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[2016] ZAWCHC 79
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M.L v S.J.D (18504/2015) [2016] ZAWCHC 79 (24 June 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
Number: 18504/2015
DATE:
24 JUNE 2016
In
the matter between:
M
L
.............................................................................................................................................
Applicant
And
S
J
D
........................................................................................................................................
Respondent
Heard
on: 20 June 2016
Delivered
on: 24 June 2016
JUDGMENT
BOQWANA,
J
Introduction
[1]
The issue before me concerns costs
in respect of an urgent application lodged by the applicant on 25
September 2015 seeking, inter
alia, an order directing the Department
of Home Affairs to process the renewal of the minor child’s, M
D (‘the child’),
passport without the respondent’s
consent or assistance and/or his presence, or for such consent to be
dispensed with; and
for the respondent to be directed to consent to
the child’s travel to Mauritius, during 9 December 2015 and 28
December 2015,
within 48 hours or his consent to be dispensed with or
for the child to be removed without his consent in the event of his
refusal.
[2]
The matter was set down for hearing
on 30 September 2015. On the date of the hearing the parties settled
the matter and an order
by agreement was made by Desai J to the
effect that the respondent would attend the Department of Home
Affairs, Wynberg on 1 October
2015 at 08h00 together with the
applicant for purposes of the renewal of the child’s passport
and remain in attendance there
and/or return on a date mutually
agreed to by the parties which shall not be later than 5 days from 1
October 2015 to ensure that
the process of renewal of the passport is
completed. The order further stated that the respondent provides his
written consent
for the child to travel to Mauritius with the
applicant during the period of 9 December 2015 to 28 December 2015.
[3]
The issue costs was postponed for
argument to a later date to be arranged by the Registrar.
[4]
The applicant seeks an order
directing the respondent to pay her costs on an attorney and client
scale.
[5]
The respondent is of the view that
in these circumstances each party should be ordered to pay his or her
own costs, or if the Court
is minded to reward costs that the
applicant not be ordered to pay costs unnecessarily incurred due to
the applicant’s taking
of protracted and unnecessary legal
steps. According to the respondent there is no basis for costs
on a punitive scale.
Common cause
facts
[6]
The parties are biological parents
of a six year old child born on 1 July 2009. They were divorced
from each other on 28 March
2012 by an order of this Court. The
divorce incorporated a consent paper and a parental plan in terms of
which they both retained
co-guardianship for the child. In terms of
clause 1.14 of the parental plan it is recorded that any party
wishing to travel with
the child overseas shall obtain written
consent from the other party which shall not be unreasonably
withheld. It is further recorded
that the applicant’s family
resides in Mauritius and that it is her intention to travel to visit
her family with the child
annually during her portion of the
December/January vacation.
[7]
In terms of s 18 of the Children’s
Act No. 38 of 2005 (‘the Children’s Act’) a parent
who acts as a guardian
of a child must give or refuse any consent
required by law in respect of the child including consent for the
child’s application
for a passport and consent to the child’s
departure or removal from the Republic of South Africa. Furthermore,
the Department
of Home Affairs requires both parents to be present
when an application to renew the child’s passport is made.
Applicant’s
case
[8]
The applicant alleges that the
respondent had been unreasonable and had refused to co-operate and
attend with her to the Department
of Home Affairs for the renewal of
the child’s passport. As a result of his actions she was forced
to bring an application
to compel him to do so.
[9]
At the time of lodging the urgent
application in September 2015 she had not yet booked flights as the
issue of the renewal of the
passport was unresolved. She intended to
travel with the child from around 10 December 2015 to 27 December
2015 which was her allocated
holiday time with the child.
[10]
She had previously applied to this
Court seeking an order directing the respondent to consent to the
removal of the child from the
Republic of South Africa. The
respondent portrayed himself as consenting whereas he attached
certain conditions to be met before
consent could be given, as he had
done in the current application. The application brought in September
2015, was the second one
post the divorce.
She
was successful in the first application but she decided not to pursue
the issue of costs.
[11]
She had attempted for a number of
months to resolve the issue of the child’s renewal of the
passport without resorting to
litigation but the appellant had been
unreasonable and obstructive in his approach and she received no
co-operation from him. She
annexed various email correspondence
between her and the respondent starting from August 2015 as well as
letters and emails between
her attorneys and the respondent to
support her contention. According to her the respondent had
consistently been paying lip service
regarding his willingness to
assist her in obtaining renewal of the child’s passport but yet
set unilateral conditions that
he required the applicant to meet. She
required the respondent to meet her at the Department of Home
Affairs, in Wynberg on a suitable
date starting from August 2015. The
requests to the respondent started in May 2015. The child’s
passport was due to expire
on 25 November 2015.
[12]
The respondent averred his
willingness to assist but provided no date upon which he could attend
at Home Affairs with her.
Their facilitator did not have
authority to assist her with the kind of relief sought. Her
attorney also requested unconditional
co-operation from the
respondent to no avail.
[13]
At the time of the application the
applicant had been unable to secure flight bookings for the December
trip as all airlines were
fully booked for the period she wished to
travel with the minor child.
Respondent’s
case
[14]
The respondent alleges that he has
unreservedly and unconditionally stated his willingness to co-operate
by virtue of an email dated
18 September 2015 but instead of
returning to him with a date, the applicant rather lodged an urgent
application.
[15]
According to him, the application
was only issued on 23 September 2015, with an affidavit commissioned
on 22 September 2015, whereas
he had written his email recording his
willingness to co-operate on 18 September 2015.
[16]
According to him the application was
not urgent it took seven days to be issued after attending Home
Affairs. Accordingly
the application was brought unnecessarily
and the applicant’s request that he bears the costs was
unjustified and unwarranted.
Analysis
[17]
It is trite that a party who is
successful is entitled to costs. It is also established that in
matrimonial matters the court
is not quick to award costs against a
losing party; that is however not a rule. In
Bethell
v Bland and Others
1996 (4) SA 472
(W)
the court observed that there was no rule that no order as to cost
should be made in cases involving minor children. In that
case the
issue was about custody of a minor child. The court captured the
correct approach at 475E-I as follows:
‘
I
consider the correct approach to be:
1.
Generally speaking, a successful litigant
is entitled to his or her costs.
2.
While it is quite true that a custody
dispute should not be seen as an adversarial contest in the ordinary
sense but rather as an
enquiry into the best interests of the child,
it cannot be denied that in most cases the litigants are advancing
their own preferences
and seeking satisfaction of their love of the
child. Often, too, the papers contain many attacks on the character
and conduct the
opponents.
3.
On the other hand it is also a
consideration that a party should not be discouraged from putting up
a case which he or she, on broadly
reasonable grounds, thinks to be
in the interests of the child for fear of having costs awarded
against him or her if unsuccessful.
By the same token, a party
who is, on what turn out to be good grounds, confident that his and
her case will prevail, should not
be discouraged from taking or
resisting action because of the costs which he or she will incur.
4.
However
bona
fide
and concerned a party may be, if
he or her opponent’s judgment of the issue prevails, it is not,
in the absence of circumstances
justifying it, fair that the opponent
should be mulcted in his or her costs.’
[18]
In this case
the respondent admits that the requests from the applicant for the
renewal of the child’s passport started in
May 2015. On 4
August 2015, the applicant sent an email to respondent
requesting
his co-operation, for him to be present at the Wynberg Home Affairs
in order to renew the child’s passport from
8am until the
passport has been processed. She asked him to respond with a
day and date in August 2015, when he could make
himself available.
A response was required by Friday, 7 August, 13h00. She warned that
if there was no response by then she
would approach the relevant
authorities.
[19]
The respondent replied on 6 August
2015 with a detailed email referring to issues which he stated had
not yet been clarified by
the applicant. Amongst other things he
stated the following:
‘…
I
have repeatedly assured you of my willingness to assist with the
acquisition of our sons (sic) passport, while requesting confirmation
on allied topics, which you unfortunately remain reluctant to
clarify. It is therefore politely suggested that you re-read our
exchanged correspondence (from your initial request 21/5), where you
will be reminded of matters that you have yet to address.
Again I ask
the question as to how you can muster the ability to “tolerate”
my presence in order to facilitate “your
intentions” but
unprepared to duplicate the determination on another occasion, to
accommodate “my wishes”. While
I await your explanation
for this intriguing conundrum, please also clarify why you feel that
Mathieu’s passport (to be “jointly”
acquired) will
be considered your “exclusive” property.’
[20]
The respondent did not provide a
suitable date for attendance to Home Affairs as requested by the
applicant but instead demanded
the applicant’s convincing
explanations by 13h00 on Friday 7 August.
[21]
On the same day, the applicant
responded to the respondent reminding him to raise the matters he
felt needed to be addressed at
the facilitation which was the
appropriate forum. She further expressed that although the respondent
stated that he was willing
to assist, by not providing a date and day
in August in 2015 he was demonstrating unreasonableness and was being
uncooperative.
She further noted that ‘
The
renewal of Matt’s passport is so that Matt can go on holiday
end of September 2015, Mauritius in December 2015, and to
Europe in
March 2016 with his family.
How
could you not want this for our son – it is in his best
interests
.’ (Underlined for
emphasis)
[22]
She once again reminded him of what
was contained in her previous correspondence which was that he had
until Friday, 7 August, 13h00
to respond with a date and a suitable
day to go to Home Affairs, failing which she would approach the
appropriate authority and
insist that costs be for his account. In
response to this on the same day, the respondent stated that the
renewal of the child’s
passport was in the applicant’s
interest and not those of the child and that the child would be as
happy on a beach in Muizenberg
as he would in Mauritius. On 13
August the respondent wrote an email raising a number of issues and
nothing about when the
child’s passport could be renewed.
[23]
On 14 August 2015 the applicant
again wrote to the respondent reminding him that she had written to
him on numerous occasions informing
him that the child needed a new
passport and that it was legally required that both parties be
present [at the Home Affairs] with
the child. She further stated in
the email that ‘
I have asked you
to be reasonable and for your co-operation in providing a date and
day that would suit you, so that this can be
processed (taking into
account how long a passport takes) and in the best interest of our
son…It is unfortunate that your
response to date has been
obstructive, threatening and unreasonable. I have in no way held you
to ransom
…’ She further
advised him that she had approached legal counsel in this regard.
[24]
On 18 August 2015, the respondent
wrote an email raising various issues but nothing about when he could
make himself available to
attend at the Home Affairs with the
applicant to renew the child’s passport.
[25]
On 30 August 2015 the respondent
sent a long response, stating that he volunteered to accommodate the
applicant but there were certain
interesting developments that needed
to be clarified before the parties could move forward. He still did
not provide a suitable
date to attend Home Affairs but instead was
asking the applicant to clarity her ‘
surprising
comfort with the arrangement
.’
[26]
On 2 September 2015, the applicant
indicated that she accepted the respondent’s willingness to
co-operate and gave him a date.
She requested the respondent to meet
her and the child on 4 September 2015 in Wynberg.
[27]
The respondent wrote another long
email on 03 September 2015, demanding certain assurance, the email
read, inter alia, as
follows:
‘…
While
I volunteered to accommodate your preference regarding the
application date, you will recall this was proposed on 24/05.
However, you will be first to appreciate there have been several
interesting developments over the past three months, that I feel
should be addressed before we move forward. You will further
understand my caution, that if my requests for clarification are not
considered at this stage, there is just the possibility they could be
disregarded, once your goal has been achieved.’
[28]
On 9 September 2015, the applicant’s
attorney addressed a letter to the respondent for him to
unconditionally and unreservedly
indicate by 12:00 noon, 10 September
2015, whether he would attend Wynberg Home Affairs, on 14 September
2015, for the renewal
of the passport and on 15 September 2015 if it
becomes necessary, so as to ensure the renewal is finalised. This
request was made
in order to avoid the applicant approaching the
court and seeking a punitive cost order against him.
[29]
On the same day (i.e. 9 September
2015), the respondent requested an extension by which to respond
stating that he would respond
by midday on 11September 2015. The
applicant through her attorneys granted this extension in a letter
dated 10 September 2015.
The applicant’s attorneys also
notified that in the event his response resulted in a further delay,
which had the effect
of negating the object of the request; this in
itself would be construed by the applicant as effectively a refusal
on his part.
[30]
On 11 September 2015, the respondent
once again expressed his commitment to assist but stated that there
remained an opportunity
for the applicant to clarify her views on his
topic of interest. He requested a negotiated resolution where both
wishes could be
accommodated. There was no comment about
whether he could make himself available on the date suggested which
was 14
September 2015 or an offer of an alternative suitable date to
attend to Home Affairs.
[31]
On 16 September 2015, the
applicant’s attorney wrote a letter to the respondent advising
him that due to his failure to confirm,
unconditionally and
unreservedly by 11 September that he would attend Home Affairs
Wynberg for the renewal of the child’s
passport, the attorneys
had been instructed to proceed with the necessary relief.
[32]
The respondent responded on 18
September 2015 in the following manner:
‘
As
is well documented, I have repeatedly conveyed my willingness to
cooperate with your client and have never refused to assist
with the
acquisition of our sons (sic) passport.
However, I had hoped
to obtain reassurance that your clients (sic) past practice of
withholding our sons (sic) documentation could
be discouraged, hence
my request for clarification on the topic.
Again,
I am willing to cooperate as requested and ask that your client give
fair notice of her preferred date for our visit to the
Department of
Home Affairs
. I trust however that my
possible future requests of your client, for our sons (sic)
documentation, to travel outside RSA borders,
will not be refused and
be accommodated in a similar reasonable manner.
In view of my
cooperation communicated in this email, I regard an application as
unnecessary and accept no responsibility for any
legal costs in this
regard.’ (Underlined for emphasis)
[33]
It is clear from the emails and
letters outlined above that the applicant had been trying to obtain
assistance from the respondent
for months. The respondent sought to
use the issue of passport as bargaining tool for the resolution of
other ‘outstanding’
issues between him and the applicant.
[34]
Mr Abrahams who appeared for the
respondent acknowledged that the respondent was unreasonable and
obstructive up to a point. He
submitted that the email of 18
September 2015 was a turning point. He argued that in that email the
respondent displayed a change
of heart. According to Mr Abrahams, at
least from that point it was clear that the respondent was willing to
cooperate; he requested
a date that the applicant preferred.
Therefore, legal proceedings ought not to have continued. The
applicant instead should have
given him a date that she preferred.
According to Mr Abrahams the email of 18 September was different from
others in tone and content.
He therefore contends that the respondent
should not be held responsible for the applicant’s choosing of
taking legal steps
despite the email clearly stating his commitment
to help.
[35]
It was necessary to outline the
various exchanges between the parties in some detail so as to obtain
a better understanding of the
history of the matter. These exchanges
reflect a context. In my view, the email of 18 September should be
viewed in the context
of other correspondences that the respondent
wrote. From as far back as May 2015 requests were made to the
respondent. He expressed
willingness to assist but made unrelated
demands. He clearly had no intention to assist but merely paid lip
service as submitted
by Ms Heese who appeared on behalf of the
applicant. The respondent clearly was intent on delaying the
matter by failing
to provide a suitable date and by constantly
putting conditions and referring to other issues which were unrelated
to the matter
at hand which was to obtain renewal of the passport of
the child. This unaccommodating stance was in my view an attempt to
frustrate
the applicant and to use the issue of the passport as a
tool to fight unrelated battles. The applicant wrote numerous letters
to
the respondent warning him about legal action. That did not seem
to move him. The respondent seemed to be putting obstacles and
did
the opposite of his expressed willingness to help. The letter of 18
September cannot be isolated from the rest of the correspondence.
Whilst it appeared from the email of 18 September that on the face of
it the respondent was willing to compromise and even defer
the
clarification he had been demanding in relation to other issues, to
another day, he provided no dates that could be considered
by the
applicant. Instead, in his email he requested ‘fair notice’
of a preferred date to be provided by the applicant.
The email of 18
September was not unequivocal. In my view the applicant did not act
unreasonably by viewing the said email correspondence
in the same
light as those that previously expressed willingness with no real
action or commitment. I agree with Ms Heese that
the manner in which
the email of 18 September was worded, in particular, reference
to ‘fair notice’ left a
door open to the respondent
to object to whatever notice given by the applicant as not being
‘fair’, which could delay
the matter further. The steps
that the applicant took to institute legal proceedings were not
unwarranted, in my view. She did
not view the email as any different
from others, for reasons I have outlined. Her doubts about the
respondent’s sincerity
in his latest email and the actions she
took thereafter were merited.
[36]
As regards urgency, I am satisfied
that the matter was pressing and urgent enough in that although the
passport took seven days
to be issued, at the time of the lodging of
the application there was no guarantee of how long it would take to
be processed. Most
importantly, even if it were to take a short
period as it proved to have taken, the most compelling issue was the
issue of the
flight tickets to Mauritius for December 2015 which
still needed to be booked. That could not be done without the
passport issue
being resolved. The respondent’s actions were
unhelpful and unsupportive.
[37]
His conduct was certainly not in the
best interest of the child. He was obstructive, unreasonable and
sought to use the passport
issue as some form of a
quid
pro quo
towards him obtaining answers
to his own demands.
[38]
Although the order that the parties
agreed to is differently worded to what was sought in the notice of
motion, the effect is the
same. The difference is that the relief
sought in the notice of motion was to compel the respondent to
cooperate whilst in the
order of 30 September 2015 he agreed to
attend to the Home Affairs with the respondent and provided written
consent for the child
to travel to Mauritius. In the circumstances,
there can be no question about the fact that the applicant was
substantially successful.
The respondent clearly left the applicant
with little choice but to come to court. His behaviour was
unreasonable and uncooperative.
I do not think it would be just for
the applicant to be denied a cost order, when costs could have been
avoided. Costs should,
accordingly, be awarded against the applicant.
[39]
On the issue of whether the case
justifies a cost order on an attorney client scale, whilst I would
ordinarily have been hesitant
to grant costs on this scale, I do
think a case has been made out by the applicant that the court should
show its displeasure towards
the respondent’s obstructive
conduct by awarding costs on attorney and client scale against him.
[40]
I therefore make an order in the
following terms:
1.
The respondent is directed to pay to the
applicant:
1.1Costs of the
urgent application instituted by the applicant under case number
18504/15;
1.2 Costs occasioned
by the hearing of argument in respect of costs of application
referred in paragraph 1.1 above.
2.
Such costs to be paid on attorney and client scale.
N
P BOQWANA
Judge
of the High Court
APPEARANCES
For the
Applicants: Adv. AE Heese
Instructed by:
Miller du Toit Cloete Inc., Cape Town
For the
Respondents: Adv. R Abrahams
Instructed
by: Machanik Attorneys, Cape Town