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[2021] ZAWCHC 198
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J.G v G.G (11396/21) [2021] ZAWCHC 198 (8 October 2021)
SAFLII
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
WESTERN
CAPE DIVISION, CAPE TOWN
Case number: 11396/21
Before: The
Hon. Mr Acting Justice Montzinger
Hearing: 5 October
2021
Reasons: 8 October 2021
In the matter between:
J G[....]
Applicant
and
G G[....]
Respondent
REASONS
REFUSING POSTPONEMENT
MONTZINGER
AJ:
[1]
This matter started as an urgent application on 7 May 2021. It
concerns the
interests of a minor child who is presently 13 years
old. The application initially consisted of two parts.
[2]
Under Part A urgent relief was sought to appoint a curator
ad
litem
to the child so that his voice can be heard, and that a
neutral party would advance his position in respect of care, contact
and
care by his parents. Part B of the application sought
relief that this Court considers to be in the best interest
pertaining
to the minor child’s care, contact and welfare,
including any potential orders in accordance with the recommendations
of
the minor child’s curator
ad litem
and with the
recommendations, if any, of the Family Advocate.
[3]
Both parts of the application were initially opposed by the
respondent, who was legally
represented and delivered a notice of
opposition. Notwithstanding the opposition the parties on 7 May
2021 reached an agreement
in respect of the further conduct of the
application, and ancillary matters. This agreement was embodied
in a Court order
granted by Henney J. In terms of this order
Janet McCurdie SC was appointed as the curator
ad litem
to the
minor child, as per part A of the notice of motion. As curator
she was granted investigative powers with the direction
to deliver a
report with her recommendations to the Court.
[4]
The relief sought in part B was postponed, by agreement, to 2 August
2021 for hearing
on the semi-urgent Court roll. On that day the
matter did not proceed to argument and the parties concluded a
further agreement
embodied in a Court order granted by Judge
President Hlophe. The August 2021 order postponed the relief in
Part B for hearing
on 6 October 2021, and the curator was required to
deliver her report on 23 August 2021.
[5]
Both orders by Henney J and Judge President Hlophe made provision for
the respondent
to file an answering affidavit. The record also
reflects that the respondent was represented by an attorney since May
2021
when the agreements regarding the further conduct of the matter
concluded.
[6]
The curator’s report was delivered on 8 September 2021.
On 5 October 2021
at approximately 14:30 this Court was informed that
the respondent’s previous attorney of record has been
substituted with
new attorneys. Potgieter & Associates came
on record while the respondent was until the morning of 5 October
2021 represented
by Haydn Elmes & Elmes Attorneys. No
explanation was tendered why the previous attorneys was substituted
at this late
stage.
[7]
The matter was called for hearing on 6 October 2021 and Ms Danell
Wallace appeared
on behalf of the respondent. She indicated
that she had not had an opportunity to consider the proposed
parenting plan.
By this time the curato
r
has filed a
supplementary report to her September 2021 report and in
consideration of her findings and proposals a draft parenting
plan
was presented for consideration by both parties. Ms Wallace
indicated that her client was not aware of the hearing date.
This could off course not be, as the orders, postponing the matter,
was granted by agreement. Ms Wallace then requested the
matter
to stand down to take instructions and consider the parenting plan.
This request was granted.
[8]
Court resumed at 14:15. This time the respondent was represented by
counsel, who was
briefed during the course of the morning.
Counsel requested a further stand down of the matter to discuss the
applicant’s
proposed parenting plan alternatively draft order.
The request was again granted. Court reconvened at 15:15 as the
parties could not agree on the terms of the proposed parenting plan
or draft order.
[9]
This time respondent’s counsel addressed the Court seeking a
postponement of
the matter. After submissions were made from
the bar in support of a postponement application, the Court refused
the postponement
and allowed the parties to address the merits of the
matter. Applicant’s counsel moved for a draft order
pending the
finalisation of the divorce proceedings.
Considering the status and nature of the proceedings and the Court’s
approach
to the matter the respondent was informed that the Court is
inclined to grant an order in the terms proposed by the applicant.
Respondent’s counsel was invited to address the Court on the
terms of the proposed draft order. Some objections were
raised. These related to paragraphs 1.3, 1.6, 1.7, 1.9 and 1.26
of the proposed order. Some of the concerns were addressed
in
an updated draft.
[10]
In granting the order this Court approached the matter as a Rule 43
application. What follows
are the reasons for refusing a
further postponement of the matter.
The nature of the proceedings
[11]
Although the matter started as an urgent application in part to
appoint a curator
ad litem
for the minor child, two obvious
issues was alive that required the Court’s intervention.
Firstly, it was to obtain
an opinion whether the minor child’s
views should be considered regarding his care, contact and welfare.
Secondly,
that the need to obtain the minor child’s view was
necessary since the applicant and respondent was still at loggerheads
in the divorce proceedings, and the issue of the minor child’s
care, contact and welfare had to be resolved.
[12]
The 7 May 2021 order provided for interim contact with the minor
child pending the resolution
of part B of the application. In
terms of paragraph 7 of that order the contact had to take place as
directed by the parenting
co-ordinator / social worker, Esna Bruwer
in consultation with the curator
ad litem
and clinical
phycologist, Bernard Altman and only with the consent of the minor
child and in the presence of certain professionals.
Paragraph 8
of the order also gave the curator the power to recommend interim
contact arrangements pending the hearing of Part
B.
[13]
Although the relief in Part B of the notice of motion does not
expressly mention for how long
the Court should grant an order
pertaining to the care, contact and welfare of the minor child, it
cannot conceivably be a final
order. To view such relief as
final would usurp the divorce Court’s powers to issue an
appropriate order on the same
issues. Furthermore, if the
allegations in the founding affidavit are considered it is apparent
that the need for the relief
arose in the context of the pending
divorce proceedings. So, any order issued by this Court can
only be effective until such
time that a final decree of divorce is
issued.
[14]
The Court’s view is justified when the ambit of Rule 43 is
considered as well as the legal
principles that has developed around
it.
The
procedure applies
whenever
a spouse seeks relief in respect of one or more of the listed
matters. It applies solely to matrimonial actions that are
pending or are about to be instituted
[1]
.
Procedurally a rule 43 application does not have to meet the same
stringent formal requirements of an application on motion in
the
ordinary course.
[15]
Properly contextualised the applicant seeks relief in respect of
contact and care of the minor
child, pending the finalisation of the
divorce. The relief falls squarely within the listed matter in
Uniform rule 43(1).
So although no mention is made in the
founding affidavit referencing a reliance on Uniform rule 43 it is
apparent from a reading
of the affidavit that the divorce proceedings
are still pending and that it is within that context that the
applicant approached
this Court on 7 May 2021.
[16]
The Court’s approach in this matter is that substance should
count over form
[2]
as the facts of the matter clearly demonstrates a need for relief in
the context of a pending divorce. This matter has all
the
characteristics of a Rule 43 application and should thus be treated
as such.
[17]
Treating the matter as a rule 43 application and issuing an
appropriate order creates a safeguard
for the respondent as she can
still approach the Court later in terms of Uniform rule 43(6), should
a material change occurs in
the circumstances of either party or the
child. This approach favours the respondent as she has not
expressed her position
and response to the relief on affidavit.
So the circumstances that underlies the order issued by this Court is
as presented
by the curator
ad litem
and the applicant,
keeping in mind that the curator
ad litem
did consult with the
respondent in compiling her report.
The postponement application
[18]
The
legal confines in which a Court must consider a postponement
application is well established. Suffice it to point out
that
the legal position and the requirements an applicant must comply with
to succeed with a postponement application has been
consistently
endorsed by our Courts including the Constitutional Court. In
this regard the Constitutional Court’s summary
of the
principles underlying a postponement application in
National
Police Service Union and Others v Minister of Safety and Security and
Others
2000
(4) SA 1110
(CC) at 1112
C – F
[3]
,
guides the Court’s consideration in this matter.
[19]
Having regard to these principles, an applicant is at the mercy of
the Court as an indulgence
is sought and the party must provide a
reasonable explanation for the need to postpone
[4]
and must thus show a ‘
good
and strong reason’
[5]
for the grant of the postponement.
[20]
In this matter, the primary reason for the postponement is premised
on the respondent’s
legal team’s need to consider the
papers and to advise the respondent. Unfortunately, the request
for a postponement
falls far short of the parameters laid down by the
Constitutional Court. The application for a postponement was
made from
the bar without any factual support for it under oath.
The Court was not provided with an explanation why the respondent,
while previously represented, did nothing to file answering papers.
Also, an explanation was absent why the respondent’s
erstwhile
attorney was substituted the day before the hearing.
[21]
While the Court has sympathy for the position of the respondent’s
legal team having been
briefed at short notice, what would have
sufficed is at least a short affidavit simply explaining the reasons
for the respondent’s
failure to file papers since the May 2021
order, also the sudden failure by her previous attorney of record to
continue to represent
her.
[22]
This Court is of the view that by refusing the respondent a further
postponement would not result
in an injustice. The respondent
has had an attorney for a significant period (i.e. 5 months) and
could have had the opportunity
to place her defence before the court
any time during this period.
[23]
As the Appellate court has said
[6]
that the interest of other litigants, like the applicant, the minor
child and even the Court is also important. Therefore,
in
the absence of any substantive application for a postponement this
Court’s ability to exercise its discretion in favour
of the
respondent is restricted.
[24]
Finally, any prejudice that the respondent could conceivably complain
off is trumped by the situation
the minor child finds itself in.
The curator has carefully considered the best manner in which to
reinstate contact between
the respondent and the minor child, with a
well-constructed support system of professionals who will ensure that
the child’s
interests are not subordinated to the wishes and
impulses of the applicant and respondent where these are
inappropriate and counter
to his interests. Further the
curator’s recommendations operate to the advantage not only of
the minor, but also of
the respondent, as a program is designed to
afford her contact with the minor, which she does not presently
enjoy.
[25]
It was also the Court’s impression that the respondent in
effect does not take serious
issue with most of the findings by the
curator in her report. This is apparent from the fact that even
though the matter
stood down for almost an entire day and the
curator’s report, as supplemented, as well as the proposed
draft order was discussed
by the respondent’s new legal team
with her, when the matter resumed at 15:15 counsel on behalf of the
respondent simply
pointed out concerns in the proposed draft order
that was limited to semantics or for which safeguards were
sufficiently catered
for in the order.
[26]
For all these reasons the application for a postponement was refused
and the order marked ‘X’
was made an order of Court.
A
MONTZINGER
Acting
Judge of the High Court
Appearances:
Applicant’s
counsel:
Adv Fiona Gordon-Turner
Applicant’s
attorney:
Andrew Miller & Associates
Respondent’s
counsel:
Adv Samkange
Respondent’s
Attorney:
Potgieter & Associates
[1]
See:
Spangenberg v
De Waal
[2007] ZAGPHC 233
;
[2008] 1
All SA 162
(T) and for the interpretation of rule 43:
E
v E and related matters
[2019]
3 All SA 519 (GJ).
[2]
See
Kwazulu-Natal
Joint Liaison Committee v MEC Department of Education, KwaZulu Natal
and Others
2013 (40 SA 262
(CC)
[3]
Also
Lekolwane and
another v Minister of Justice and Constitutional Development
[2006] ZACC 19
;
2007
(3) BCLR 280
(CC) para [17]
[4]
Carephone
(
Pty
)
Ltd
v Marcus NO and others
1999 (3) SA 304 (LAC)
para [54]
[5]
Gentiruco
A G v Firestone SA (Pty) Ltd
1969
(3) 318 (T) at 320 C - 321 B
[6]
In
McCarthy
Retail Ltd v Shortdistance Carriers CC
[2001] 3 All SA 236
(A)