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[2015] ZAGPJHC 200
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Anspach v Opland (2015/28396) [2015] ZAGPJHC 200 (8 September 2015)
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: 2015/28396
DATE:
08 SEPTEMBER 2015
In the matter
between:
HEIDI
ANSPACH
.....................................................................................................................
Applicant
And
RUSSELL
MARTIN
OPLAND
............................................................................................
Respondent
J
U D G M E N T
MAKUME,
J
:
[1] In this application the applicant seeks an order against the
respondent in the following terms:
1.1
That
the rules relating to forms and service as required and provided in
the Uniform Rules of Court be dispensed with in terms of
Rule
6(12)(a) and that this matter be heard as one of urgency.
1.2
That
the respondent be ordered henceforth:
1.2.1
To
ensure that the minor child [J…..] [B….] [O……]
(J……) attends the [S……]
[G….]
[P…..], [5…… B…….], [B…….]
on every weekday on which Josh is in respondent’s
care between
now and the end of the year (unless Josh is certified by a medical
doctor to be ill) and to this end that respondent
timeously
transports J…. to the aforesaid playschool when J……
is in his care;
1.2.2
As
from January 2016 and provided J….. is offered a place there,
to ensure that J….. attends M….. M….
W……,
2…. B…… Drive, B……. on every
weekday on which Josh is in respondent’s
care (unless J……
is certified by a medical doctor to be ill) and to this end that
respondent timeously transports
J…….. to the aforesaid
playschool when J…… is in his care;
1.2.3
Not
to jeopardise J……’s chances of being offered a
place at M…… M…… W…….
School by way of written or oral communication to the school which
directly or indirectly negatively affects J…….’s
chances of being offered a place at that school;
1.2.4
To
contribute 50% of all costs associated with J……..’s
education, including but not limited to deposits, levies,
tuition
fees, books, stationery, uniforms, extramural activities, tours and
outings.
1.3
Costs
on the scale as between attorney and attorney.
[2]
This case involves a 5 year old child J….. B…. O……
(J……..) a male born on the 20
th
January 2010. Josh was born out of a short lived intimate
relationship between the applicant and the respondent.
[3]
When the relationship between the applicant and the respondent ended
they became and have since that time being involved in
legal wrangles
and dispute centred mainly around the care and custody of Josh.
This eventually resulted in a court order
on the 13
th
March 2013 being granted under Case Number 2012/5126. The court
order declared both parents as co-holders of full parental
rights and
responsibilities in terms of section 18 of the Children’s Act
No 38 of 2005.
[4]
The terms of that court order which was drafted by respondent’s
counsel are wide however the relevant portion for purposes
of this
judgment relates to the powers granted to a psychologist Dr Lynette
Roux as Case Manager with the following powers:
4.1 In the event
of written request (email acceptable) by either the Applicant or the
Respondent
for a recommendation on what is in the best interests of
J…….h, Dr Roux shall, insofar as she is able, within 5
calendar
days of such request, or sooner if circumstances warrant,
make a written recommendation in the best interests of Josh.
4.2 Any written
recommendation by Dr Roux shall be considered binding upon the
applicant and the
respondent who shall be obliged to implement such
recommendation immediately until subsequently revised or modified in
writing
by Dr Roux or as per 4.3 below.
4.3 The written
recommendation of Dr Roux shall not be final, pending a decision by a
court of law
having jurisdiction in the circumstances.
4.4 In the event
that either party objects to Dr Roux’s written recommendations,
they are entitled
to either request her reconsideration thereof or to
approach a court of law having jurisdiction in the circumstances.
4.5 Dr Roux is
specifically empowered to make any and all written recommendations
that she deems
to be in the best interests of Josh, except those
matters specifically reserved for the jurisdiction of the High Court
in the Children’s
Act 38 of 2005, section 45(3).
[5] The order of the South Gauteng High Court
went on to provide as follows:
“
In the
event that either the Applicant or the Respondent does not
specifically comply with this Order or with the most recent written
recommendations of Dr Roux, then the sheriff of the Court and/or
members of the South African Police Services are hereby requested
to
render any and all assistance to the Applicant or the Respondent, as
appropriate, in ensuring compliance with this order or
with the most
recent written recommendations of Dr Roux.
”
[6]
In pursuant to her duties and powers as described above on the 8
th
June 2015 Dr Roux delivered her Case Manager’s Report No 26
which report amongst others made the following recommendation
which
was binding on both parties. The recommendation was that an
application be made for Josh to be enrolled at Michael
Mount Waldorf
School in January 2016 and at Secret Garden Playschool from mid 2015.
[7]
On the 29
th
June 2015 the respondent addressed a letter to the applicant’s
attorneys in the form of an email which read as follows:
“
My
assumption (as a layperson) is that, if I launch civil litigation in
terms of the Court Order to have the former Case Manager’s
written recommendations reviewed, then the matter is considered sub
judice, and I am not obliged to comply pending the outcome
of that
litigation. If my assumption is incorrect, I still intend not to
comply, as I verily believe the recommendations are irrational,
and
not in Josh’s best interests.
”
[8]
On receipt of this letter the applicant’s attorneys replied to
the respondent directly and said the following:
“
The
Court Order dated 13
th
March 2013 sets out the procedure to be followed if either party
objects to a ruling by the Case Manager Dr Lynette Roux.
Until
such time as that procedure has been followed and the court of
competent jurisdiction has overruled Dr Roux’s recommendation
such recommendations are binding on both parties. As such you
will be required to comply with the recommendations irrespective
of
the fact that Dr Roux has now resigned. Kindly confirm that you will
do so pending the outcome of the pending litigation foreshadowed
in
your letter.
”
[9] On Tuesday the 14
th
July the respondent brought an
urgent application in this Court for an order
inter alia
suspending the Case Manager’s rulings in her reports and
ordering that Josh remain at his former school namely Cottage
Montessori
in Roodepoort. In that application he told the
honourable court in his founding affidavit that one of the reasons he
had
to bring the application as a matter of urgency was that he was
bound to comply with the Case Manager’s rulings. He said the
following in paragraph 21 of his affidavit:
“
Only
this court can overrule the written recommendations of the Case
Manager and I am obliged to implement the written recommendations
of
the Case Manager until and unless the court rules otherwise.
”
[10]
That application which was brought on urgency served before Acting
Judge Collis and on the 23
rd
of July the application was struck off the roll due to lack of
urgency.
[11]
In terms of the recommendation by Dr Roux Josh has now been enrolled
at Secret Garden Playschool with effect June 2015 and
on those
occasions when the minor child J….. is in the care and custody
of the respondent he has consistently shown reluctance
to take the
child to school. For instance it is said that on the morning of
Friday the 24
th
July he arrived at S….. G……. School with J…….
at about 08h00 in the morning and complained to
the applicant’s
attorney that the trip had taken 1 hour 20 minutes from his house to
take J….. to school. The
respondent further informed the
applicant’s attorneys that it was his intention to approach the
Constitutional Court on an
urgent basis as he believed that the
judgment by Acting Judge Collis did not take J…….’s
best interest into
account as she was required to do.
[12] The arrangement in terms of the court order of the 13
th
March 2013 is that Josh shares residence between applicant and the
respondent and on Mondays and Tuesdays J…… is
with the
applicant until after school on Wednesday and then with the
respondent on Thursdays and Fridays and he alternates weekends
with
each of the parents.
[13]
On Wednesday the 29
th
July the respondent fetched J…… from S………
G……. School and spent the Thursday and
the Friday with
J……. until after school on Monday the 3
rd
August. At 15h36 on the afternoon of Sunday the 2
nd
August 2015 the respondent sent an email to applicant’s
attorneys in which email he stated the following
inter
alia
:
“
I
decline to bring J…… to S….. G………
whilst he is in my care, and I decline all financial
responsibility
for such day care, which arises from your client’s unilateral
unlawful action, without prior consultation
with me. Your
client may collect Josh from my home at 1 pm on Fridays when it is
‘her’ weekend, and at 1 pm on
Mondays following ‘my’
weekends.
”
In
the same email he also informed the applicant’s attorneys that
he was opposed to J…… going to M…….
M…….
W……… School in 2016 as recommended and ordered
by the Case Manager.
[14]
On Monday morning the 3
rd
August 2015 the respondent did not take the minor child J……
to S……. G…… School and instead
addressed
a letter to the teacher a Mrs Kidson wherein he told her that:
“
I have
determined that (a) it is not necessary for me to bring J…….
to S……. G……., and
(b) that I have no
financial responsibility for his attendance there. I have
communicated as such to Heidi’s attorneys.
”
[15]
As a result of this the applicant’s attorneys addressed a
letter to the respondent on the 4
th
August 2015 and said the following:
“
Dear
Mr Opland
HEIDI
ANSPACH // YOURSELF
1.
We
refer to your email sent to us at 15h36 on the afternoon of Sunday
2
nd
August 2015.
2.
We
note from this email that you ‘decline’ to take J…
to the S……. G…… P………
when he is in your care, and that you ‘decline’ to pay
any of the costs associated with S….. G…….
3.
Notwithstanding
that you email was sent on 2 August 2015, our client has now found
out that in fact you did not take J……
to school on
Thursday 30 or Friday 31 July 2014.
4.
We
do not understand on what basis in law you believe you are entitled
to act in this manner.
5.
In
your affidavit dated 14 July 2015 in support of your abortive urgent
application, you stated that the recommendations of the
former Case
Manager, Dr Lynette Roux, were binding on you. On 22 July 2015, you
repeated this several times in court before the
Honourable Acting
Judge Collis.
6.
Your
actions in failing to take J…… to S……
G……. every day while he is in your care are
in direct
and flagrant contravention of the binding ruling of the former Case
Manager. They are also indicative of the contempt
in which you
hold the High Court , in that you gave the Court – a mere two
weeks ago – every indication that you would
be abiding by the
rulings of the Case Manager, when in fact it would now appear you had
no intention of so doing.
7.
Furthermore,
you are well aware of the ruling of the former Case Manager to the
effect that you and our client are liable in equal
shares for the
costs of J…..’s education. You have on several
occasions written to me reminding me that school
fees are jointly and
equally payable ‘as per the Children’s Act, the case
manager’s reports, the High Court Order,
the Fish Hoek Primary
cases, the Constitution, and basic parental responsibility, inter
alia’, (per your email to me and
others dated 4 March 2015).
8.
Your
conduct is grossly unreasonable, completely unacceptable, and
patently not in J……’s best interests.
9.
You
now force our client to bring an application on an urgent basis to
the High Court for such relief as our client may be advised
is
appropriate, but which will include:
9.1
an
order compelling you to abide by the rulings of the former Case
Manger, and in particular to take J….. to the S…….
G…… on every single week day between now and the end of
the year when he is in your care, and to M……
M……
W…… School next year in the event he is offered a place
there;
9.2
an
order for payment of half of all costs associated with Jo…..’s
education;
9.3
a
punitive costs order against you (ie an order on a higher scale than
the one already awarded against you).
10.
You
are sternly and specifically cautioned not to communicate with M……..
M….. W….. School in such a
way that you effective
sabotage J….’s chance of being offered a place at that
school, thereby indirectly flouting
the ruling of the Case Manager in
the misguided belief that you will get your own way ‘through
the back door’ if you
are unable to be successful by following
due process. We notice that you have already begun to do this,
and if you do not
cease immediately, we will also seek an interdict
against you.
11.
To
the extent that you may seek to rely on the specious semantic
argument set out in paragraph (e) of your aforesaid email, we again
caution you. This argument has no basis in either fact or in
law, and you are well aware of this, having repeatedly told
the Court
that you were bound to take J….. to his new school.
12.
Should
you be of a mind to avoid a punitive costs order and contempt
finding, we urge you to confirm by noon tomorrow, 5 August
105, that
– pending the outcome of our client’s aforesaid
application – you will henceforth abide by the Case
Manager’s
rulings by taking J….. to the S……. G……
on every single week day between now
and the end of the year when he
is in your care, and to M…. M….. W……
School next year in the event
he is offered a place there, and that
you will forthwith pay half the fees and deposit for S…..
G……., and
will pay half the deposit and fees for M…….
M…….. when called upon to do so.
”
[16]
On receipt of this letter the respondent replied on the 5
th
August as follows to the applicant’s attorneys:
“
Dear
Mrs. Clark,
I acknowledge
receipt of your below email, and attached letter, which refer, as
does my email to you of Sunday, 2 August, and my
SMS to you today at
10h49 (unanswered as at this sending).
I decline to
litigate by correspondence, and I reserve my rights to respond at the
appropriate time and in the appropriate forum.
I note that
your letter did not address my urgent requests (oft-repeated) for
discussions with your client regarding J…..’s
schooling
which requests are now all-the-more important as I have recently
attended an ‘Introductory Talk’ at M…..
M…..
W……. School, and have thereby acquired new information
about the school and its approach, etc. Your client
is not privy to
these views, and is legally obliged to consider them, as you know. I
still await to hear from you in this regard.
I further note
that my urgent application about J……’s schooling
was struck from the roll at your client’s
insistence. Should
she now seek to re-enroll the same matter, I will request a contempt
of court finding against her, a punitive
damages order, and that the
costs order against me be set aside.
However, if
your client still insists on litigating the matter in urgent court,
and if the court so indulges her, I would be delighted
to argue the
merits, which is what I sought in the first place.
At this stage,
given your client’s persistent intransigence regarding
discussions, mediation, etc. I foresee that we will
simply move
forward with my Part B, which I am busy with. All issues will
be dealt with therein.
Lastly, I find
your letter to be aggressive, threatening, and intimidating, and
request, again, that you cease such tactics, which
are contrary to
the Children’s Act, Brownlee, and the Constitution, inter alia,
I further note various specific threats to
violate or infringe my
basic human rights, as per the Bill of Rights in our Constitution,
and my parental rights in respect of
J….., and I request that
you cease and desist in so doing as well. Thank you.
I remain open
to proposals to resolve these disputes without litigation, and
encourage such from you and your client.
All
my rights remain strict reserved at all times.
”
[17]
After having received this letter the applicant’s attorneys
followed up with another letter to the respondent Mr Opland
and posed
certain questions:
“
Dear
Mr Opland
1
Will
you take J…… to S….. G…… every
weekday while he is in your care?
2
Will
you pay for half of J……’s education costs?
”
In
response to the above questions the respondent emailed the following
response to the applicant’s attorneys and said the
following:
“
I do
not believe I am obliged to answer your questions, and I decline to
litigate by correspondence.
I
reserve my right to change my mind, along with all my other rights.
”
[18]
These e-mails prompted the applicant to launch this application on
the 7
th
August 2015 and set it down for the 18
th
August 2015.
[19]
On the 18
th
August 2015 the respondent appeared in court unrepresented and asked
that an attempt be made at mediation. As a result the application
was
removed from the roll by agreement and the parties attended mediation
at the offices of Attorneys Bowman Gilfillan on the same
day the 18
th
August from 09h00 in the morning until 13h00.
[20]
I am informed in the supplementary affidavit deposed to by the
applicant that the mediation was unsuccessful and that Messrs
Bowman
Gilfillan declined to be involved any further in the matter.
The applicant further informed this Court that the respondent
still
continues and refuses to comply with the Case Manager’s rulings
with regard to J…….’s school.
As a result a
letter was addressed to the respondent on the 19
th
August 2015 which reads as follows:
“
Dear Mr Opland
1
Our client’s
Notice of Motion and founding affidavit were served only on
6 August
2015.
2
The Notice of Motion required that you serve your answering
affidavit, if
any, by 16h00 on Tuesday 11 August 2015.
3
The
matter was placed on the roll for hearing on Tuesday 18 August 2015.
4
You
served your Notice of Intention to Oppose on 11 August 2015.
5
On
12 August 2015, you said per e-mail that you were waiting for
contributions from a third party, essential to your representations,
that would only be delivered to you by 17h00 that day, and that you
would therefore endeavour to deliver your affidavit that evening.
6
Later
that day, we once again placed on record our client’s strenuous
objection to your refusal to adhere to the binding rulings
of the
case manager, when the very purpose of case management is to ensure
that parties have a ‘holding position’ pending
the
outcome of court proceedings to overturn the rulings.
7
You
asked again that the parties attend mediation with Natasha Rech at
Bowman Gilfillan, which had been offered on a pro bono basis.
8
Our
client agreed to attend mediation, and we arranged for it to take
place urgently on Tuesday 18 August 2015.
9
We
accordingly removed the matter from the roll of 18 August 2015, by
agreement with you.
10
On
Thursday 13 August 2015, you said that you had been advised that your
third party’s contributions would be ready by 15h00
that day.
11
On
Sunday 16 August 2015, we wrote to you to say we had noticed that
your answering affidavit had still not been served, and said:
‘
Please
remember that, if mediation is not successful, the matter WILL be
heard on Tuesday 25 August 2015. As you have had
more than
enough time within which to prepare your answering affidavit, I would
ask that you kindly ensure that it is served on
us by no later than
NOON tomorrow, 17 August 2015. I am unable to grant you any
further indulgence, I’m afraid.’
”
[21]
Despite the correspondence exchanged the respondent still maintained
his stance and did not take the child to school.
Instead he
started to threaten S…… G……. Playschool
suggesting that the school is operating illegally.
[22]
The respondent who appeared in person in court filed a voluminous
answering affidavit which spans some 40 pages which affidavit
he
settled himself. Both in his address to court as well as in his
affidavit he states that he is a layperson and appears
in person as
he cannot afford legal counsel like the applicant.
[23]
It is interesting to note that despite the respondent’s
assertion of being a layperson he has sufficiently set out his
replies in the answering affidavit and even quoted case law dealing
with the best interest of children. He freely refers
to the
Constitution like a seasoned trial lawyer. It is evident that
the respondent has a fair knowledge of legal issues
or is being
assisted by someone with such knowledge. He should therefore know
that once a court order has been granted it remains
valid until set
aside.
[24]
In his affidavit the respondent does not spell out in clear terms
why J….. should not attend S….. G…….
School except what he says at paragraph 30 of his affidavit where he
alleges that S…. G…… is in fact not a
school it
is a crèche and yet at paragraph 32 he contradicts this
assertion by saying that J….. will only be turning
7 in
January 2017 and does not need to attend school.
[25]
In my view the respondent is being disingenuous. He would rather
keep Josh at home than take him to the playschool. I do not
think
that he is acting in the best interest of the minor child a policy
which he so boldly espouses but seems to be only paying
lip service
to. He even went ahead to investigate if S…….
G…….. is registered when he telephoned
the Gauteng
Department of Education. He says that he was told by one Malebo
that S…. G…… is not registered.
It is
interesting that this information is not confirmed in any affidavit
and why raise it only now some two years after Dr Roux
had made the
recommendation.
[26]
In conclusion the respondent argues that the application is not
urgent and falls to be struck off the roll and refers the
court to
the decision of
Luna Meubel
Vervaardigers (Edms) Bpk v Makin and Another
1977 (4) SA 135
(W). I remain unpersuaded by this argument and
find that the applicant has satisfied the requirements for urgency in
that
the continued keeping away of the child J….. from
attending playschool as recommended by Dr Roux is continuous and is a
violation of the minor child’s constitutional right to
education I accordingly rule that the matter is urgent.
In his counterclaim the respondent seeks to resuscitate his
application which was struck off the roll by Collis AJ on the 23
rd
July 2007. His argument is that that application is still
alive. In the counter-application which has got no notice
of
motion he says that when his application was struck off the roll the
honourable court overlooked his extensive good faith efforts
to
resolve the dispute without litigation. In this regard it must
be remembered that when this matter was set down for hearing
on the
18
th
August he requested a postponement to enable him to undergo mediation
together with the applicant. Those mediation efforts
were
unsuccessful. It is not clear who caused the breakdown of
negotiations or deadlock in that matter. However, it can safely
be accepted that no headway could be made out of the discussions that
ensued. Neither did the respondent indicate that he
was willing
to take the minor child to the school as recommended by Dr Roux.
This is evidenced by the fact that he still
insists that the minor
child should not attend those schools. In paragraph 47.1 of
what he calls his counter-application
the respondent has now decided
to come up with some startling information which was never disclosed
before. He now says that
J…… has subsequently
developed significant psychological distress as evidenced by the fact
that he has begun
soiling himself when he is with the
applicant and which thing he has recently started doing. He
further says that J……
has also exhibited other signs of
psychological distress which started in late July. The
respondent has not furnished any
medical or reliable evidence to back
this version. It is clear that the respondent has set himself on a
path of disregarding recommendations
of the Case Manager which
recommendations were made an order of court and in my view this is a
flagrant disregard and contemptuous
behaviour on the part of the
respondent and this should not be allowed.
[27]
The reality of the issue is that Dr Roux had informed both the
applicant and the respondent that it was her intention as the
Case
Manager that J…… should change schools and this would
happen at the beginning of 2015 academic year and because
of this the
respondent notified the Cottage M……. School that J……..
would be leaving at the end of the
first term in 2015. It is
now surprising that he now seems to be changing his mind without any
reasonable cause.
[28]
In my view it is clear that the report of Dr Roux which was made an
order of court should be complied with until such time
that it shall
be set aside by the High Court. This has not happened the respondent
is engaged in an effort to defy this court order.
[29]
The fact that the respondent has said that Dr Roux has not given any
reason to justify a change of school for J……..
in mid
2015 is without any substance in the light of his own actions.
His description of Dr Roux’s reasons as being
irrational is
equally without any substance.
[30]
In my view the application by the applicant Anspach Heidi should
succeed and the counter-application by the respondent is
hereby
dismissed with costs.
[31
I accordingly make the following order:
(i) The
respondent is ordered to henceforth ensure that the minor child J…….
B…… O………
attends the S…..
G……. Playschool situate at 54 on every week day on
which J…… is in Respondents
care between now and the
end of the school year (unless J…… is certified by a
medical doctor to be ill) and to this
end that the respondent
timeously transports Josh to the aforesaid playground school when
J……. is in his care.
(ii) As from
January 2016 and provided Josh is offered a place at M….. M……
W…… School situate
at 2……. B……
D…… the respondent shall ensure that J…….
attends that school
on every weekday on which J…… is in
his care (unless J…… is certified by a medical doctor
to be ill).
He shall further ensure that J……. is
timeously transported to the said school when in his care.
(iii) The
respondent shall further not in any manner jeopardise J……’s
chance of being offered a place at M…….
M…..
W….. School by way of written or oral communication to the
school which directly or indirectly negatively affects
J…..’s
chances of being offered a place at that school.
(iv) The
respondent shall contribute 50% of all costs associated with J……..’s
education including but not limited
to deposits, levies, tuition
fees, books, stationary, uniforms, extra mural activities tours and
outings.
(v) The
respondent is ordered to pay the applicant’s cost of this
application on an attorney and client scale
DATED
at JOHANNESBURG this 8
th
day of SEPTEMBER 2015.
M
A MAKUME
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
DATE
OF HEARING 25 AUGUST 2015
DATE
OF JUDGMENT 8 SEPTEMBER 2015
APPLICANT’S
COUNSEL ADV ANTHONY BISHOP
INSTRUCTED
BYCLARKS ATTORNEYS
Block
A2
Impala
Road
Chislehurston
Johannesburg
Tel:
011 783 1066
Ref:
Mrs B Clark
RESPONDENT’S
COUNSEL IN PERSON