key to the study guide - Name

210
made a restrictive order similar to that requested by Mrs Lewis. Do you
think that the court would, in Mr and Mrs Lewis's case, follow the same
approach as in Van Rooyen and make a similar order? Substantiate your
answer with reference to authority.
FEEDBACK
Although the court may impose any conditions and/or restrictions on
access it deems in the best interests of the child the court should be careful
about how it formulates its judgment about the reasons why conditions are
being imposed on access.
Even though the decision in VanRooyenvVanRooyen(which was delivered
before the Bill of Rights came into operation) was ostensibly based on the
children's best interests, a similar order would today be declared
unconstitutional.
After the coming into operation of the Constitution, the court in VvV
criticised the court's remarks in Van Rooyen v Van Rooyen and held that, in
the light of the equality clause in the Constitution, it is wrong in law to
described sexual orientation as abnormal. The court nevertheless held that,
as the child's rights are paramount, ``situations may well arise where the
best interests of the child require that action is taken for the benefit of the
child which effectively cuts across the parents' rights''.
In the sequel to the Van Rooyen decision the court supported the remarks in
V v V, namely that describing homosexuality as abnormal violated the
equality clause. The court held that there is no justification for regarding a
lesbian home as per se less suitable than one in which another sexual
orientation prevails. The court also held that the order in the original Van
Rooyen case was clearly constitutionally untenable as it prevents the
applicant and her partner from living a normal life as partners, sharing a
bedroom, displaying affection for one another and using whatever
household and personal items they would normally do in their home in
the presence of the children.
Should the court still wish to impose restrictions on Mr Lewis's access
rights it will have to provide other reasons than those offered in the initial
Van Rooyen case (namely, that homosexuality is legally wrong and
abnormal). The court would most probably not restrict Mr Lewis's access
rights at all, unless there are other grounds which justify such a restriction.
3.4 Maintenance of the children
The next issue which is discussed in your textbook on page 170, is the
maintenance of the children following a divorce. You need only read that