About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2014
>>
[2014] ZAGPJHC 151
|
|
N v N (18042/2014) [2014] ZAGPJHC 151 (24 July 2014)
SAFLII
Note: Certain personal/private details of parties or witnesses
have been redacted from this document in compliance
with the law
and
SAFLII
Policy
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
(GAUTENG LOCAL
DIVISION, JOHANNESBURG)
CASE
NO: 18042/2014
DATE:
24 JULY 2014
[F………..
T………..
N……….....................]
........................................
Applicant
And
[M………….
J…………
N…………............]
....................................
Respondent
JUDGMENT
GRAVES AJ
1. The applicant
seeks relief in terms of Rule 43 of the Uniform Rules of Court
pending the outcome of divorce proceedings which
she instituted in
the Regional Court for the Regional Division of Gauteng, held at
Roodepoort under case number 840/2013. The summons
in this regard was
issued on 10 June 2013.
2. The relief sought
in the applicant’s affidavit in terms of Rule 43 originally
included a request for interim maintenance
for the three minor
children born of the marriage, H……..presently thirteen,
X………..presently
nine and N………….,
now 23 month old. From the Bar I was informed that the applicant
restricts her relief
in this application to:-
2.1 an order in
terms of
Section 18(2)
of the
Childrens’ Act 38 of 2005
to the
effect that both herself and the respondent be declared co-holders of
parental responsibilities in terms of this section;
2.2 that “residence”
of the minor children be shared between the parties on a weekly
basis;
2.3 that both
parties have reasonable contact with the minor children during the
week that they are with the other party, and reasonable
contact for
birthdays, public holidays and other important events.
3. The
Rule 43
application was served on the respondent’s attorneys on 20 May
2014. The respondent did not respond within the ten day period
referred to in
Rule 43(3)
and the applicant proceeded to enroll the
matter for hearing. On 18 July 2014 the respondent delivered an
opposing affidavit in
which he complained about the conduct of the
applicant during the divorce proceedings, which he says was
essentially vexatious
and irregular. He also raised an objection in
limine to the jurisdiction of this court to entertain the
Rule 43
application because of the pending divorce proceedings in the
Regional Court. He pointed to
Rule 58
of the Magistrate’s Court
Rules which permits a party to seek interim relief pendente lite, and
he said that he had brought
such an application in the regional court
on 26 May 2014 (just less than one week after the launch of the
applicant’s Rule
43 application). The application papers in the
regional court were not placed before me.
4. Mr Nkuna for the
applicant objected to the late delivery of the answering papers. He
however indicated that he was prepared to
argue the matter with the
inclusion of the opposing papers, particularly as the principal point
raised was the objection to jurisdiction.
5. Before dealing
with the jurisdictional objection I should note that the papers paint
a picture of considerable matrimonial discord
characterized by
accusations and counter accusations, including a previous
Rule 43
application, subsequently withdrawn, and an ex parte application
launched by the present applicant in December 2013 in terms of
Section 5(4)
of the
Domestic Violence Act 116 of 1998
, subsequently
withdrawn. Both parties have awaited a report by the Family Advocate
which was ultimately filed on 3 June 2014. Included
in the papers was
a report of a Family Counsellor, Ms N Lange, being a Family
Counsellor in terms of
Section 3(1)
of the Mediation in Certain
Divorce Matters Act 24 of 1987. This report summarized the features
of the breakdown in the relationship
between the applicant and the
respondent and recorded the desire of both parties to have what was
termed “primary residence”
of the three minor children. I
take this to mean primary custody. Hlengiwe was interviewed and,
although his inclination was to
live with his father, he appeared to
accept that the best solution would be to spend equal time with both
parents, in separate
residences. Xihluke presented as emotionally
distressed but was comfortable with both parents and on explanation
from the Family
Counsellor appeared to accept separate residences as
referred to above. Nhlavutelo could not be interviewed due to his
tender age.
6. The Family
Counsellor recommended the relief set out in paragraph 2 above, and
added that custody of the minor children should
be shared between the
parties on a weekly basis from Friday after school to the next
Friday, with the children being collected
from school.
7. In support of the
jurisdictional objection Mr Edwards for the respondent referred me to
Venter v Venter
1970 (1) SA 11
(T) and Green v Green
1987 (3) SA 131
(SECLD). In Venter there were divorce proceedings pending in the
Witwatersrand Local Division when the applicant moved the Transvaal
Provincial Division for interim custody of a daughter aged seven
years old pending the outcome of the divorce proceedings. The
application was struck from the roll on the basis that issues which
were connected to the main case should be heard in the same
division,
notwithstanding that there was concurrent jurisdiction. The lack of
urgency also disinclined the court to grant relief.
1
In Green (supra) the respondent in then application (plaintiff in the
action) had issued summons in the Durban and Coast Local
Division.
The defendant in the action in turn launched an application in terms
of Rule 43 in the South Eastern Cape Local Division
for maintenance
pendente lite for herself and three minor children and for a
contribution towards costs. Jones J found that in
the absence of
considerations of urgency the law and practice of procedure precludes
a party seeking interim relief when there
is litigation pending in a
court of another division.
2
The learned judge found support for his view in Venter (supra).
Neither of the judgments relied upon suggest that there are no
instances where two courts of equal competence can exercise
concurrent jurisdiction.
3
8. There are a
number of distinguishing features in the present case. First, this
court is superior to that of the Regional Court
in the hierarchy of
cases (notwithstanding concurrent jurisdiction regarding divorce
proceedings) and there can be no question
of separate judgments of
equal weight on the same point. Second, there is clearly an element
of urgency in this matter, particularly
from the perspective of the
minor children. The report of the Family Counsellor highlights the
tension between the parents which
has caused a degree of polarization
and stress to the two elder children. Correspondence from the
applicant’s attorney seems
to suggest that cohabitation is
practicable; this is unwarranted optimism given the evidence of
marital tension. The applicant
has secured suitable alternative
accommodation for herself at which she can accommodate the children
during her period of custody;
she is self-supporting and afford this
accommodation which appears to be in a townhouse complex.
9. The report of the
Family Advocate and the Family Counsellor emphasizes the paramouncy
of the interests of the minor children
and concludes that joint
custody in separate residences will be preferable.
10. The authorities
which indicate the undesirability of proceedings in two different
courts are distinguishable. I am satisfied
that this court, as upper
guardian of minor children, has jurisdiction, in appropriate
circumstances, to grant interim relief in
terms of Rule 43
notwithstanding that there are pending divorce proceedings in the
Regional Court. In this application the applicant
did not seek an
order for costs against the respondent, and I do not think that the
lateness of the respondent’s opposing
papers should alter this.
The applicant’s case is not entirely straightforward, and the
respondent was reasonably entitled
to challenge the jurisdiction of
this court.
11. Although the
parties are both legal guardians of the minor children the
acrimonious relationship justifies an order in terms
of
Section 18(2)
of the
Childrens’ Act. This
is in any event the recommendation
of the Family Advocate and Family Counsellor, and such an order may
well limit the potential
for future disputes.
12. I accordingly
make the following order:-
12.1 The applicant
and respondent are declared co-holders of parental responsibilities
and rights in respect of their minor children,
H………..,
X……….. And N……….. as
contemplated in
Section 18(2)
of the
Childrens’ Act 38 of 2005
.
12.2 Custody of the
minor children must be shared between the parties on a weekly basis,
preferably from Friday after school until
the next Friday, or
otherwise as mutually agreed, with custody being transferred in a
manner which is most conducive to the wellbeing
of the children.
12.3 Each party will
be entitled to reasonable contact with the minor children during the
week they are residing with the other
party including:-
12.3.1 Reasonable
telephonic contact;
12.3.2 Mother’s
Day and the applicant’s birthday to be spent with her and
Father’s Day and the respondent’s
birthday to be spent
with him;
12.3.3 Half of all
short school holidays irrespective of whose week it is during those
particular holidays;
12.3.4 A division of
long school holidays between the parties;
12.3.5 Christmas,
New Year and Easter alternating between the parties.
12.4 This order
above is made pending the final outcome of the divorce proceedings
between the applicant and the respondent in the
Regional Court,
Roodepoort, under case number 840/13.
Dated at
Johannesburg
on this 23rd day of
July 2014.
N J GRAVES
ACTING JUDGE OF
THE HIGH COURT OF SOUTH AFRICA,
GAUTENG LOCAL
DIVISION, JOHANNESBURG
Date of hearing :
22 July 2014
Date of Judgment
: 24 July 2014
Counsel for the
Applicant : Mr Nkuna
Attorney for
Applicant : DUDULA ATTORNEYS
ADDRESS : 132 FOX
STREET, JOHANNESBURG
TEL : 011 331
1585
REF :MR Y
DUDULA/TF/DIV13
Counsel for the
respondent : Mr Edwards
Attorney for the
Respondent: MACROBERT ATTORNEYS
ADDRESS :
MACROBERT BUILDING CHARLES & DUNCAN
TEL : 012 425
3400
REF : L E
SCOTT/2034723/CV
1
At
13A-C
2
At
132E-I
3
See
Green
at 143A