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[2015] ZAGPJHC 34
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G v G (32377/12) [2015] ZAGPJHC 34 (29 January 2015)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE NO: 32377/12
DATE: 29 JANUARY 2015
In the matter between:
[C…..] [L….]
[G……]
...............................................................................................................
Applicant
And
[N…] [J….]
[G….]
.................................................................................................................
Respondent
J U D G M E N T
MASHILE, J:
[1] This is an application that came
before this court by way of urgency in terms of Rule 6(12) of the
Uniform Rules of this court.
The Notice of Motion reads as follows:
“2.That the Applicant be
permitted to relocate to Cape Town with the minor children during
December 2014.
3. That the Applicant be permitted to
have minor child, [G.......,] assessed at Bellavista Assessment
Centre as a matter of urgency
and that the Respondent be directed to
make payment of the costs in respect thereof.
4. That the Respondent be directed to
immediately sign all such forms, applications and/or documentation as
is necessary to:-
4.1 have[ G......] assessed at
Bellavista; and
4.2 enroll the minor children at their
respective schools in Cape Town.
5. That the Respondent make immediate
payment of the deposits in respect of the minor children’s
enrolment at their respective
schools in Cape Town.
6. That the order of His Lordship the
HonourableMr Justice Vally dated 19 April 2013 be varied as follows:-
6.1 by the deletion of paragraph 1
thereof and the substitution therefore of the follows:-
‘1.1 The Respondent shall sign a
lease agreement in respect of the Applicant's rental accommodation of
her choice in Cape
Town (“the Cape Town residence”) in an
amount of R40 000.00 per month for a period of 24 months from 1
December 2014.
1.2 The Respondent shall make payment
of the deposit required by the landlord in respect of the Applicant’s
rental accommodation
referred to in 1.1 above;’
6.2 by the deletion of the words
“former matrimonial home” from paragraph 2 and the
substitution therefore of the words
“the Applicant’s Cape
Town residence”;
6.3 by the deletion of paragraph 2.1
and the substation therefore of the following:
“2.1 The monthly rental payment
in respect of the Cape Town residence.”
7. That the remainder of the order of
His Lordship the Honourable Mr Justice Vally remain in operation.
8. That the Applicant be permitted to
remove the furniture at the former matrimonial home and have same
delivered to her Cape Town
residence.
9. That the Respondent make payment of
the costs of this application on the scale as between attorney and
client.”
[2] The parties herein are involved in
a discordant divorce punctuated by various applications including
Rule 43 Applications beginning
with one heard and granted by Vally J
culminating in the most recent granted by Victor J in August 2014.
[3] The Applicant mainly seeks an order
permitting her to relocate to Cape Town with the minor children. The
other reliefs that
she is seeking are ancillary to relocation or have
been resolved. Accordingly, the central issue is whether the court
should grant
an order allowing her to move to Cape Town with the
minor children.
[4] The Respondent has raised two
points in limine and these are that the application is firstly, not
urgent and secondly, it is
a disguised Rule 43(6), which this court
should not counternence as it does not comply with the uniform rules
of this court.
[5] It is convenient to deal first with
these two points and then turn to the main thrust of the judgment.
The Applicant avers
that she first raised the subject of relocation
to Cape Town with the minor children with the Respondent in late
2013. The parties
have been discussing the subject of the
Applicant’s possible move to Cape Town with the children
throughout the better part
of 2014. During those discussions, the
Respondent did not outrightly reject the idea of the move to Cape
Town.
[6] It was only in September 2014 that
the Respondent gave an unambiguous indication that he would not
support the relocation.
Following the Respondent’s adoption of
that stance and because the Applicant had already planned to move to
Cape Town in
December 2014 in preparation for the minor children to
begin school in 2015 there, she launched these proceedings by way of
urgency.
[7] This application could not have
been brought in the normal course as it would have been too late to
obtain a date of hearing
in 2014. For that reason, the question
whether the relocation would be sanctioned by the court or not would
have remained unclear.
The minor childrens position on schooling
matters would therefore have been precarious, a chance that she was
not willing to take.
[8] The Respondent contends that this
application is not urgent or if it is, it was self-manufactured
because the Applicant has,
in her own version, been aware since late
2013 that she wanted to relocate to Cape Town with the minor children
yet she waited
until November 2014 to launch this application. The
Respondent denies having been ambivalent about the Applicant’s
proposed
move to Cape Town. However, he concedes that he did
consider the matter previously without agreeing to it though. He
later made
a firm resolution that it would not be in the best
interest of the minor children to move.
[9] I have considered the matter and to
the extent that the Applicant was not certain whether or not the
Respondent would agree
to her relocation with the minor children at
least until September 2014 and that she wanted to know so that she
could secure schools
for the enrollment of the minor children in Cape
Town for 2015, this application was necessary and urgent.
[10] Turning to the question whether or
not this application is a disguised Rule 43(6) whose objective is to
vary the order of Victor
J. The Respondent ardently argued that the
Applicant should have complied with the provisions of Rule 43(6)
because the essence
of this application is to change the order of
Victor J without showing any changed circumstances as is required in
terms of the
aforesaid rule.
[11] If this court were to grant the
order as sought by the Applicant, the unintended outcome will be the
setting aside or variation
of the order of Victor J. This should
under normal circumstances be achieved by a Rule 43(6) application.
However, under these
circumstances, it is imperative to go beyond the
surface to establish what the application is really about. The
Applicant believed,
wrongly or correctly, that she is entitled to
relocate to Cape Town with the minor children. In that haste she
obviously overlooked
certain procedures and the effect they would
have on the result.
[12] To say that her primary objective
in launching the application was to alter the order without following
the requirements of
Rule 43(6) is too simplistic and ignores other
possibilities. The approach that this court adopts is that she was
within her right
to bring the application in the manner she did. The
second point in limine cannot therefore succeed. The disposal of
those two
points in limine prompts this court to address itself to
what I referred to as the thrust of the judgment earlier – is
the
Applicaant entitled to move to Cape Town with the minor children?
[13] When the application came before
this court on 4 November 2014, the main aim was to seek an order
permitting the Applicant
to move to Cape Town with the minor
children. The sole reason why it could not be finalized on that day
was that Victor J specifically
ordered in August 2014 that the matter
be referred to the Family Advocate for a report on the primary
residence of the minor children.
This court considered the matter
and thought that it would be imprudent to make a decision about the
Applicant’s relocation
to Cape Town with the minor children
without having had the benefit of an expert’s report, the
Family Advocate.
[14] The court had to call the Family
Advocate to come to court to explain why that office has not produced
a report despite Victor
J’s order that it be compiled as a
matter of urgency. The Family Advocate testified that while there is
such order, the
Applicant had until that date not furnished his
office with the relevant papers alternatively, if she had, his office
were still
processing them for administrative purposes. The court
immediately urged the parties to make all the relevant documents
available
to the Family Advocate such that his office would be able
to produce a report as urgently as the court had expected him to do.
[15] The Family Advocate promised that
if he could have the documents almost immediately he would guarantee
the production of a
report within three weeks, a promise to which he
adhered. His recommendations, supported by a report of a social
worker also in
the employ of the Department of Justice, reached the
Registrar a week prior to the hearing hereof.
[16] When the matter came before this
court on 5 December 2014, the primary purpose was to finalise the
relocation question . To
this court’s total surprise, the
Appplicant instead proposed that the matter be postponed sine dies
with costs reserved to
enable her to challenge the report of the
family advocate with which she was in disagreement.
[17] The Applicant contended that the
postponement would not be prejudicial to the Respondent as she was
undertaking not to move
to Cape Town until receipt of her own private
independent expert report. Her further motivation for the
postponement was that
the matter should be postponed as it touches on
the lives of the minor children. To proceed with the application
would mean that
the case of the Applicant would be dismissed. I must
add that the Applicant argued all this without a proper substantive
application
for postponement.
[18] The Respondent, quite correctly in
my opinion, opposed the application for postponement. The
Applicant’s attempt to
have the matter postponed sine dies is
tantamount to saying that now that the report of the family advocate
is not in favour of
the relocation of the minor children,the case
must be postponed to afford her an opportunity to supplement her
papers so that the
court can ultimately agree with her.
[19] Parties come to court to have
finality on their matters. It is only in those deserving instances
where the court will consider
a postponement favourably and this does
not seem to be one of those. Firstly this matter was brought as a
matter of urgency and
secondly this court had to put pressure on the
office of the family advocate to produce a report within three weeks
so that the
parties could have certainty.
[20] It is indubitably financially
prejudicial to the Respondent to come to court expecting the matter
to be resolved only to be
confronted with a postponement. Moreover,
the Applicant proposes that costs be reserved. What will stop the
Applicant in the future
not to set the matter down simply because the
report of the independent expert does not accord with her
expectations? It seems
that there is nothing.
[21] It is also possible that having
set the matter down, she may again apply for a postponement so that
she obtains another expert
report that will satisfy her. This court
is not well disposed to speculate on what the Applicant’s next
move could be in
the future. It is only fair that this application
be heard and finalized now once and for all. For that reason, the
court turns
down the application for a postponement.
[22] The ruling on the postponement
leaves this court to deal with the only remaining issue between the
parties and that is whether
or not the Applicant should relocate to
Cape Town with the minor children. The law on matters of relocation
is clear. The relocation
must be in the best interest of the minor
children as is prescribed in the Children’s Act No. 38of 2005.
In addition, an
applicant in the position of the Applicant is at
liberty to relocate with minor children provided his or her intention
is bona
fide and reasonable. The test applies to both relocation
within the borders of South Africa and abroad. See Jackson v Jackson
2002 SA 303
(SCA) and B v M 2006(9)BCLR 1034 (W) to which Counsel for
the Applicant referred this court.
[23] Accordingly, the following two
questions arise:
23.1 Is the proposed relocation in the
best interest of the minor children?
23.2 Is the Applicant’s intended
move bona fide and reasonable?
[24] Whether or not an applicant’s
proposed move is bona fide and reasonable should be a factual
enquiry. Needless to state
therefore that each case must be assessed
on its own merits. The Applicant has been living in Johannesburg,
Linkxfield, while
married to the Respondent and to date she continues
to do so.
[25] Her relationship with the
Respondent has become estranged a result of which she now holds the
view that it will benefit her
to be next to her family, mother,
father brother and sister-in-law all of whom are in the area of Cape
Town, Sea Point.
[26] Her family will give her the
emotional support that she cannot get in Johannesburg. Furthermore,
once the minor children are
settled, her mother will give her support
by fetching them from school such that she could start looking for
employment.
[27] As the primary custodian parent of
the minor children, her move to Cape Town will of necessity be in
their best interest.
She does not see herself being separated from
them as that will prejudice her relationship with them. Her
proposed move to Cape
Town is supported by her psychologists, Ms
Becker and, Ms Chelvers.
[28] The Applicant asserts further that
the Respondent whom she describes as ‘exceedingly wealthy’
can still exercise
his rights as per the orders of Van Oosten and
Victor JJ. She does not foresee any problems whether financially or
otherwise for
The Respondent to fly to Cape Town to see the children
as he does presently in Johannesburg.
[29] In response to the Applicant’s
averments, the respondent alleges that it will not be possible for
him to travel to Cape
Town on a weekly or monthly basis as this will
necessarily involve increased costs for him. Moreover, it will take
him away from
his only source of income, his work.
[30] The relocation of the minor
children means that he will have to seek accommodation in Cape Town,
transport and time off work
in order to exercise his rights. His
ability to generate income will be immensely impaired and that could
have devastating repercussions
for both the minor children and the
Applicant especially as she is unemployed and fully dependent on the
monthly maintenance that
he pays.
[31] The Family Advocate unequivocally
recommends that the status quo be maintained because to move the
minor children to Cape Town
will reverse the stability that has
prevailed since the introduction of the increased access by their
father. The Applicant herself
has agreed that all three minor
children like their father and that they cannot wait to visit him.
The Family Advocate also alludes
to the fact that Gabriel, the eldest
of the minor children appears settled with her friends at school.
[32] Moving them to Cape Town under
these circumstances could upset their routine and bring unnecessary
shock to their lives at
the time when they are beginning to settle.
The Family Advocate is an expert in these kind of matters and he
undoubtedly compiled
the report with the best interest of the minor
children in mind. This court has no reason to doubt the outcome and
accordingly
adopts it.
[33] In the result, the following order
is made:
1. The application is dismissed;
2. The Applicant is ordered to pay the
costs as between attorney and client.
B MASHILE
JUDGE OF THE HIGH COURT OF SOUTH
AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
Date of Hearing: 9 December 2014
Date of Judgment: 29 January 2015
Counsel For Plaintiff: Adv. L. Segal
Instructed by: Deanne Kahn Attorneys
Counsel For The Defendant: Adv. I.
Mouton
Instructed by: Michael Krawitz and
Co