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[2011] ZAGPJHC 246
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Herbst v Ossemane (2009/2024) [2011] ZAGPJHC 246 (28 September 2011)
IN
THE SOUTH GAUTENG HIGH COURT, JOHANNESBURG
(REPUBLIC
OF SOUTH AFRICA)
CASE
NUMBER: 2009/2024
DATE:
28 SEPTEMBER 2015
In
the
application
between
HERBST,
QUINTIN
.................................................................................................................
Applicant
And
OSSEMANE,
ZAIDA
............................................................................................................
Respondent
JUDGMENT
[1]
This is an application in terms of which the Applicant, the natural
father of a minor child, Cleo Kimberly Herbst (“Cleo”),
seeks an order awarding him full parental responsibilities and right
of care, guardianship and contact in respect of Cleo, together
with
ancillary relief. More particularly, he wants:
1.1
to be awarded full parental
responsibilities and rights with regard to the care of Cleo, as
contemplated by Section 18(2)(a) of
the Children's Act;
1.2
an order that primary residence of Cleo be
awarded to him;
1.3
to be awarded full parental
responsibilities and rights with regard to the guardianship of Cleo
as contemplated in Sections 18(2)(c)
and 18(3) of the Children's
Act; and
1.4
an order that he be awarded specific
parental responsibilities and rights with regard to contact with the
minor child as contemplated
in Section 18(2)(b) of the Act to the
Respondent which contact is to be exercised by the Respondent on
prescribed terms.
[2]
By way of a notice of amendment dated 1 April 2010, the
Applicant’s prayers were amended to introduce certain further
relief which would prevent removal of Cleo from the Republic of South
Africa (“RSA”). An interim order is currently
in place
affording the Applicant certain interim contact with Cleo.
[3]
The papers in this matter amount to some 941 pages indicating the
level of acrimony which currently exists between the parties.
When the matter was first called, there was a difficulty with the
pagination of the papers in accordance with the new Practice
Manual
Directives and the Respondent’s Counsel sought an order that
the matter to be struck from the roll with costs.
[4]
Despite the matter not complying with the Practice Manual and in what
I consider to be the interests of the minor child so as
not to
delay the matter further, I allowed the Applicant’s legal
representatives an opportunity to put the papers in
order.
[5]
I have also been asked to grant a punitive costs order against the
Applicant’s attorney of record,
de bonis propriis
,
consequent upon the filing of the Applicant’s supplementary
affidavit dated the 1
st
of April 2010. It is
regrettable that the level of acrimony between the parties has
expanded to the level of involving their
respective legal
representatives.
[6]
Having read through the papers, I must comment that they are replete
with accusations and counter-accusations of improper and
violent
behaviour which do very little to assist in determining the issues at
hand, and do little to promote the best interests
of the minor
child.
[7]
On the 14
th
of May 2009 the Court requested a report from
the Family Advocate and granted the parties leave to supplement their
papers after
the recommendation of the Family Advocate became
available.
[8]
The Family Advocate’s report became available during August
2009. In this report it was recommended that Cleo’s
primary residence be awarded to the Respondent.
[9]
The application was postponed on a number of occasions, being the
24
th
of November 2009 and the 24
th
of March
2010 and has now finally been argued.
[10]
On the 1
st
of April 2010 the Applicant filed a
supplementary affidavit which, together with the amended notice of
motion to which I have referred
above, runs to some 296 pages.
[11]
The Respondent contends that the supplementary affidavit which the
Applicant filed with leave granted by the Court on 24
th
of
March 2010, for the purpose of addressing the issues raised by the
Family Advocate, failed to achieve its purpose. On
this basis,
the Respondent seeks an order that her costs incurred in dealing with
the supplementary affidavits be paid by the Applicant’s
attorney
de bonis propriis
. The approach adopted by the
Respondent is a technical one: she contends that the Applicant has
failed to make out its case in
its founding papers and cannot do so
in supplementary affidavits. This is pertinently raised in the
context of the Applicant’s
allegedly seeking to introduce a new
cause of action, namely, the additional relief sought in respect of
the removal of Cleo from
the RSA.
[12]
I am mindful that we are here not dealing with a normal commercial
matter, but with a family matter where the interests of
a four year
old child are paramount. The approach adopted by the parties is
that which is thus eloquently described in Clemsen
v Clemsen
[1]
:
“
As
so often happens in these matters, the rules of Court are utilised as
weapons in a fight to destroy the opposition. As
it happens in
most wars of attrition, by the time the war has come to an end, both
sides have lost.”
[13]
With due regard to the Respondent’s technical objection, I do
not intend, in these circumstances, to deal with the matter
on that
basis. I consider Cleo’s best interests as being sufficient to
allow the Applicant to supplement his founding affidavit
with
additional facts supporting the removal relief in his supplementary
affidavit. This is in accordance with the principle that
a Court can
allow this to be done in exceptional circumstances
[2]
.
[14]
In the application, the Applicant seeks an order that the primary
residence of Cleo be awarded to him subject to the Respondent’s
defined rights of contact.
[15]
It is common cause between the parties that Cleo was born on 6 May
2006, is four years old and was born of a relationship
between
the parties which had commenced in 2005 and terminated during or
about March 2008. The parties never married.
Since their
separation, Cleo has been primarily resident with the Respondent.
[16]
The Applicant has enjoyed unsupervised, albeit limited, contact with
Cleo during the separation and plays an active role in
Cleo’s
life. From the papers, it appears that this contact has been a
source of ongoing and increasing conflict between
the parties, on
occasion resulting in physical violence.
[17]
It is not disputed on the papers that the Applicant has an active
interest in Cleo’s life. He was present in Court when
the
matter was heard. The reports of the Family Advocate and the report
of the Family Counsellor makes mention of the acrimonious
relationship between the parties which is a serious area of concern.
It is regrettable that two adults cannot put their differences
aside,
however hard it may be, in order to consider the best interests of
their child as a matter of paramount importance.
[18]
The Family Advocate’s report confirms that Cleo has a healthy
relationship with both her parents and the Family Counsellor
confirms
that “
there seems to be”
a positive bond between
the minor child and both the Applicant and the Respondent. The
observations of the Family Counsellor are
however not detailed enough
to enable me to make a proper finding on the important issues here at
play and further detailed expert
reports are required. Counsel
representing the parties were in agreement that the matter is not
ripe for a final determination
of the application on the papers as
they stand.
[19]
It is common cause between the parties, as confirmed by the Family
Advocate in the report that whilst the parties were living
together,
they both cared for the minor child with the assistance of their
domestic helper and that since separation, the Respondent
has been
the primary caregiver.
[20]
The Applicant in the papers contends that his contact with Cleo has
been frustrated since his separation from the Respondent.
The
Respondent denies these allegations and it is impossible to make a
determination on this issue without the hearing of oral
evidence. The
Family Advocate’s observations that the Applicant is being
“
melodramatic”
in his complaints against the
Respondent are not useful in determining where the best interests of
the minor child may lie. The
recommendations of the Family Advocate,
based on the rather limited facts set out in the reports are that the
parties be made co-holders
of full parental responsibilities and
rights in respect of Cleo which include guardianship, that the
primary residence and care
of Cleo should remain with the Respondent
and that the Applicant be allowed to remove the minor child as per
the standard guidelines.
I am not satisfied that simply accepting the
Family Advocate’s recommendations in these particular
circumstances would be
appropriate as many important issues, such as
the allegations and counter allegations of violence and drug abuse
have not been
adequately addressed. In my view it is necessary that a
full and proper evaluation of all the parties be undertaken and
reported
upon.
[21]
In summary, the personal circumstances of the parties are the
following:
21.1
The Applicant is a educator, whilst the
Respondent is a self-employed Karate Instructor. Both parties are
gainfully employed;
21.2
Neither party is currently in a
relationship;
21.3
Both parties have a regular income;
21.4
Of concern is that the parties accuse each
other of smoking cannabis and using drugs. Both parties were
sent for drug tests,
but the results have not been made available.
[22]
It was suggested to the parties that they consult a Dr Van Onselen, a
Clinical Psychologist, in order
to obtain full psychological
evaluations of each of the parties concerned, specifically in light
of the accusations of violence
and aggression which the parties make
against each other.
[23]
The Respondent, however, refused to co-operate and neither Cleo nor
the Respondent have been evaluated.
Two reports were provided by Dr
Van Onselen which relate mainly to the Applicant and refer to
interviews conducted with certain
individuals. Dr Van Onselen
saw mediation between the parties as mandatory. One of his great
concerns was the anger, stress,
anxiety, frustration and destructive
emotions which existed between the parties. It appears
improbable, however, in light
of the long history of the matter, that
these differences can be resolved by means of mediation. The
Respondent's refusal
to submit herself and Cleo to evaluation is of
concern as the best interests of Cleo can never be finally determined
until this
has been done properly.
[24]
The papers also contain a report of Mrs Garb, a Forensic Social
Worker, who provided a report recommending
the appointment of a Case
Manager who would assist the parties to facilitate communication.
A concern raised by her was that
a mechanism for dispute resolution
must be considered. Mrs Garb indicated in her report that
primary residence was
not at issue in this matter. A reading of the
papers indicates this view to be incorrect. The relevant issues
do not, as
Mrs Garb suggests, relate purely to the Applicant's
contact with Cleo, but are much wider. Mrs Garb further
emphasised the
difficulties between the parties arising from the
clear lack of trust in each other. In these dynamics the levels
of acrimony
between the parties appears set to continue and spiral.
[25]
In my view it is not possible to make a proper and considered finding
on the application with the information
currently available. In
light of the fact that both parties albeit unconsciously, may
be acting within the parameters
of their own agendas, it is in my
view necessary to obtain separate legal representation for the minor
child. I am mindful of the
provisions of Section 28 of the Children’s
Act, 38 of 2005 (“the Children’s Act”) but do not
think that
the circumstances in the current matter are such that a
State appointed legal representative would be appropriate and Cleo is
too
young to give any active input. In my view the parties, who both
profess to be acting in the best interests of Cleo, would in these
circumstances best act in her interests if they are jointly liable
for the costs of such a legal representative.
[26]
The application is essentially one in terms of Sections 23 and 24 of
the Child Care Act.
[27]
I was advised by Counsel that there is an interim order in place, the
terms of which were agreed upon
between the parties, which currently
regulates the Applicant's contact with Cleo. The Applicant contends
that the current order
relating to contact has not been suitable and
that his contact has been frustrated.
[28]
The Respondent seeks to underplay the incidences of frustration set
out in the Applicant's supplementary
affidavit by contending that she
has not been the cause of this frustration and has attempted to
advance explanations for specific
instances where she was unable to
allow the Applicant contact with the child. This position is
unsatisfactory. I am
however not dealing with a contempt
application, but urge the parties to comply with the said order,
failing which undoubtedly
further unnecessary wasted costs will be
incurred in contempt proceedings.
[29]
In my view, the interim order should not at this stage be varied
dramatically as there is insufficient
information available to gauge
the appropriateness of the dual primary residence proposal mooted by
the Applicant without having
all the relevant facts. It would in my
view be unwise to unsettle Cleo by alternating her primary
residence. I am of the
view that the Applicant should however
have more contact with Cleo in order to foster their
relationship.
[30]
Although the investigation conducted by Dr Van Onselen appears
prima
facie
to have been far more extensive than that conducted by the
Family Advocate, it is still not complete as the Respondent has
refused to submit herself or Cleo to psychological assessment.
This attitude adopted by the Respondent is inexplicable in
the
context that she professes to be acting in the best interests of
Cleo. Her refusal appears strange in the circumstances and
it is
accordingly in my view important that she does subject herself and
Cleo to such examination.
[31]
In his notice of amendment, the Applicant seeks to introduce a claim
for ancillary relief aimed at
preventing the Respondent from removing
the minor child from the boarders of South Africa. It is not
disputed that the Respondent
on occasion has done so. I intend
granting an interim order granting the Applicant some relief in this
regard.
[32]
The Respondent's objection to prayers 3 and 4 of the notice of motion
in terms of which the applicant
seeks relief against the South
African Department of Home Affairs, which is not a party to
these proceedings, is in my view
well taken. It is at this
stage however not necessary to make any finding in this regard as the
application cannot be finally
determined at this stage.
[33]
It does not appear that it is seriously in dispute between the
parties that the Applicant is entitled
to full parental
responsibilities and rights in regard to the guardianship of the
minor child as contemplated by Sections 18(2)(c)
and 18(3) of the
Children’s Act.
[34]
What is at the centre of the dispute between the parties is the care
and primary residence of the minor
child and the contact between Cleo
and her respective parents.
[35]
From the papers, the Applicant further appears entitled to acquire
parental responsibilities and rights
as envisaged in Section 21(1) of
the Children’s Act. There is no dispute that at the time
of Cleo's birth he was living
with the Respondent in a permanent life
partnership and he has consented to be identified as Cleo's father.
In relation to the
third requirement under this section, whether the
Applicant has contributed or attempted in good faith to contribute to
Cleo's
upbringing and expenses in connection with the maintenance of
Cleo for a reasonable period as envisaged by Section 21(b), it is
not
clear from the papers whether this issue is strenuously in dispute
but, insofar as a dispute exists, Section 18(3)(a) provides
a remedy
and the parties must refer this issue for mediation prior to the
hearing of the matter by this Court.
[36]
There are so many disputed facts regarding what would be in the best
interests of Cleo in relation
to her primary residence and care, that
the matter cannot be determined on paper and these disputes must be
referred to oral evidence.
To await the expert reports , which are in
my view required, prior to ordering such a referral, would only serve
to delay the proceedings
further and would increase the incidence of
costs.
[37]
In light of the nature of these proceedings and in accordance with
Section 29(5) of the Children’s
Act, a Court is granted certain
powers:
"The Court
may for the purposes of the hearing order that:-
(a)
a report and recommendations of a
Family Advocate, a Social Worker or suitably qualified person must be
submitted to the Court;
(b)
a matter specified by the Court must
be investigated by a person designated by the Court;
(c)
a person specified by the Court must
appear before it to give or produce evidence; or
(d)
The Applicant or any party opposing
the application must pay the costs of any such investigation or
appearance."
[38]
Of further relevance is Section 29(6) of the Children’s Act,
which provides as follows:
"The Court
may, subject to section 55: -
(a)
appoint a legal practitioner to
represent the child at the court proceedings; and
(b)
order the parties to the
proceedings, or anyone of them, or the State if substantial injustice
would otherwise result, to pay the
costs of such representation."
[39]
Section 28(1)(h) of the Constitution, 1996 states that every child
has the right to have a legal practitioner assigned to the
child by
the State and at State expense, in civil proceedings affecting the
child, if substantial injustice would otherwise result.
The
Constitutional Court has interpreted this section, relying in part on
International Law, to give effect to children’s
right to
participation in litigation affecting their interests. In Du Toit and
Another v Minister of Welfare and Population Development
& Others
(Lesbian and Gay Equality Project as
Amicus
Curiae
)
[3]
the Court invoked this section to appoint a
curator
ad
litem
to
protect the interests of very young children. My likewise
invoking this provision in the present instance will ensure that
Cleo’s rights are catered for and will also ensure her right to
participate (in the technical sense) in the proceedings as
she will
be directly affected by the decision of the Court
[4]
.
The wording “a legal practitioner” is wide enough
to include the appointment of a c
urator
ad
litem
.
[40]
Section 62(a) of the Children’s Act states one of its
principles as being that “
all proceedings, actions or
decisions in a matter concerning a child must respect, protect,
promote and fulfil the child’s
rights as set out in the Bill of
Rights. The best interests of the child stand as set out in
Section 7 and the rights principles
set out in this Act.
”
The child’s right to have separate representation during
legal proceedings is clearly included in the ambit
of Article 12(2)
of the Convention on the Rights of the Child and Article 4(2) of the
African Charter on the Rights and Welfare
of the Child.
[41]
A child’s right to separate legal representation is a
relatively new principle and has not been raised in many cases.
In R
v H and Another
[5]
Moosa J
appointed a legal representative for a minor child in
proceedings relating to Section 21(1)(b) of the Children’s
Act. Soller NO v G and Another
[6]
deals fully with the interpretation of Section 28(1)(h) wherein it is
stated “
The
significance of Section 28(1)(h) lies
in
the recognition, also found in the Convention on the Rights of the
Child, that the child’s interests and the adults interests
may
not always intersect and that a need exists for separate
representation of the child’s view.”
[7]
[42]
Kassan in Sloth-Nielsen and Du Toit (editors) Trials and
Tribulations, Trends and Trials, pages 237 to 238 suggests the
following
useful guidelines in considering whether a representative
should be appointed in a matter:
42.1
The presence of allegations of sexual,
physical or emotional abuse;
42.2
If the parents have been involved in
lengthy and acrimonious litigation over care, contact and maintenance
issues;
42.3
The complexity of the matter, including the
length of the hearing or trial, a number of expert witnesses involved
and allegations
that one parent is emotionally unstable; and
42.4
Where there is reason to believe that one
of the parties is withholding information from the Court.
[43]
In addition to the powers conferred by Section 29(5) and (6) of the
Children’s Act, the Court also has an inherent power
at common
law to appoint a c
urator
ad litem
for the minor child.
By virtue of Cleo’s tender age and the fact that she is too
young to provide any input, I am of the view
that the appointment of
a
curator ad litem
would be more appropriate than the
appointment of a legal representative.
[44]
In terms of Section 29(5) of the Children’s Act, the Court is
expressly authorised to appoint a legal representative
for a child
and may order that the parties to the matter be held responsible for
payment of the legal costs of this representation.
This section
echoes Section 6(4) of the Divorce Act. The duty of the
curator
ad litem
is to assist the Court and the child during legal
proceedings and to look after the child’s interests. In my
view, the best
interests of Cleo would be served if the parties are
jointly directed to pay the legal costs of the
curator ad litem.
[45]
I have approached an independent advocate who has not acted for
either party, Adv Sarieta Liebenberg, an experienced practitioner
in
this field who has consented to be appointed as
curatrix ad litem
and I intend to appoint her as such. The costs of the
curatrix ad litem
must be borne by the parties equally,
who must, via their attorneys of record, deposit funds in trust for
the purpose of paying
the
curatrix ad litem’s
fees.
If either of the parties fail to do so, the non defaulting party is
granted leave to approach the Court on the same
papers, supplemented
if necessary, for appropriate relief. I intend granting the
curatrix
ad litem
sufficiently wide powers to enable her to ensure that
all necessary investigations are conducted to enable the matter to be
finalised
and to ensure the appropriate monitoring of Cleo’s
hand over, in the interim, when the Applicant exercises his rights of
contact.
[46]
It is also necessary to provide an interim mechanism whereby the
acrimony between the parties is contained during the handing
over of
Cleo when the Applicant exercises contact with her via the
intervention of an independent third party. Detailed provisions
can be made in this regard as guided by the
curatrix ad litem
and relevant experts, but the question then arises as to who must pay
such costs. In my view, it would be equitable if the parties
shared
these costs jointly. Hopefully, the fact that costs will be
incurred by the parties in this regard will go some way
to convince
them to act reasonably. Both parties are gainfully employed and
on the papers there is no reason why either of
them should be excused
from liability for these costs. I urge the parties to adopt a
reasonable and sensible approach in order
to limit costs as their
available funds could be much better spent attending to Cleo’s
needs, rather than their own.
This is however a choice each of
them will have to make.
[47]
I do not intend at this stage to make any punitive costs orders.
[48]
I accordingly make the following order:
1.
The application is referred to oral evidence on the following
issues:-
i.
Whether the primary residence of Cleo
Kimberly Herbst (“Cleo”) should be with the Applicant or
the Respondent;
ii.
The terms on which contact with Cleo should
be exercised in her best interests.
2.
The evidence shall be that of any witness
whom the parties or either of them may elect to call, subject however
to what is provided
hereunder.
3.
Save in the case of the parties, neither
party shall be entitled to call any witness unless a statement was
served on the other
party at least fifteen (15) days before the date
appointed for the hearing (in the case of a witness to be called by
the Applicant
and at least ten (10) days before such date (in the
case of a witness to be called by the Respondent) containing the
evidence to
be given in chief by such person aforesaid; unless
the Court at the hearing permits such person to be called, despite
the
fact that no such statement has so been served in respect of
his evidence.
4.
Either party may subpoena any person to
give evidence at the hearing whether such person has consented to
furnish a statement or
not.
5.
The fact that a party has served a
statement in terms of paragraph 3 above, or has subpoenaed a witness
shall not oblige such a
party to call the witness concerned.
6.
Within twenty (20) days of the making of
this order, each of the parties shall make discovery on oath of all
documents relating
to the issues referred to in paragraph 1 hereof
which are or have at any time been in the possession or under the
control of such
party. Such discovery shall be made in
accordance with Rule 35 and the provisions of that Rule with regard
to the inspection
and production of documents discovered shall be
operative.
7.
A report and recommendations of a clinical
psychologist who has evaluated the Applicant, the Respondent and Cleo
on all issues relevant
to the best interests of Cleo, including her
care, primary residence and contact, must be submitted to the Court
hearing the referral
to oral evidence, which report must be submitted
no later than 45 calendar days before the date allocated for hearing.
8.
Pending the finalisation of this
application, the Respondent shall not remove the minor child, Cleo,
from the Republic of South
Africa without the prior written consent
of the Applicant, which consent shall not be unreasonably withheld.
9.
Pending the final determination of this
application, the interim order relating to contact and specific
parental responsibilities
remains in force, as amended by 10
hereunder.
10.
In addition to the contact provided for in
the interim order referred to in 9 above, the Applicant will be
entitled to unsupervised
contact with Cleo every alternative Friday
from 18h00 to Saturday 18h00.
11.
Advocate Sarita Liebenberg is appointed as
curatrix
ad litem
for the minor child, Cleo Kimberly Herbst.
12.
The
curatrix
ad litem
is directed to investigate:
i.
the best interests of Cleo regarding her
care and contact;
ii.
where Cleo’s primary residence should
be;
iii.
the fitness of the Applicant and Respondent
as primary caregiver of Cleo, including any allegations of violence
and drug abuse;
iv.
any suitable arrangements to contain and
limit conflict between the parties during the hand over of Cleo when
the Applicant
is exercising his rights of contact to Cleo;
v.
any other matters which are relevant to the
best interests of Cleo, and to report to this Court on these issues
on the date oral
evidence is to be heard.
13.
The
curatrix
ad litem
is
clothed with the following powers:
i.
to appoint an appropriate psychologist or
other suitable experts whose services are required to obtain the
report(s) referred to
in 7 and 12 above;
ii.
to obtain the results of drug tests
performed on both parties, and if deemed necessary, to request
further drug tests to be performed
and to obtain the results thereof;
and
iii.
to appoint a social worker or other
suitably qualified person to be present at or perform the handover of
Cleo between the Applicant
and the Respondent.
14.
The
curatrix
ad litem
shall
have the power to instruct any clinical psychologist, social worker
or other appropriate expert to provide a report and recommendations
on the following issues:
i.
The best interests of Cleo in relation to
her care and contact;
ii.
The relationship between the Applicant and
Cleo and the relationship between the Respondent and Cleo and any
other relevant person
and the child;
iii.
The suitability and fitness of the
Applicant and Respondent as primary caregiver of Cleo;
iv.
The degree of commitment that the parties
have shown towards the child;
v.
The nature and extent of future contact
between Cleo and the parties;
vi.
The appropriate method to be employed to
limit negative interaction and/or conflict between the parties when
contact is exercised
by the parent with whom Cleo does not reside;
and
vii.
Any other factor which may have an impact
on the best interests of the minor child.
15.
Pending the final determination of this
application, whenever the Applicant exercises his rights of contact
to Cleo as stated in
9 and 10 hereof, the handover of Cleo will take
place under the supervision of and in the presence of a social worker
or other
suitably qualified person, whose identity and terms of
engagement will be determined by the
curatrix
ad litem
in accordance with generally
accepted norms appropriate to the level of acrimony which exists
between the parties from time to time,
until such time as, in the
view of the
curatrix ad litem
and the duly appointed social worker or other suitably qualified
person there is no conflict between the parties and there is no
need
for the handover to be conducted in the presence of and under the
supervision of such social worker or other suitably qualified
person.
16.
The parties shall be jointly and severally
responsible for the following costs:
i.
the costs of the
curatrix
ad litem
;
ii.
the costs of the clinical psychologist
referred to in 7 above;
iii.
the costs of any expert(s) appointed by the
curatrix ad litem
in
accordance with 13 and 14 hereof and any person assisting with the
contact and handover of Cleo between the Applicant and the
Respondent
as referred to in 13, 14 and 15 hereof.
iv.
such expert, social worker and any person
assisting with the contact and handover of Cleo between the Applicant
and Respondent as
referred to in 12, 13, 14 and 15 hereof.
17.
The parties shall on demand by the
curatrix
ad litem
each pay equal amounts into
trust at their respective attorneys of record, which funds shall be
utilised to pay on demand the costs
of the respective parties
referred to in 16 hereof.
18.
In the event of either party defaulting in
their obligations as detailed in 16 and 17 hereof, the non-defaulting
party is granted
leave to approach this Court on the same papers,
supplemented if necessary, for appropriate relief.
19.
The costs of the application are reserved.
EF
DIPPENAAR
ACTING
JUDGE OF THE HIGH COURT
Date of
hearing : 13 May 2010
Date of
judgement : 28 September 2010
For applicant
: Adv F Bezuidenhout
:E Da C Luiz
Attorneys
For respondent
: Adv R Gosslett
Clorinda
Scalco Attorneys
[1]
2000
All SA 629
W
[2]
See
Union Finance Holdings Ltd v IS Mirk Office Machines II (Pty) Ltd
and Another,
2001 (4) SA 842
W at 847D-E
[3]
[2002] ZACC 20
;
2003
(2) SA 198
CC at para 3
[4]
S
v M (Centre for Child Law as
Amicus
Curiae
[2007] ZACC 18
; ,
2008 (3) SA 232
CC at paragraphs 16 and 31
[5]
2005
(6) SA 535C
at 539
[6]
2003
(5) SA 430W
paragraphs 7 and 8
[7]
Ex
Parte Van Niekerk & Another: In re Van Niekerk v Van Niekerk,
[2005] JOL 1421
at para 7