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
>>
2018
>>
[2018] ZAGPJHC 9
|
|
M v M (15986/2016) [2018] ZAGPJHC 9 (29 January 2018)
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
DIVISION, JOHANNESBURG
CASE
NO.: 15986/2016
In
the matter between:
M:
K
PLAINTIFF
and
M:
C
DEFENDANT
Heard: 25 January 2018
Delivered: 29 January 2018
JUDGMENT
Coram:
VAN DER SCHYFF AJ
Introduction
[1]
This is an application for leave to appeal. Although it is stated in
the plaintiff’s notice of application for leave to
appeal
(hereafter ‘the notice’) that the plaintiff applies for
leave to appeal against the whole of the order granted
on 22 January
2018, plaintiff’s counsel argued from the bar that the
application only relates to the portions of the order
pertaining to
the finding on relocation, maintenance and costs.
[2]
Plaintiff’s counsel’s oral argument was structured in
accordance with the heads of argument handed up by her. She
also
handed up a bundle of authorities. The heads of argument are helpful
in that it delineates the issues clearly. For this, I
am indebted to
counsel.
[3]
I have before me in this leave to appeal,
inter
alia
, submissions and arguments of what
I should have considered critically and where I erred in not
considering factors, in not taking
certain factors into account, in
attributing undue weight to certain factors while attributing
insufficient weight to other, in
making incorrect factual findings,
in making incorrect findings pertaining to the expert and other
witnesses and in applying the
incorrect legal principles adjudicating
the dispute regarding the children’s proposed relocation, and
that I evinced a bias
in favour of the defendant, erred in
terminating the children sleeping over with the plaintiff, in not
putting in place a exit
strategy that addresses the best interest of
the minor children, and in not correctly applying the provisions of s
7 of the Children’s
Act.
[4]
Section 17(1)
of the
Superior
Courts Act, No. 10 of 2013
, stipulates that:
‘
Leave to appeal may only be
given where the judge or judges concerned are of the opinion that—
(a) (i) the appeal would have a
reasonable prospect of success; or
(ii) there is some other compelling
reason why the appeal should be heard, including conflicting
judgments on the matter under consideration;
(b) the decision sought on appeal
does not fall within the ambit of
section 16
(2) (a);
and
(c) where the decision sought to be
appealed does not dispose of all the issues in the case, the appeal
would lead to a just and
prompt resolution of the real issues between
the parties.’
[5]
In view of the peremptory provision that leave to appeal ‘
may
only’
be given if the court is of
the opinion that the appeal would have a reasonable prospect of
success or if there is some other compelling
reason why the appeal
should be heard, it is evident that the test captured in
s 17(1)(a)
is two-fold.
[6]
In her argument pertaining to
s 17(1)(a)(i)
plaintiff’s counsel
referred me to
Normkow Administrators
(Pty) Ltd v Fedsure Health Medical Scheme
2005 (1) SA 80
(W) and argued that it is noteworthy that Goldstein J
placed strong emphasis on prospects of success no matter how remote
they
appear to be.
[7] However, Hughes J explained in
Nannen and Others v Momentum and Others
(6796/05, 2275/05)
[2017] ZAGPPHC 433 (14 June 2017);
Honda Giken Kogyo Kabushiki
Kaisha t/a Honda Motor Co Ltd v Big Boy Scooters
(24784/2016)
[2017] ZAGPPHC 752 (15 November 2017
); BWM Financial Services (SA)
(Pty) Ltd v Finlay and Others
(55858/10, 55860/10, 56219/10)
[2017] ZAGPPHC 383 (31 March 2017) that the test that applied
previously in applications of this
nature, was whether there were
reasonable prospect that another court
may
come to a
different conclusion. She continued:
‘
What
emerges from
section 17
(1) is that the threshold to grant a party
leave to appeal has been raised. It is now only granted in the
circumstances set out
and is deduced from the words 'only' used in
the said section. See The Mont Chevaux Trust v Tina Goosen & 18
Others 2014 JDR
2325 (LCC) at para [6], Bertelsmann J held as
follows:
"
It
is clear that the threshold for granting leave to appeal against a
judgment of a High Court has been raised in the new Act.
The former test whether leave to appeal should be granted was a
reasonable prospect that another court might come to a different
conclusion, see Van Heerden v Cronwright & Others
1985 (2) SA 342
(T) at 343H.
The use of the word
"would" in the new statute indicates a measure of certainty
that another court will differ from the
court whose judgment is
sought to be appealed against
."
[My emphasis].
(
Nannen,
supra
par [5]).
[8]
This view can further be substantiated if it is considered that Selke
J’ said in
Starr v Ramnath and
Others
[1954] 2 All SA 106
[N] 113 that
‘
[i]n the idiom of English, the
words ‘will’ and ‘would’ are possessed of
many variations of meanings and
shades of meaning.
In
s 17(1)
the word ‘would’ replaced the word ‘may’
as was previously the case. Linguistically considered the word
‘would’, is the past tense of the subjective mood of the
word ‘will’ -
Amalgamated
Retail Ltd v Spark and Another
[1991] 3
All SA 545
(SE). The only sensible way to interpret the word in this
context is to give it the meaning of its source, namely ‘will’.
[9]
As stated in
MEC Health, Eastern Cape v
Mkhitha
(1221/15)
[2016] ZASCA 176
(25
November 2016) paragraph [17] – ‘
An
applicant for leave to appeal must convince the court on proper
grounds that there is a reasonable prospect or realistic chance
of
success on appeal. A mere possibility of success, an arguable case or
one that is not hopeless, is not enough. There must be
a sound,
rational basis to conclude that there is a reasonable prospect of
success on appeal.’
[10]
In view of the above, the general submission in paragraph 4.2 of
plaintiff’s counsel’s heads of argument that ‘
another
court could come to a different decision of opting for the less
traumatic option of preserving the status quo’
is untenable. This contention is also untenable in light of the fact
that this court has stated in
Baloyi v
Baloyi
(6208/2014) [2015] ZAGPPHC 728
(16 October 2015) paragraph [37] that the question of what a child’s
best interests are must
be determined according to the facts and
particular circumstances of each case and not on reasonable
generalisations such as the
principle of “preserving the status
quo”.
[11]
It is trite that
s 17
empowers the trial judge to give leave to
appeal, and that that power must be exercised judicially. In view of
the particular manner
in which
s 17(1)(a)(i)
is phrased the court can
rely on the decision of the Appellate Division , as the Supreme Court
of Appeal then was, in
Rex v Baloi
1949 (1) SA 523
(A), for guidance as how to approach an application
for leave to appeal in a context where it is prescribed that leave to
appeal
should not be granted unless the applicant will have (would)
have a reasonable prospect of success on appeal. Centlivres JA stated
at 524-525: ‘
For the trial judge
must, in the nature of things, find it somewhat difficult to look at
the matter from a purely objective standpoint;
he has a natural
reluctance to say that his own judgment is so indubitably correct
that the Judges of appeal will concur therein.
But the test laid down
… is the only test that can be applied’.
[12] In
R v Kuzwayo
1949 (3) SA
761
(A) 765, a criminal case, the court explained:
‘
That test
must, to the best of the ability of the trial judge, be applied
objectively. By that is meant that he must disabuse his
mind of the
fact that he himself has no reasonable doubt as to the guilt of the
accused: he must ask himself whether there is a
reasonable prospect
that the judges of appeal will take a different view. This applies to
questions both of fact and of law: there
is, in this respect, no
distinction between a question of fact and a question of law’.
[13]
In matters where the best interests of children are at stake this
would mean that a trial court should carefully and objectively
re-consider the judgment in view of the facts of the case and the
grounds of appeal advanced by the applicant for it would not
be in
the best interests of the children to (a) grant leave to appeal just
as a matter of caution, this will come down to a court
‘passing
the buck’, although this might seem to be an attractive option
or easy way out, this is not the statutorily
prescribed approach and
such an approach may further unduly delay the finalisation of the
matter and as such be contrary to the
statutory prescripts of
s
6(4)(a)
of the Children’s Act, No 38 of 2005 or (b) dismiss an
application for leave to appeal because the trial judge stubbornly
persists in his or her views without taking a step back to
objectively determine the possibility of another court coming to a
different decision on either the facts or the law. Neither (a) or (b)
meets the required standard set by
s 17(1)(a)(i).
[14]
It is, in addition, trite that an applicant seeking leave to appeal
must set out its grounds of appeal succinctly and in unambiguous
terms in order to enable the court and the respondent to understand
the case the applicant seeks to make out and which the respondent
has
to meet in opposing the application for leave to appeal -
Songono
v. Minister of Law and Order
1996(4) S.A. 384 (E) 395J-386A;
Philip v Estate Agency Affairs Board
(39922/12) [2013] ZAGPPHC
276 (2 October 2013) para [31];
Fuku v Mpoka
(A137/2013)
[2013] ZAFSHC 152
(19 September 2013) para [5];
Lewis NO and
Others v Cooper NO and Another, Lewis v Soundprops 236 (Pty) Ltd and
Others
(11292/08, 14889/08)
[2009] ZAWCHC 51
(27 February 2009)
para [2];
Xayimpthe court and Others v Chairman
Judge White Commission (formerly known as Browde Commission) and
Others
[2006] JOL 16596
(E).
Considering
the grounds of appeal -
Would the appeal
have a reasonable prospect of success?
[15]
I cannot deal with each individual submission contained in the
plaintiff’s notice in the written judgment, although each
has
been considered. In particular, where I am of the view that there is
no reasonable prospect that another court will have a
different view
on either fact or law pertaining to aspects that were argued during
closing argument that are addressed in the judgment,
these will not
again be traversed. It will serve no purpose to re-write the
judgment.
[16]
The grounds of appeal relating to relocation, maintenance and costs
will first be assessed by determining whether they substantiate
a
finding that the appeal would have a reasonable prospect of success.
In the event that it is found that no reasonable prospect
of success
exists, the focus will fall on determining whether compelling
circumstances exist necessitating that an appeal should
be heard.
[17]
At the onset of the analysis it is important to note that my finding
that the defendant’s motive to relocate is
bona fide
and
reasonable, as dealt with in paragraph [46] of the judgment is not
disputed in the notice or listed as a ground of appeal either
as a
finding of fact or issue of law on which it is alleged that I erred.
The plaintiff’s issue on appeal is that it is surmised
that the
court ‘
incorrectly reasoned that once it is found that the
children should reside primarily with the defendant and her decision
to relocate
to Germany is reasonable, then, as an automatic
consequence thereof, the children should relocate to Germany. This
reasoning prioritises
the rights of the defendant to return to her
country of origin over the interests of the children’.
[18]
It is also relevant that the correctness of the factual matrix set
out in paragraphs [13] – [23] of the judgment is not
disputed,
save for the fact that it is stated in the notice that there is no
evidence supporting the finding I made that the defendant
is still
breastfeeding and was argued that the claim in the summons that the
defendant failed to wean Keano reflected the situation,
as it was at
the time when summons was issued, and did not absolve the defendant
of the onus to lead evidence that she is still
currently
breastfeeding. The aspect is dealt with further below.
Aspects
contained in the notice of application for leave to appeal
Relocation
Unenforceability
of the order in Germany
[19] Counsel for the plaintiff argued
that the court erred in failing to consider, or have any regard to
the unenforceability of
the order, in Germany.
[19.1] It is stated
as a fact in paragraph 4.3 of the notice that the order is not
enforceable in Germany.
[19.2] Counsel
could not refer me to any case law or authority in the heads of
argument or during oral argument. This contention
is based on a
submission made by defendant’s counsel in closing argument,
which has no basis.
[19.3] Counsel
could not address me on the implication of s 108 and 110 of the
German statute the ‘Act on Proceedings in Family
Matters and
Matters of Non-Contentious Jurisdiction’ of 17 December 2008
(
Gesetz ȕber das Verfahren in
Familiensachen und in Angelegenheiten der freiwilligen
Gerichtsbarkheit)
- FamFG. Section 108
of this statute deals with the recognition of foreign judgments and s
110 deals with the enforceability of
foreign judgments
(https://www.gesetze-im-internet.de/englisch_famfg/englisch_famfg.html).
[19.4] I was not
referred to or addressed on the impact of the Reciprocal Enforcement
of Maintenance Orders Act, No. 80 of 1963,
or the Reciprocal
Enforcement Maintenance Agreement between South-Africa and Germany
(www.justice.gov.za/ilr/intmnt.html), and
more importantly the effect
that this reciprocity has on the enforcement of the order in Germany.
[19.5] I am not
convinced that the blanket statement made on behalf of plaintiff that
the order is unenforceable in Germany constitutes
a proper ground of
appeal, and I am of the opinion that I can take judicial recognition
of the FamFG, the Reciprocal Enforcement
of Maintenance Orders Act,
No. 80 of 1963 and the Reciprocal Enforcement Maintenance Agreement
between South-Africa and Germany.
[20] Plaintiff’s counsel
expressed concern regarding the fact that paragraph [113] of the
judgment ‘
does not form part of the Order, save by reference
and in addition to stating when the plaintiff is to have contact, it
contains
the Court’s reasoning, findings and conclusions’.
Since I did read paragraph [113] into the record after I read the
Order as contained in the printed judgment, this does not pose
a
problem and the Order must be retyped to reflect the correct
position. This will be done.
Applying the incorrect legal
principles in adjudicating the dispute regarding the children’s
proposed relocation
[21]
Based on the submissions made on behalf of the plaintiff in the
notice, the heads of argument and during oral argument, it
is evident
that plaintiff’s counsel submitted that because I did not
address each relevant factor set out in s 7 of the Children’s
Act I did not consider it, and paid mere lip-service to the principle
‘best interests of the child’.
[22]
It is stated clearly in paragraph 44 of the judgment that ‘
the
fact that a specific factor listed in section 7 is not specifically
addressed below, does not mean that it has not been considered’
.
The judgment is evident of the fact that the children’s best
interest were considered within the broad context of the facts
of the
case, the applicable constitutional matrix and the guidance provided
by case law, despite the fact that no comparison or
analyses was made
in tabular form. I am of the opinion that there is no reasonable
prospect that a court of appeal would find that,
in the circumstances
of this case, taking into consideration the facts of the matter and
the constitutional and legal matrix within
which the court’s
discretion must be exercised, it is not in the best interests of the
children to relocate with the defendant
to Germany.
[23]
In addition, the approach to adjudicating disputes of this nature has
been explained by Murphy J in
Cunningham
v Pretorius
(31187/08) [2008] ZAGPGC
258 (21 August 2008) para [9], in that the court must acquire an
overall impression. The investigation
required a holistic, case
specific analyses.
[24]
Although reference is made in paragraphs [47], [51] – [54],
[101], [121] and [113.2.5] of the judgment to Buchbach without
incorporating reference to Lain am Zee, this is not ‘
misleading,
unhelpful or incorrect’
as
unfortunately submitted in plaintiff’s heads of argument. The
defendant’s evidence was that Lain am Zee is a family
village/holiday resort 3km from the town Buchbach. The evidence led
by the defendant and Dr. Kruger clearly referred to both and
the
omission to refer specifically to Lain am Zee in correlation with
Buchbach is negligible and not a ground for appeal.
[25]
It is argued in paragraph 5.3.1.4 of the heads of argument that there
is no evidence to support the finding that the defendant
is ‘still
breastfeeding’. In addition to the relevant paragraph in the
summons referred to in paragraph [67] of the
judgment, defendant’s
counsel during argument drew attention to,
inter
alia
, paragraph 39.1 of the plaintiff’s
plea to defendant’s counterclaim where it is admitted that ‘
The
plaintiff admits that the defendant … continues to breastfeed
Keano.’
It is in addition stated
in paragraph 6.3 of a letter, dated 18 October 2017, written by the
plaintiff’s attorney of record
for the attention of the Deputy
Chief Judge President, which I take cognisance of because it is was
provided by the plaintiff although
not referred to during the trial,
that ‘
The plaintiff’s
contention in this regard is that the defendant persists in
breastfeeding Keano to create an interdependence
with Keano so as to
positively influence her case for an order that Keano resides
primarily with him’
. The issue of
continued breastfeeding was never disputed until in closing argument.
[26] It is contended in paragraph 3.2
that I erred in not finding that the defendant did not want to
frustrate the plaintiff’s
contact with the minor children, with
reference to paragraph [113.1.1] of the judgment. It is imperative to
take note of the fact
that the specific sentence reads – ‘
I
am not persuaded that the defendant wanted to frustrate contact
between the plaintiff and the children ‘at all costs’
.
This finding must be read in context of the judgment as a whole and
specifically paragraph [71.3.] thereof.
Incorrect factual finding
[27] The only claim under the heading
‘
The Court erred in making incorrect factual findings’
that is contained in in paragraph 10 of the notice, is that the court
made an incorrect factual finding by finding in paragraph
[70] of the
judgment that the defendant’s endeavours to frustrate the
children’s contact with the plaintiff, was in
respect of the so
called ‘third phase’. In this regard it is sufficient to
state that I did consider the evidence that
was before me. The mere
mentioning of two contempt of court charges is not evidence that the
defendant frustrated contact, specifically
if read in the context of
plaintiff’s evidence as to why he laid the charges‘…
it
was always her trying to [indistinct] and tell “nee” what
the order should say and it was enough and it was wrong
and it is
wrong on many occasions and that is why I at the time did lay the
charge. Because if most things [indistinct] when it
came, because
acted Katherine arrogantly in the last 3 and a half 2 years, it was
very arrogantly and it was all about her and
that was the
main reason for that’
.
I also considered the
nature of the incident referred to in paragraph [80] in the judgment.
Incorrect findings pertaining to
the expert and other witnesses
[28] Save for stating that the aspects
referred to in paragraph 11 of the notice forms part of the context
within which the post-divorce
contact and care regime was considered,
as set out in paragraph [23] of the judgment, the remainder of the
submissions contained
in this paragraph are argumentative and were
dealt with in the judgment.
Bias in favour of the defendant
[29]
Save for stating that the reason why the court dealt with the
defendant as a witness is contained in paragraph [28] of the
judgment, I am of the view that none of the aspects listed are
indicative of a biased attitude. There are no merits in these
averments.
The judgment as a whole evince a balanced approach aimed
at determining the appropriate post-divorce care and contact regime
that
would be in the best interests of the children having regard to
the factual matrix of this case and amidst their parent’s
acrimony and strife.
[30]
It is nowhere in the judgment stated that I accepted evidence of Dr.
Kruger ‘
that the family in Germany
will welcome the plaintiff with open arms’
-
the correct finding is contained in paragraph [53] of the judgment.
[31]
The reason for accepting Dr. Zaobi’s report is set out in
paragraph [51] of the judgment. Prior to accepting this report
the
defendant’s counsel argued that the report should be admitted
in terms of s 34 of the Civil Proceedings Evidence Act,
No 25 of
1965, since Mr Zaobi was outside the Republic and it was not
reasonably practical to secure his attendance at the trial.
Although
his report was admitted, the evidentiary value attributed thereto is
explained in paragraph [51] of the judgment. The
findings made
pertaining the living conditions in Germany were based on Dr.
Kruger’s evidence. Dr Robyn Fasser’s report
was not
accepted into evidence. No justifiable reason exists to admit a
report if an expert witness who is available in South-Africa
does not
testify at the trial, particularly in circumstances where other
expert witnesses, who assessed the same parties, gave
their evidence
and was subjected to thorough cross-examination.
[32] In paragraph 12.9 of the heads of
argument it is stated that the court incorrectly found that the
plaintiff insisted on the
children’s passports being held by a
third party and that therefore it was the plaintiff that prevented
any contact between
the children and the extended family. Evidence
was led by the plaintiff, when he was cross-examined in this regard.
This evidence
is unfortunately not captured in the typed record on
page 232 of the record where it is supposed to be and the record
needs to
be supplemented in this regard. I have recorded the
plaintiff’s response to a statement that the defendant has not
been in
Germany during the last two years because she cannot afford
it and the plaintiff did not agree thereto. – Plaintiff
testified
(I paraphrase as my notes do not represent a verbatim
account)
that the passports were held by a third party attorney
–
how could they go this year… ‘of course they’
haven’t gone- I do not trust her not to go away
. The
defendant’s evidence was that she was
forced
to agree to
the passports being held by an independent attorney.
Error in terminating the interim
sleepover regime
[33] It is argued in the heads of
argument that there was no rationale or justification for reducing
the sleep-over contact that
the plaintiff has with the children
during the week. Neither of the parties addressed the court in
closing on an appropriate sleep-over
regime for the interim in the
event that it was found that the defendant and the children could
relocate. Since the court is the
upper-guardian for the minor
children the court incorporated a contact regime that was deemed
appropriate in the circumstances.
In light of the fact that the
defendant’s visa lapses on 3 February 2018 and the finding that
she may relocate with the children,
this was an interim arrangement.
Exit strategy
[34]
Neither of the parties proposed an appropriate exit strategy in the
event that I found that the children may relocate with
the defendant.
Taking into account the children’s best interests, the court
deemed it necessary to provide an opportunity
to the children to
greet the plaintiff and the extended family. Nothing is to be gained
by prolonging or delaying the parting.
In light of the fact that the
defendant’s visa lapses on 3 February 2018, the exit regime is
appropriate, and I am of the
opinion that the appeal of this aspect
would not have a reasonable prospect of success.
[35]
The plaintiff complained that the exit strategy did not allow for a
sufficient period for him to bid the children farewell
in
circumstances where he ‘
may
potentially not have physical contact with the children at the very
least for the next month’
. It can
thus be deduced that he intends to maintain contact with the children
and that is ultimately in the children’s best
interests.
[36] After juxtaposing the judgement
and order , and the application for leave to appeal as structured in
the notice and supported
by the argument contained in the heads of
argument and the oral argument presented from the bar, I am of the
view that an appeal
pertaining to the finding on relocation would not
have a reasonable prospect of success.
Spousal maintenance
[37]
It was argued that the court erred in finding that the defendant is
entitled to four years rehabilitative maintenance in the
amount of
E1000 per month, in light of the fact that no evidence was lead
pertaining to the quantification of the maintenance or
the specific
period for which the maintenance is needed. The aspects that were
considered are stated in paragraphs [120] –
[125] of the
judgment.
[38]
Van Dijkhorst J explained in
Porthino v
Porthino
[1981] 2 All SA 33
(T) the
test that needs to be applied is ‘
whether
on the probabilities maintenance is or will be needed.’
[39]
On the probabilities the defendant needs to be maintained for a
period and I am not of the opinion that an appeal pertaining
to the
defendant’s need to receive rehabilitative spousal maintenance
has a reasonable prospect of success.
[40] If
section 7(2)
of the
Divorce
Act 70 of 1979
is considered, the only factor mentioned in the
section whereon no evidence was led is the ‘financial needs and
obligations’
of the parties. The fact that the defendant was
unable to earn any income for the past years, necessitates a
maintenance order.
The only contentious aspect is the amount and
period thereof. In determining the four year period the court took
into account that
logic dictates the defendant will have to assist
the children to adapt to their new environment in the first year
after relocation.
It is only thereafter that she will be able to use
the time to better her qualifications or enhance her skills and
experience.
The period of four years was thus determined taking the
best interests of the minor children in consideration. The amount of
E1000
was determined taking into consideration the defendant’s
current interim maintenance of R 10 000,00 per month, the amount
tendered for rent payment – R12 000,00 per month, and the
medical aid contributions that will now fall away. However,
it is
possible that there is a reasonable prospect that another court would
consider different criteria and come to a different
decision
pertaining to the amount and period of rehabilitative maintenance.
This ground for appeal is thus upheld and the plaintiff
is granted
leave to appeal the duration and amount of the maintenance order.
Child maintenance
[41]
In light of the circumstances of the case, the basis used for the
calculation of the children’s maintenance, the fact
that the
amount is less than what the plaintiff is currently paying, and the
provisions of
section 6(3)
of the
Divorce Act, I
am of the view that
an appeal pertaining to child maintenance does not have a reasonable
prospect of success.
[42]
Plaintiff’s counsel’s argument that plaintiff will be
inconvenienced by having to arrange to pay the maintenance
in euros,
is not a ground for appeal against a finding of the liability to pay.
[43] Counsel could not refer the court
specifically to a regulation pertaining to the submission that in
circumstances where the
payment of maintenance in euros is not
subject to the defendant being
de facto
in Germany the order
contravenes the South African Exchange Control Regulations. Since it
has not been argued that the defendant’s
nominated account is a
South-African account and if considered that her visa expires on 3
February 2018 I am of the view that this
is not a proper ground for
appeal.
Costs
[44]
The contention that the defendant should not be allowed costs because
her legal costs has to some extent been funded by an
NGO is
opportunistic in light of the fact that plaintiff, whose legal costs
were fully funded by his father, claimed to be awarded
costs in the
draft order submitted on his behalf during closing argument.
[45]
Evidence was led by the defendant that the contribution by the NGO
was not a gift and that she would want to pay it back when
she is in
a position to do so. Defendant’s counsel argued that the
contribution by the NGO is
res inter
alios acta.
[46] I am of the view that an appeal
pertaining to the costs order would not have a reasonable prospect of
success.
Is
there a compelling reason why the appeal should be heard?
[47] In light of the fact that I am of
the view that the appeal pertaining to relocation, the obligation to
pay spousal maintenance,
child maintenance and costs would have no
reasonable prospect of success, I must consider whether there is some
other compelling
reason why an appeal pertaining to these matters
should be allowed.
Compelling reasons raised by
plaintiff
[48] The following are listed in the
heads of argument as compelling reasons why an appeal should be
allowed:
[48.1] The
substantial importance of the case to the plaintiff or to both the
plaintiff and the defendant;
[48.2] The decision
sought to be appealed against involves an important question of law
(during oral argument reference was made
to the maternal preference
rule) – in paragraph 14 of the heads of argument another point
of law is identified, namely the
contention that the order is not
recognised and/or enforceable in Germany without the plaintiff
launching legal proceedings
de nova
in Germany;
[48.3]The best
interests of the minor children are to be determined;
[48.4] The matter
is of substantial importance to both parties, more so for the
plaintiff in that his constitutional rights in terms
of section 34
stands to be impeded by the order;
[48.5] The order
imposes considerable inconvenience and prejudice on the plaintiff and
the minor children, with the latter now at
the threshold of having
their right to parental care from the plaintiff severely curtailed;
[48.6] The judgment
has the effect of silently relinquishing jurisdiction into the
‘oblivion’ of “some”
German court as
‘
conceded in argument by counsel
for the Defendant’
.
[49] In light of
the fact that the most important of these reasons, namely the best
interests of the children, was considered during
the trial and, in
coming to a final judgment, and re-considered now, and that the issue
of the enforceability of the judgment in
Germany is dealt with above
although counsel could not refer to appropriate authority to
substantiate this contention, the court
is not convinced that any of
the reasons listed constitute a compelling reason for granting leave
to appeal. Inconvenience caused
by an order of court is not a
compelling reason that an appeal should be heard. The plaintiff’s
constitutional right as contained
in s 34 is not affected since he
will have access to the German courts – in this regard it is
important to note that LC Haupt
explained in her doctoral thesis
Die
reg van die kind op oorlewing, ontwikkeling en beskerming
(1998) 127, that s 6 of the German
Grundgesetz
acknowledges the
Kindswohl
(child’s best interests) as benchmark and constitutional norm
that serves as a legal criterion for the foundation and limitation
of
the interests and rights of children, parents and the state. In any
event, the plaintiff’s constitutional right as encapsulated
in
s 34 of the constitution must be balanced with the defendant’s
constitutional right set out in s 21 and the children’s
constitutional right contained in s 28(2) of the Constitution. The
fact that the court is relinquishing jurisdiction over the children
to German courts is a natural consequence of relocation and in light
of the similarities between the approaches of the two jurisdictions
to safeguarding the children’s best interests, this is not in
itself a compelling reason why the appeal should be heard.
[50] I accordingly find that there is
no compelling circumstances why the appeal should be heard.
ORDER:
IT IS THUS ORDERED THAT:
1.
Leave to appeal is granted to the plaintiff to
appeal the narrow issue pertaining to the amount and period of
spousal maintenance,
to the Full Court of the Gauteng Division
(Johannesburg).
2.
Leave to appeal the remainder of the judgment is
refused.
3.
Applicant is to pay the costs of the application,
which costs include the costs of two council.
______________________
E VAN DER SCHYFF
Acting Judge of the High Court
Plaintiff’s
Attorneys
Steve
Merchak Attorney
1
st
Floor, 3 Gwen Lane
SANDTON
Adv.
A de Wet (SC)
Defendant’s
Attorneys
Darryl
Furman & Associates
Illovo
Law Chambers
4
Fricker Road
ILLOVO
Adv.
J Peter (SC)