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[2016] ZAGPJHC 125
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J v S (2016/13621) [2016] ZAGPJHC 125 (24 May 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE
NO: 2016/13621
In the matter
between:
J
B APPLICANT
(ID No: [8……..])
And
S
S RESPONDENT
(ID No: [8………])
J U D G M E N T
TWALA AJ
[1] On the 21 April 2016, the
Applicant brought an
ex parte
application before Keightley J
on urgent basis and was granted an order in the following terms:
1.
The
minor children:-
1.1
A
R, a boy born on […] May 2008 and currently 7 years old
(hereinafter referred to as “A1”); and
1.2
A
R, a girl born on […] September 2009 and currently 6 years old
(hereinafter referred to as “A2”)
,
(hereinafter
collectively referred to as “the minor children”)
Forthwith be
returned to the care of the Applicant and that the minor children’s
care and primary residency be restored with
the Applicant with
immediate effect.
2. In the event
of the Respondent refusing to hand the minor children over to the
Applicant, the Sheriff of the above Honourable
Court is hereby
ordered and directed to remove the minor children from the Respondent
or wherever they may be found and forthwith
place the minor children
in the Applicant’s care.
3. Pending the
final outcome of the Family Advocate’s investigation, an
independent forensic assessment by social worker E
L or such other
suitable registered healthcare professional as may be agreed upon
between the parties and the final determination
of Part B of this
application:-
3.1 The
full parental rights and responsibilities in respect of the minor
children is granted to the Applicant as contemplated
by section 18(2)
read with section 1, 18(3) and 20 of the Children’s Act, Act 38
of 2005 (hereinafter referred to as “the
Act”) which
rights shall inter alia entail that:-
3.1.1 The Applicant shall be the
minor children’s primary caregiver;
3.1.2 The minor children’s
primary place of residency shall be at the Applicant’s place of
residence;
3.1.3 The
Applicant shall be the minor children’s guardian.
3.2 The Respondent shall have the
following specific rights and responsibilities in respect of the
minor children:
3.2.1 The right to in terms of
Section 18(2) have contact to the minor children under the
supervision of the Applicant and/or the
Applicant’s mother at
the Applicant’s mother’s place of Residence at the plot
situated at […], Gauteng
at such time as may be mutually
agreed upon between the parties, unless otherwise recommended by E L
after the assessment;
3.2.2 The right
to in terms of Section 18(2) (c) in conjunction with the Applicant be
a co-holder of guardianship in relation to
the minor children.
4. The matter is
hereby referred to the Family Advocate and the Family Advocate is
hereby directed and requested to, as a matter
of urgency, investigate
what will be in the minor children’s best interests pertaining
inter alia to the parties’ parental
rights and responsibilities
and contact rights, if any, and make recommendations to this Court in
this respect.
5. Social worker
E L, alternatively a suitable independent healthcare professional as
may be agreed upon between the parties conduct
a forensic assessment
in relation to the minor child A2 regarding A2’s possible
oversexualised behaviour and report back
to this Court.
6. The costs of
Part A of this application are reserved pending the outcome of part B
of this application.
[2]. Before me, is an urgent
application brought by the respondent for an order in the following
terms:
a)
Dispensing
with the forms and services provided for in the Uniform Rules of
Court and allowing the matter to proceed as an urgent
application as
is provided for in Rule 6(12) of the Uniform Rules of Court.
b)
That
the Honourable Court reconsiders the order made in the
ex
parte
application on 21 April 2016 and set the order aside with the
restoration of the status quo ante as is set out in prayer 4 herein
below.
c)
Alternatively,
that the Honourable Court, allowing the expedition of the
hearing of Part B of the application, dismiss the
application for the
relief requested under Part “B” and instead order the
return of the position as it truly were (the
status quo ante) before
the granting of the order in terms of portion “A” of this
order namely:
d)
That
the minor children:
I.
A1,
born on […] May 2008, and
II.
A2,
born on […] September 2009
Be returned to the
respondent’s care with immediate effect and that the minor
children be primarily resident with respondent
pending finalisation
of the assessment of the minor children by the family advocate and
Mrs E L
III.
Both
parties are to remain co-holder of parental rights and
responsibilities including guardianship subject to the following:
(1)
The
minor children are to reside with the respondent pending finalisation
of the reports;
(2)
The
Applicant shall have reasonable rights to access the children under
the supervision of his mother, and
(3)
That
the matter of interim contact and care, after finalisation of the
reports proceed as part of the Rule 58 proceedings that is
pending in
Kagiso Regional Court.
IV.
Costs
of the application.
[3] Due to the
urgency of the matter, I granted orders B and D of the Respondent’s
notice of motion on the day of hearing
of the matter. My reasons for
such an order will appear hereunder.
[4] It is common cause that the
parties were married to each other out of community of property in
terms of a duly registered Antenuptial
Contract in Johannesburg on
the 2
nd
March 2013 and the marriage still subsists. There
are two minor children born of the marriage between the parties,
namely:-
I.
A1,
a boy, born on […] May 2008;
II.
A2,
a girl, born on […] September 2009.
[5] On the 17 March
2016 the respondent instituted divorce proceedings out of the
Regional Court for the Regional Division of Gauteng
held at Kagiso.
The applicant filed its notice of intention to defend the divorce
action. On the 24 March 2016 it was agreed between
the parties that a
roundtable meeting will be held on the 20 April 2016. It was further
agreed that the applicant will exercise
his rights of access and
contact with the children only under supervision by his mother and
the respondent will collect them after
each visit.
[6] Applicant
contends that the respondent has unlawfully removed the minor
children and kept them out of school on the 18 March
2016. On the 18
April 2016 he received an e-mail from the after school teacher
informing him that the minor children have not been
attending school
for the past five (5) days. He then approached his lawyers and
instructed them to bring an
ex parte
application.
[7] It is the
applicant’s contention that the respondent left the common home
in 2013 and left the minor children in his care.
Respondent is living
on a farm with a man known as Norman and they are using dependence
drugs. He admits that he was also using
drugs but has since stopped.
On the 16 April 2016 Norman refused him access and contact with the
minor children.
[8] The respondent
contends that she left the common home with the minor children only
in August 2015. She initially left the common
home with the children
in 2013 but returned because the applicant was unstable and
threatened to commit suicide. She did not stay
for long in August
2015 as the applicant continued using dependence drugs and was
abusive and assaulting her every time he was
under the influence of
the drugs. However, the applicant had easy and unsupervised contact
with the minor children. They sometimes
slept over at his place.
[9] It is contended
further that applicant’s girl-friend informed the respondent
that she suspects the applicant is abusing
the minor child A2 because
she has become overly sexualised. Respondent had also noticed the
changed behaviour of the minor child
and instructed her attorneys to
arrange that the applicant should have supervised contact with the
children. The children have
at all times been in the primary care of
the respondent. Although she lives forty (40) kilometres from the
children’s school,
she brings them to school in the morning and
collects them in the afternoon since she works only four (4)
kilometres from the school.
She admits having used dependence drugs
but has stopped using the drugs in January 2016.
[10] After
observing the changed behaviour of the minor girl child and having
made the arrangements for supervised contact, the
parties started
negotiating as to which healthcare professional should they engage to
assess the minor child. On the 20 April 2016
the respondent issued
and served on the applicant an application in terms of Rule 58 of the
Regional Court for the maintenance
of herself and minor children
pendent lite
.
This application was served on the attorneys of record for the
applicant on the 20 April 2016. She was surprised that the
applicant
would approach the Court
ex parte
the next day when they both have attorneys on record. Applicant did
not take the Court into his confidence and placed all the material
facts before it.
[11] Counsel for
the respondent contends that the applicant did not place all the
material facts of the matter before the Court
when he brought the
ex
parte
application. Applicant
deliberately misled the Court by alleging that he was the primary
care giver of the minor children and that
they were taken out of
school by the respondent. The children were only absent from school
for two (2) days because they had a
flu buck. Had the respondent been
aware of the
ex parte
application, she would have brought all these facts before the Court
including that the applicant is one of the suspects for abusing
the
minor child, A2 – hence the arrangement for supervised contact
with the children. The children have always been in the
care of the
respondent but would visit the applicant and sleep over at his house.
He was never a primary care giver of the children.
[13] It is apparent
from the papers that the marriage between the parties has been a
rocky one. Both parties have admitted to using
dependence drugs
although both claim to be clean of the drugs now. Drugs are
destroying our society. With married couples, drugs
are not only
destroying the marriage but have adverse effect on the minor
children. Drugs go to the core fabric of our society
and it is time
for the society to decisively deal with the situation.
[14] Rule 4(1)(aA) of the Uniform
Rules of Court provides as follows:
“
Where the
person to be served with any document initiating application
proceedings is already represented by an attorney of record,
such
document may be served upon such attorney by the party initiating
such proceedings.”
[15] I agree with
the Counsel for the respondent that the applicant failed to take the
Court in his confidence when he brought this
application on
ex
parte.
The attorneys for the respondent
served the attorneys for the applicant with an application for relief
pendente lite
on
the 20 April 2016. On the 21 April 2016 the applicant approaches the
Court on urgent basis per ex parte application without serving
the
application on the respondent’s attorneys of record. This, in
my view, was deliberate and intended to mislead the Court
without
giving the respondent an opportunity to answer to the case of the
applicant.
[16] It is absurd
for applicant’s Counsel to argue that the Court directed them
to serve and they served the
ex parte
application by e-mail on the respondent when in fact they e-mailed
the application to the respondent’s work e-mail address
after
16H00 when they knew she had already left work at 16H00. There is no
explanation why applicant did not serve or e-mail the
ex
parte
application to the attorney on
record for the respondent. Further, applicant did not attach the Rule
58 application to its papers
nor inform the Court about it whereas
the application was served on his attorneys the previous day.
Applicant was selective as
to what he presents to the Court so that
he could obtain the order. He deliberately withheld information from
the Court.
[17] Applicant does
not tell this Court why he did not take action to restore the
status
quo ante
when the respondent hijacked
the children on the 17 March 2016. Instead he instructs his attorneys
to conclude an agreement with
regard to his contact with his
children. On the 24 March 2016 he agrees to contact with his children
under the supervision of his
mother. That is after he has been served
with the divorce summons. The school reopened on the 5 April 2016 but
still he did not
fetch the children from the respondent as he alleges
that he was living with the children since the respondent left them
in 2013.
He made the Court to believe that he was galvanised into
action because of the e-mail he received from the after school care
teacher
on the 18 April 2016.
[18] I therefore
conclude that the applicant was galvanised into action when he
received the Rule 58 application on the 20 April
2016. He wittingly
failed to attach the rule 58 application to his
ex
parte
application – thus
withholding that vital information from the Court. I am of the view
that had the applicant placed all
the facts before the Court
including that he was exercising contact with the children under
supervision from his mother, the Court
would not have granted him the
order.
[19] In the circumstances, I confirm
the orders as I granted in paragraph 3 supra, as follows:
A.
That
the order granted
ex
parte
on the 21 April 2016 is hereby set aside and the status
quo
ante
restored;
B.
Applicant
to pay the costs of the application.
_________________________________________________
TWALA
ACTING JUDGE OF THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
Counsel for the Applicant:
Adv M
Van Nieuwenhuizen
Instructed by:
GREYLING ORCHARD
ATTORNEYS
TEL:
011 462 8398
Counsel for the Respondent:
Adv E
Liebenberg
Instructed by
BEUTE – KEEGAN
ATTORNEY
TEL:
011 475 0085
Date of Hearing:
29 APRIL 2016
Date
of Judgment:
24
MAY 2016