End litigation or risk losing children, court warns

Spira Tlhankane | Wednesday August 20, 2025 06:00

The legal dispute between Alias Hendrich Swart and Andrea Kathleen Bolla arose from the funds the latter had withdrawn from a Canadian bank account, which was meant for the benefit of their minor children.

The funds forming the subject matter of the case originate from a period antecedent to or contemporaneous with the dissolution of the parties' marriage. Swart approached the court demanding the return of the funds amounting to close to a million pula.

In the judgment where she dismissed Swart’s appeal, Justice Mercy Garekwe said the duo should note that their persistent animosity has created a toxic environment, the deleterious effects of which fall most heavily on their innocent children.

“The parties must be reminded that the welfare of the minor children remains the paramount concern of this court that continued contentious litigation, serves only to exacerbate hostility to the detriment of familial relationships and the best interests of the children.

“Should this adversarial cycle persist, the court is not without power to intervene in the interest of the children, even to the extent of considering their removal from the care of both parents, should it become necessary for their protection and upbringing,” Garekwe warned the disputing parties.

Garekwe added the parties are admonished to bring an end to this fruitless cycle of litigation, for their own sakes and most importantly for the establishment of a stable and nurturing environment for their children.

“Expenditure of resources and energy on ongoing disputes would be far more profitably directed towards the children’s needs and well-being,” she added.

When dismissing the appeal, Garekwe indicated that the matter came before the apex court against a backdrop of a protracted and unfortunate history.

The litigation arises from two applications that were consolidated for determination in the High Court, and the latter dismissed both.

Dissatisfied with the decision of the High Court, Swart, in his grounds of appeal said the court misdirected itself in completely disregarding the entirety of his pleadings with regard to his prayers.

Swart had sued to recover the funds, but the CoA dismissed his case, finding that the money had rightfully passed to Bolla and that she was fully entitled under the law to use it as she wished.

“It is noted that this court previously issued an order directing the respondent to account for the funds in question. Notwithstanding this directive, it remains the considered view of the court that such an order of accounting does not, in and itself, confer upon the appellant any substantive legal entitlement to demand repayment or restitution of the respondent’s personal funds,” Garekwe said in the judgment.

She said Swart lacks the requisite locus standi to challenge, question, or demand the return of the funds at issue.

“These monies are the exclusive properties of the respondent, and she is lawfully empowered to transfer or allocate them for the benefit of her children or otherwise dispose of them as she determines,” Garekwe emphasised.