cool, Friday after work.”

That weekend Fine “unfriended” Chaplin on Facebook.

Also amongst the “hacker’s” printouts is the anxious message sent by Fine to Vermaas on 27 September: “Need to chat urgently.”

Two hours later Vermaas writes: “Thanks for calling me…I would like to discuss with you sometime what the procedure is with regards to getting a restraining order. I think it would be better if I get it, before he does something…I had a bad feeling ever since I met him. Let me know when you will be available to discuss the restraining order, as I am very serious about it. Perhaps it would be in your best interests to get one too!”

Fine’s reply: “I have no idea how to get a restraining order, but will find out. Let’s do coffee.”

So, not quite the rushed conversation while driving, then.

Fine told Noseweek that Chaplin had given lawyer Mia Gordon copies of several of these illicitly obtained Facebook printouts. But, she said, she was not at liberty to show them to us as they were the subject of a police investigation. The police, she added ominously, believe they know the address from which the Facebook interloper operated.

Matters get stranger still: between February and May this year, Fine’s Facebook friends started receiving abusive messages about her, all emanating from Vermaas’s Facebook address. A sample: “How’s your stupid Jewish friend now. She’s a loser.”

She addressed a lawyer’s letter to Vermaas demanding that she immediately stop sending these messages and threatening court action.

Vermaas’s lawyers responded by saying that someone had pirated Vermaas’s Facebook site and that her friends, too, had been receiving abusive messages. And that she had already reported the matter to the police.

So who’s up to no good now? And who’s trying to mislead whom?

Copyright © 2011

Bertus Preller is a Divorce Attorney in Cape Town and has more than 21 years experience in most sectors of the law and 14 years as a practicing attorney. He specializes in Family law and Divorce Law at Abrahams and Gross Attorneys Inc. Bertus is also the Family Law expert on and on the expert panel of and is frequently quoted on Family Law issues in newspapers such as the Sunday Times, Sunday Tribune and Business Times as well as magazines such as Noseweek, You and Huisgenoot. His areas of expertise are Divorce Law, Family Law, Divorce Mediation, Parenting Plans, Parental Responsibilities and Rights, Custody (care and contact) of children, same sex marriages, unmarried father’s rights, domestic violence matters, international divorce law, digital rights, media law and criminal law.

Domestic violence and Facebook

Domestic violence and Facebook

I recently acted in a matter wherein I defended a client on a domestic violence charge who “un-friended” an ex-girlfriend on his facebook profile. After informing his ex that he was going to “delete” her as a friend she approached the magistrate’s court in Cape Town and obtained a restraining order against my client.  She worded her affidavit in support of the interim protection order in such a “creative” fashion that the Magistrate assumed that “delete” actually meant something more serious, possibly a threat to her life. In Domestic Violence cases an applicant usually obtains an interim interdict (without the other party being at court) with a return date upon which the Respondent is called upon to give reasons why the interdict should not be made final. The problem with such orders are that any violation of the order may result in a Respondent being arrested by the South African Police. In my client’s opposing affidavit on the return I stated the following:

The application is… ill-fated and amounts to a mockery of the true objectives of the Domestic Violence Act…Applicant and I (Respondent) never lived together in a relationship or partnership of any sort. [She] was merely a friend like all the other male and female friends that I have… [If] the scope of the Domestic Violence Act were to extend to an area as in this case…any confrontation in the normal scope of a friendship could be construed as domestic violence, with absurd consequences.

Needless to say the ex had to withdraw the application due to the fact that there were simply no grounds to obtain a final order. The case triggered media attention in Noseweek and the editor noted the below.  The full article appear in the September issue of Noseweek and will meet the reader with a shocking example of the trivialisation of domestic violence as you’re likely to find – not to speak of the terrors that lurk on Facebook!

Noseweek Issue #143, 1st September 2011

In considering why a man accused of domestic violence might be stripped of his constitutional right to be presumed innocent until proved guilty at a fair trial, Judge Albie Sachs (in a 1999 Constitutional Court judgment) sought guidance from various authorities on the subject. It is clear from the authorities he quoted that what they all have in mind, when speaking of domestic violence, is ongoing, serious violence – or the threat of it – in the intimate, often hidden context of a “domestic relationship”.

So American authority Donna Wills states that “domestic violence is the leading cause of injury to women, a major factor in female homicide, a contributing factor to female suicide, a major risk for child abuse, and a major precursor for future batterers and violent youth offenders”.

South African author Joanne Fedler talks of “intra-family” offences, that include arson, assault,  threats to do bodily injury, obstructing justice, cruelty to children, incest, kidnapping, murder, culpable homicide, rape, forced prostitution, unlawful entry on to property, malicious damage to property, stalking, theft, robbery, unlawful possession of a firearm, involuntary sodomy, extortion, blackmail and sexual assault.

Any magistrate or legal practitioner that rates a man threatening to “unfriend” an interfering ex-girlfriend from his Facebook page on the same scale as the offences listed above is exposing himself and the law to ridicule.

Judge Sachs’s understanding of the nature of domestic violence is fairly mirrored in public perception: when most people hear that a man has been served with a “restraining” or “protection” order in terms of the Domestic Violence Act, they immediately visualise a pathetic woman bruised and beaten to within an inch of her life, surrounded by weeping, traumatised children – and somewhere skulking in the shameful shadows, an out-of-control, violent, probably drunken brute.

The stigma that attaches to such an order is probably only paralleled by a charge of paedophilia.

The law was designed to provide emergency relief to women in imminent danger of life-threatening physical or ongoing emotional abuse by someone with whom they are, or have been in a “domestic” relationship. Police and magistrates are empowered to come to the immediate aid of such women by issuing interim protection orders without prior notice to the accused person.

Interim orders in terms of the Act are,  therefore, issued pretty much on the woman’s say-so. Which is all the more reason why those entrusted with carrying out the law must do so sensibly and with great care.  Inter alia they must take care to ensure that the reasons advanced by the applicant are not frivolous, and that the problem, if there is one, might not be solved in a way less prejudicial to the accused.

It has been disconcerting to discover that there are a growing number of cases where the legal “short cuts” provided by the Domestic Violence Act, and the stigma that a domestic violence order carries, have been abused by unscrupulous lawyers and vengeful, “scorned” women to punish or blackmail their ex-lovers or, more often, as a cheap and nasty way to gain leverage in a divorce action.

The weakness in the system that unscrupulous lawyers have found and are exploiting is really a failure in the administration of justice: too often the police charged with processing these charges, have so little interest in them that they simply rubber stamp any statement that is handed in by a woman who alleges she is “fearful” because she has been “threatened”, without making any attempt to establish the nature and seriousness of the threat, or to establish just how real and imminent the danger might be.

Too many magistrates are in turn  routinely endorsing the applications by issuing “interim” protection orders – the interim nature of the order offering them an “out”: why, a man wrongfully restrained need simply come to court on the return date and have the order set aside! Never mind the scandal and reputational damage he will undoubtedly have suffered in the meantime. And the legal costs involved. And all the postponements in a congested court system, so that, in the real world, it could be months before he gets his day in court.

Even more serious: in the process they are trivialising domestic violence and, ultimately, undermining public confidence in a law that was enacted to deal with a really terrifying and all too pervasive social problem. Our cover story on page 10 is, in my view, as shocking an example of the trivialisation of domestic violence as you’re likely to find – not to speak of the terrors that lurk on Facebook!

The Editor

Copyright © 2011

About the Author

Bertus Preller is a Divorce and Family Law Attorney in Cape Town and has more than 20 years experience in most sectors of the law and 13 years as a practicing attorney. He specializes in Family law and Divorce Law at Bertus Preller & Associates Inc. in Cape Town. Bertus is also the Family Law expert on and on the expert panel of and is frequently quoted on Family Law issues in newspapers such as the Sunday Times and Business Times. His areas of expertise are Divorce Law, Family Law, Divorce Mediation, Parenting Plans, Parental Responsibilities and Rights, Custody (care and contact) of children, same sex marriages, unmarried fathers rights, domestic violence matters, international divorce law, digital rights, media law and criminal law.

Interview with Bertus Preller, a celebrity divorce attorney based in Cape Town

Business Times Interview – by Adele Shevel

Maria Shriver’s doing it; Tiger Wood’s wife did it. Making the decision to terminate a marriage is a tough one, and the chances are it’s followed by an even more traumatic lead-up to the divorce.

Shriver and Woods are very wealthy, their husbands hugely successful, and high profile infidelity was peppered into the mix. But it’s not only the rich who need to ascertain the financial situation of their husbands.

Women are encouraged to gather as much financial information about their husband’s financial affairs before the divorce proceedings commence, to establish the magnitude of the estate.

Bertus Preller, a celebrity divorce attorney at Abrahams and Gross in Cape Town provides guidance as to how to get your affairs in order before making that final call.

“It’s extremely important for any woman to know what’s going on in her husband’s financial affairs. It’s difficult when you don’t have access to his share portfolio or balance sheet, but one must reasonably expect to get an idea of financial affairs.”

An attorney cannot negotiate on behalf of a client without knowing in advance what the estate is worth.

In many divorce settlements, the wife ends up seeing what the estate is worth after it takes place.

  • Make copies of your husband’s bank statements, credit card statements and get hold of the short-term insurance policies as well as copies of pension funds and retirement funds. This will provide input on the extent of assets available and the value of the estate.
  • Build a clause into the settlement agreement to say if any assets that come to light after the divorce settlement, the wife is entitled to 50% of those assets and the husband will have to pay the legal fees involved in this process.
  • A more accurate sense of assets will come to light if the divorce is contested as parties are required to disclose any information to do with financial affairs. The husband can be required under oath to make full disclosure of his assets, and it is perjury if he doesn’t.
  • Women are advised not to leave the matrimonial home if children are involved, because it provides a sense of stability for the kids. It’s better for the husband to leave. If he makes himself guilty of abuse, the wife can get a restraining order to evict him from the property. In some instances, the husband can be restricted from accessing certain parts of the home.
  • Where the parties are married in community of property the wife is entitled to half the pension or retirement annuity fund. In a marriage out of community with the accrual, the pension fund will be regarded as part of the husband’s assets for purposes of calculating the accrual.
  • In terms of the Divorce Act, the wife (if married in community of property) can choose to ask for the pension fund money to be paid in cash, or transferred to a pension fund of her choice.  Normally pension funds pay out the wife’s portion in 3 to 6 months after the divorce. Wives of employees for the SA government have had to wait for her husband to resign or die before she could access her portion of his pension. But this might change — a judgement issued this month said it was unconstitutional for the wife of a government employee not to be allowed to access his pension following a divorce.
  • Make a list of your monthly income and expenses, as if you’re going to live on your own with your children. It’s important because you get situations where the wife is not working or earns much less than the husband and doesn’t have the money to fight a divorce battle.  She can bring an application pending a divorce, for interim maintenance, which means contributing maintenance before the divorce is finalised. She can also apply for contribution to her legal expenses. If interim-maintenance is granted and the husband does not comply with the court order, he is in contempt of court.
  • In some instances the wife can apply for emergency monetary relief in the magistrate’s court pending the institution of an application for interim maintenance by utilizing the provisions of the domestic violence act because the husband has blocked the use of credit.
  • Interim maintenance falls away once the divorce order is granted. There have been situations where the wife has been granted very favourable interim maintenance terms, so she stalls the divorce in order to continue getting a hearty amount of money each month.
  • The granting of interim maintenance divorce cannot be appealed. The only way the husband can minimize this is if he goes back to court and explains and proves that his financial situation has changed so much that he’s entitled to a reduction. But this does not happen easily.
  • Many battles in a divorce surround the children. Normally the wife is the parent of primary residence and the husband the parent of alternate residence. Increasingly, there’s a shared parenting approach with children staying with the mother for a week and then the father for a week and each party takes care of the children during that period.  “We see a lot of children used as a weapon. I tend to immediately get a parenting plan in place, and register that with the family advocate and stipulate that if issues arise with parenting and the children they need to go to a psychologist or a social worker”.
  • In matters where money is not fought over, it may make financial sense to go to one lawyer who can work for both parties. But a divorce that is acrimonious requires that each party needs a lawyer to assist.
  • A few mediation organizations exist where people can see a mediator to resolve disputes, to settle with both parties. The mediator doesn’t have the authority to issue and award damages but he can facilitate the process. If an abusive husband is involved, mediation is unlikely to work.  But it can work if the divorce is not acrimonious. Parties have to pay. “Sometimes this route can be more expensive than an uncontested divorce, depending on the amount of sessions that the parties have to attend” says Preller.
  • Where a couple owns a property together, they need to decide whether both parties want to keep the interest in the property, sell the property and split the proceeds, or whether one wants to buy out the other. The decision has financial implications because of transfer duties and tax.
  • It’s important to consider instances where the husband has no assets. A policy should be taken out in the event that the husband passes away and there is no money to help cover maintenance, in case of his death.

“The decision to divorce is a business decision. You need to look at what happens until the children turn 21, that there’s maintenance, medical cover for them, a school education and whether it’s government or private school and tertiary education,” says Preller.

About Bertus Preller

Bertus Preller is a Family Law and Divorce Attorney based in Cape Town and has more than 20 years experience in most sectors of the law and 13 years as a practicing attorney. He specializes in Family law and Divorce Law at Abrahams and Gross Attorneys Inc. and deals with Family and Divorce matters across the country.Bertus is also the Family Law expert on and on the expert panel of and is frequently quoted on Family Law issues in newspapers such as the Sunday Times and Business Times. His clients include celebrities, actors and actresses, sportsmen and sportswomen, television presenters and various high net worth individuals.

His areas of expertise are Divorce Law, Family Law, International Divorce Law, Divorce Mediation, Parenting Plans, Parental Responsibilities and Rights, Custody (care and contact) of children, same sex marriages, unmarried fathers rights, domestic violence matters, digital rights, media law and criminal law.

Bertus also has a passion for gadgets and technology and he co-pioneered the development of technology in which the first book in the world was delivered to a mobile phone utilizing sms and java technology and also advised a number of South African book publishers on the Google Book settlement class action and negotiated contracts with the likes of Google and

He specializes in Divorce Law, Family Law, Divorce Mediation, Parenting Plans, Parental Responsibilities and Rights, Custody (care and contact) of children, same sex marriages, unmarried fathers rights, domestic violence matters, international divorce law, digital rights, media law and criminal law.

Domestic Violence – the role of the Police

The role of the police in fighting acts of domestic violence

Domestic violence and abuse can occur among heterosexual couples, same-sex couples, as well as any people living together in the same household. It is important to note that while women and children are the most victimized, men are also abused, especially verbally and emotionally, although sometimes physically too. Domestic violence occurs in all age ranges, ethnic groups, and class levels.

In the past, the police have been criticized for not responding adequately to cases of domestic violence. In an attempt to rectify this, the legislature enacted the Domestic Violence Act 116 of 1998 (the Act). Legislators placed particular obligations on the police in the Act in an effort to challenge their long history of neglect of domestic violence cases (Lisa Vetten ‘Addressing domestic violence in South Africa: Reflections on strategy and practice’ This article takes a look at the role that police officials should play in domestic violence cases.

The Domestic Violence Act

The aim of the Act, as stated in its preamble, is

‘to afford the victims of domestic violence the maximum protection from domestic abuse that the law can provide; and to introduce measures which seek to ensure that the relevant organs of state give full effect to the provisions of this Act’.

This legislative intervention was seen as progressive and necessary to protect mostly the rights of women and children. However, the Act has not brought about the expected results as acts of domestic violence continue to occur. Domestic violence is defined in the Act as

‘physical abuse, sexual abuse, emotional, verbal and psychological abuse, economic abuse, intimidation, harassment, stalking, damage to property, entry into the complainant’s residence without consent where the parties do not share the same residence, or any other controlling or abusive behaviour towards a complainant, where such conduct harms, or may cause imminent harm to, the safety, health or well-being of the complainant’.

Domestic violence is defined broadly in the Act in order to capture the most common abusive behaviours that victims are exposed to on an almost daily basis in South Africa. Domestic violence cases are regarded as civil cases, hence domestic violence is not defined as a crime in the Act. This means that there is no specific crime of domestic violence in South Africa. Such a criminal case will be conducted separately from the civil proceedings in the domestic violence case.

The role of the police

To ensure that cases of domestic violence are taken seriously, the Act places an obligation on members of the South African Police Service (SAPS) to monitor, enforce and oversee the implementation of the requirements of the Act. In terms of s 2 of the Act, any member of the SAPS at the scene of an incident of domestic violence or as soon thereafter as is reasonably possible, or when the incident of domestic violence is reported, must –

  • assist or make arrangements for the complainant to find a suitable shelter and obtain medical treatment;
  • hand a notice containing information as prescribed to the complainant in his official language; and
  • if it is reasonably possible, to explain the contents of such notice as well as the remedies that are at the disposal of the complainant, and the right to lodge a criminal complaint if applicable.

Section 2 requires police officers to make an immediate assessment of the need for first aid or other medical assistance. This implies that there must be cooperation between the police and the Department of Health to make ambulances available. This section does not, however, give clear directives on how the police should go about ensuring that the victim does obtain medical attention. It might also be desirable for the police official to accompany the victim to get medical attention in order to ensure that the continuity and integrity of the evidence is maintained.

Furthermore, the police have a duty to explain the investigation processes and procedures to the complainant and make it clear to the complainant that domestic violence cases are taken seriously. They should also emphasise the importance of the complainant being truthful and forthcoming with relevant information that may assist the police in protecting his rights. The police officials are also obliged in terms of s 2(c) to explain to the complainant –

  • the possible remedies that are open to the complainant;
  • that the complainant has the right to apply for a protection order in terms of s 4 of the Act; and
  • the right to lay criminal charges if the domestic violence act concerned constitutes a crime.

If it is reasonably possible, the police official handling a domestic violence case must assist the complainant in his language in terms of s 2(b) and (c) of the Act. It would be difficult, if not impossible, for the police to carry out the requirements of s 2 if they are not adequately trained to deal with domestic violence cases. It is doubtful whether members of SAPS are sufficiently trained to carry out their duties as required by the Act.

It is important that police officials entrusted with dealing with domestic violence cases receive special training to enable them to carry out their obligations as required by the Act. The police should also be adequately trained to conduct domestic violence cases efficiently. It has been recommended that when an incident of domestic violence is reported to SAPS, the statement-taking should include five essential questions on –

  • the history of the abuse;
  • a description of the most recent incidence of domestic violence;
  • any medical attention sought by the complainant as a result of the current incident or previous incidents or any other evidence to show that an act of domestic violence has taken place;
  • the complainant’s knowledge of any previous criminal records of the accused; and
  • the complainant’s knowledge of any orders against the accused, including protection orders, interdicts and maintenance orders (see Lillian Artz ‘Better safe than sorry: Magistrates’ views on the Domestic Violence Act’ Crime Quarterly No 7 2004).

Furthermore, s 3 of the Act empowers police officials to arrest at the scene of domestic violence without a warrant if there is a reasonable suspicion that an offence committed has elements of violence.

Failure to comply with [the requirements of s 2] constitutes misconduct and the National Commissioner of the SAPS is required to submit six-monthly reports to parliament detailing the number and nature of complaints against the police for failing to adhere to these statutory obligations; disciplinary proceedings instituted and steps taken as a result of recommendations made by the Independent Complaints Directorate’ (Vetten).

State’s obligation to protect against domestic violence

In terms of s 12(1)(c) of the Constitution, everyone has the right to freedom and security of the person, which includes the right to be free from all forms of violence from either public or private sources. The Constitutional Court in S v Baloyi (Minister of Justice and Another Intervening) 2000 (2) SA 425 (CC) para 11 has held that:

‘Read with s 7(2), s 12(1) has to be understood as obliging the state directly to protect the right of everyone to be free from private or domestic violence. Indeed, the state is under a series of constitutional mandates which include the obligation to deal with domestic violence: To protect both the rights of everyone to enjoy freedom and security of the person and to bodily and psychological integrity, and the right to have their dignity respected and protected, as well as the defensive rights of everyone not to be subjected to torture in any way and not to be treated or punished in a cruel, inhuman or degrading way’.

By promulgating the Act, the state was conscious of the fact that domestic and family violence is a pervasive and frequently lethal problem that challenges society at every level. The importance of eradicating domestic violence and abuse in our society cannot be overstated. In order to comply with its constitutional mandate, the state entrusted the police with the duty to protect victims of domestic violence.

‘[SAPS] is one of the primary agencies of the state responsible for the protection of the public in general, and women and children in particular, against the invasion of their fundamental rights by perpetrators of violent crime’ (Carmichele v Minister of Safety and Security and Another (Centre for Applied Legal Studies Intervening) 2001 (4) SA 938 (CC)).


Domestic violence remains a major social ill in South Africa and requires law enforcement agencies to work aggressively to prevent it. The Act is an expression of the state’s commitment to eliminate domestic violence. However, in order for the implementation of the Act to be successful, police officials must be trained to enable them to make informed decisions that best protect victims of domestic violence and abuse. In order for police officials to be able to adequately inform victims of their rights in terms of the Act and to explain certain information, they need detailed understanding of the issues involved and an ability to put information across in a clear and simple manner. Domestic violence cases involve particular investigative skills, which the state must ensure that members of the police are equipped with.

Article by Clement Marumoagae LLB (Wits) LLM (NWU) who is a candidate attorney at the Wits Law Clinic – De Rebus.

Compiled by Bertus Preller a Divorce and Family Law Attorney in Cape Town who has more than 20 years experience in most sectors of the law and 13 years as a practicing attorney. He specializes in Family law and Divorce Law at Abrahams and Gross Attorneys Inc. in Cape Town. Bertus is also the Family Law expert on and on the expert panel of and is frequently quoted on Family Law issues in newspapers such as the Sunday Times and Business Times. His areas of expertise are Divorce Law, Family Law, Divorce Mediation, Parenting Plans, Parental Responsibilities and Rights, Custody (care and contact) of children, same sex marriages, unmarried fathers rights, domestic violence matters, international divorce law, digital rights, media law and criminal law.

Bertus Preller

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Family Law Attorney

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Children Custody Matters, what we can learn from Charlie Sheen

As an attorney I often advise clients regarding what they should and should not do during a contested divorce where care and contact of the children or custody as we know it is at stake. Here are some important lessons learned from the hours of Charlie Sheen interviews attracting media attention the past few weeks.

Call me old fashioned, but a judge typically do not let 2-year-old twins return to a house where the dad is having a 2 ½ -some.

If you are going to partake in “extracurricular activities” during a custody dispute, at least find a hotel, there are lots of these in South Africa. It is much easier explaining to a judge this charge on a credit card, as opposed to justifying why this behaviour is appropriate in the home.

When determining child custody issues, South African courts have accepted through the years the “Best Interest of the Child” standard. This means that courts are free to consider whatever facts they believe to be relevant when making a child custody determination. This standard is based upon the legal theory “in loco parentis,” which basically means that the court stands “in the place of the parent” when asked to determine a child custody matter. Accordingly, the court takes the place of both the parents when determining what is best for the children in the circumstances.

In the Sheen matter, the analysis will be slightly more complicated. Sheen and Brooke Mueller recently signed a custody agreement or as we know it in South Africa a parenting plan. By signing this document, both the parents essentially stated that they believed the terms of the agreement will be in the best interest of the children. Mueller has asked the court to set aside the recent custody agreement because of a change of circumstances (e.g. Sheen’s recent strange and disturbing behaviour), and because the change would be in the best interest of the children. Because of all the interviews that Sheen has given, there is no shortage of proof that Sheen has new or exasperated issues (whether it be manic episodes, bipolar symptoms, drug use or just poor parenting decisions), and that the agreement granting Sheen unsupervised visitation rights should be re-examined.

At the very least, Sheen’s decision to expose the two-year-old twins to his two so-called “goddesses” will be seen as an important change of circumstances to cause the court to make a thorough analysis of what future care and contact arrangements is in the best interest of the children.

A Porn star is not a qualification to be a nanny.

If you are wealthy and fighting custody battles rather hire someone akin to Mary Poppins. She would be a great witness at trial and people may even love the accent.

Admitting taking substantial amounts of cocaine in the past months, when you claim that your wife has a sobriety problem; it’s almost like the pot calling the kettle “Charlie Sheen.”

Courts appreciate when a parent admits that there is a problem and attempts to get help for that problem and Judges will recognize that people are fallible. If a parent, such as in Sheen’s case goes on national television to proclaim that he is not fallible and in fact has tiger blood, he has not helped his case.

If you have already shot your fiancé and threatened your second wife, been arrested on a violent charge, you probably shouldn’t threaten to kill your current wife during a custody case.

Violence against the other parent will be considered when determining custody and visitation arrangements. This is because courts do recognize that a child’s psyche is significantly affected when watching or learning that there have been acts of domestic violence between his or her parents. If a parent threatens (or is violent against) the other parent, courts may surmise that this parent may threaten (or become violent against) the child in the future.

If we have learned nothing else from Napoleon, you probably shouldn’t fight a two-front war at the same time.

If you have your hands full with a custody battle with wife number three, maybe now is not the time to make threatening and derogatory statements against wife number two. I know it is a recession, but your divorce attorneys may not be that hard up for work.

So what should Sheen do now? The answer is clear….do what is in the best interest of the children.

Bertus Preller is a Divorce and Family Law Attorney in Cape Town who deals with divorce matters all over South Africa and has more than 20 years experience in law and 13 years as a practising attorney. He specializes in Family law and Divorce Law at Abrahams and Gross Attorneys Inc. in Cape Town. Bertus is also the Family Law expert on and on the expert panel of His areas of expertise are Divorce Law, Family Law, Divorce Mediation, Custody (care and contact) of children, same sex marriages, unmarried fathers rights, domestic violence matters and international divorce law.