Sunday Times (Johannesburg) - May 21, 2006
Shanthini Naidoo and Simpiwe Piliso

Pretoria High Court Judge Johan Smit made the comments during the divorce proceedings of the woman and her husband, a well-known multi-millionaire who is HIV-negative.

"I am not, I am really not interested in her medical status. She has admitted that she is a carrier of Aids. That is all that is, as far as I am concerned, relevant," Judge Smit said.

He was presiding over the divorce of an executive of one of the country's biggest empowerment IT companies - who has said the "main reason" for the divorce was his wife's infidelity and her having "contracted HIV/Aids".

On Tuesday Judge Smit stripped the woman of joint child custody granted by an earlier court order. He gave the 42-year-old businessman interim custody of the couple's two sons pending a report from the Family Advocate.

Section 12 of the Divorce Act prohibits the media from covering details of divorce matters, but the Sunday Times obtained a transcript of the proceedings and is publishing in view of the judge's comments.

Judge Smit, who retired this week, said the following during the proceedings:

* Upon being told during a private conversation with the businessman's lawyers that the woman wanted custody, he said: "Well, if she wants to waste her time, let her do so.";

* Informed that the mother has been the "primary caregiver" of the two boys: "Well, this is highly contested. And my problem is, she told me that he gave her whatever illness she may have, and that I have the evidence on record at this stage, that is not so. So what notice do I take of what she says?";

* When her lawyers explained that she had been unable to respond to her husband's claims in an affidavit before court: "The problem is, the applicant made her bed and she has got to lie on it."; and

* Told she was able to work and to mother her children: "Well, what evidence do I have that she will not transmit the HIV to the children?"

When told she could provide oral evidence on her ability to look after her children, Judge Smit said he was not interested and that the only thing of relevance to him was that she "is a carrier of Aids".

Yesterday Judge Smit told the Sunday Times: "I am not prepared to discuss the case with you, please."

Treatment Action Campaign spokesman Mark Heywood described the comments as "prejudiced and backward" and said a complaint should be lodged against the judge.

Advocate Liesel Gerntholtz, a former spokesman for the Aids Law Project, said the comments were "astounding".

The businessman claimed his wife had unprotected sex with him despite knowing her status "so as to deliberately infect me too so that she can claim that I infected her and ... claim financial support from me".

He said: "God saved me from being infected by her."

His lawyer, Fiona Marcandonatos, said the issue at hand was her client's demand for custody of their children. The couple were married in 1999, out of community of property without accrual. This meant that she was entitled to nothing.

Marcandonatos said the couple initially signed a deal that granted him custody of the children, but the wife had now changed her mind. Her client saw this merely as an attempt to extort money from him. She said the man was acting in the best interests of his children.

The businessman believed his 39-year-old wife had been given a "death sentence" and "has nothing to lose", and that this had sparked her "unreasonable" demands.

Her lawyer, Billy Gundelfinger, said Section 12 of the Divorce Act precluded him from commenting.

The woman had asked the court for an interim order for monthly maintenance of about R50000, a luxury car and a R2.8-million home, among other demands.

Until October last year, the couple shared an R18-million mansion in Sandhurst, northern Johannesburg. The wife claims her husband is worth about R500-million and lists among his assets a Swiss bank account, which, at last check, had about R35-million in it.

The two children each had an individual minder.

Judge Smit ordered that the children remain in the father's custody and that the mother have them on alternate weekends, Wednesday afternoons and alternate school holidays.

He ordered her husband to pay her R10000 a month and the rent for a luxury Sandton apartment, and to retain her on his medical aid.

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