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[2018] ZAGPJHC 12
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L v Central Authority for the Republic South Africa and Another (24108/2016) [2018] ZAGPJHC 12 (20 February 2018)
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REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
APPEAL CASE NO: A5055/2016
CASE NO: 24108/2016
In the matter
between:
A
L.
Appellant
and
THE
CENTRAL AUTHORITY
FOR
First
Respondent
THE
REPUBLIC OF SOUTH AFRICA
F
L
Second
Respondent
Coram:
MEYER
J et NICHOLLS J et WEPENER J
Heard:
14
February 2018
Delivered:
20
February 2018
JUDGMENT
WEPENER, J:
[1]
This is an appeal against the judgment of Monama J, sitting as a
court of first instance, with leave of the Supreme Court of
Appeal.
The matter concerns minor children and was brought by the first
respondent, The Central Authority for the Republic
of South Africa,
who is the Chief Family Advocate, pursuant to article 12 of the Hague
Convention:
[1]
‘
Where
a child has been wrongfully removed or retained in terms of Article 3
and, at the date of commencement of the proceedings
before the
judicial and administrative authority of the Contracting State where
the child is, a period of less than one year has
elapsed from the
date of the wrongful removal or retention, the authority concerned
shall order the return of the child forthwith.
The
judicial or administrative authority, even where the proceedings have
been commenced after the expiration of the period of one
year
referred to in the preceding paragraph, shall also order the return
of the child, unless it is demonstrated that the child
is now settled
in its new environment.’
The second respondent was the second
applicant and the father of the two minor boys, who resides in Oslo,
Norway. The respondent
in the court below, now the appellant, is the
mother of the two boys and she currently resides in South Africa with
them.
[2]
The questions to be answered relate to the provisions of article 3
[2]
and article 13
[3]
of the Hague Convention. Only two issues are identified for
consideration on appeal: whether the minor children’s
habitual residence was in Oslo or Johannesburg during 2015 and
whether the second applicant consented or acquiesced to the removal
of the children from Oslo, or their retention in Johannesburg.
Insofar as the judgment of Monama J deals with other aspects
as well,
there is no need to consider them in these proceedings and it is to
be accepted that the second respondent indeed had
a right of custody
of the minor children whilst they were in Oslo with their parents.
The proceedings were instituted shortly after
the two boys were
retained in South Africa. Therefore the provision regarding the
expiration of one year contained in the Hague
Convention does not
apply.
[3] For the sake of convenience I
refer to the parties as they are on appeal.
BACKGROUND
[4] The appellant and the second
respondent met in South Africa during the 2010 World Soccer Cup
event. They were married on 11
November 2011 in Johannesburg.
Two minor sons were born in Johannesburg, M. on […] November
2011 and M. on […]
April 2014. A significant date in
this matter is June 2013 when the parties relocated to Oslo. It is
undisputed that the
appellant was domiciled and resident there. The
facts prior to 2013 regarding the parties’ conduct, where they
travelled
and stayed, either in South Africa, Norway or elsewhere, do
not impact on what happened from June 2013. The marriage
developed
some serious problems. During the marriage the parties
travelled regularly to South Africa and stayed in the property in
Parktown
North, Johannesburg, which property the second respondent
donated to the appellant in terms of their ante-nuptial contract. On
15 March 2015 the parties travelled to South Africa at the request of
the appellant, who wanted to visit her mother, the latter
who was due
to undergo medical procedures. The parties would have returned to
Oslo after the medical procedures and in accordance
with this,
purchased return flight tickets for the four family members. On 18
March 2015 the second respondent decided to return
to Oslo. On the
appellant’s version he was evading the service of a divorce
summons, issued by her. He was unexpectedly arrested
and detained by
security guards at the Gautrain station until the Sheriff of the
Court arrived to serve the summons on him.
After this
unpleasant incident he proceeded to Oslo. Shortly thereafter, the
second respondent commenced these proceedings in Oslo,
which resulted
in the matter being heard by Monama J. The order sought was for the
return of the minor children to their habitual
residence in Oslo.
[5] The appellant contended that the
habitual residence of herself and the children was in Johannesburg
and further that the second
respondent consented or acquiesced in the
removal to or retention of the two boys in South Africa.
[6] The following facts are relevant
for a decision regarding the minor children’s habitual
residence immediately prior to
their retention in South Africa.
They are registered in the Norwegian peoples’ registry and are
Norwegian citizens.
M. attended nursery school at the Tinkern
Kovas Kindergarten at the request of the appellant and the second
respondent. Both parties
assisted to register M. in the Norwegian
peoples’ register. There is no evidence that the nursery school
received notice
that he would be leaving for South Africa and would
not be returning. M. was accepted at the same nursery school to
commence
attending there in August 2015. There was no evidence
that this intended conduct had been cancelled or conveyed to the
nursery
school. Both boys received child welfare benefits,
which are granted to residents only in terms of the Norwegian
Children’s
Act. A child is considered resident if a child
stays in Norway for more than twelve months. M.’s frequent
flyer card
was registered to the parties’ Norwegian address. M.
was attached to Dr Igunn Sundsvold and M. to Dr Jan Stokke, although
there is a case made out by the appellant that he was also attached
to the same doctor Sundsvold. The relevance hereof is that
they had
free medical care in Norway.
[7] The second respondent is a citizen
of Norway and he lived there during 2015, at the time of the
retention. He visited South
Africa on a tourist visa which was only
valid for 90 days at a time. It is common cause that the respondent
established his businesses
in Norway and that he is still conducting
business there. M. had a dental appointment for September 2015 and M.
a medical appointment
set for August 2015. There is no evidence that
these appointments, which reveal the parties’ intention to stay
in Norway,
were cancelled.
[8] During the period June 2013 to
March 2015 the appellant applied for a family reunification visa in
Norway. She also applied
to attain a Norwegian identity number.
She registered for language classes for purposes of qualifying for
permanent residence
or citizenship. She was granted a proof of
residence in Norway. She took vehicle driving lessons. She
opened a bank
account. The appellant became a registered
taxpayer and tax returns were filed on her behalf in Norway.
She applied
for, and was granted, a Norwegian lump sum in connection
with the birth of M., which payment is only made to residents of
Norway.
She was also attached to Dr Sundsvold. In November 2014 the
appellant prepared an application for employment in a position of
compliance
officer in Oslo, which employment opportunity was of a
permanent nature. In the curriculum vitae which accompanied her
application
she stated that she was a resident in Norway and that the
reason for her former employment in South Africa was ‘to give
birth
to my son and move to Norway’.
APPROACH
[9] The purpose of the Hague
Convention is:
‘…
directed
at ensuring that the court seized with the custody hearing will be
the one within whose jurisdiction the child was actually
living for a
sufficient time to have become acclimatised (to the surroundings and
those with whom he or she may interact) and gained
both a sense of
attachment and belief that it would endure for a relative degree of
permanence.’
[4]
[10] In the same matter it was held:
‘
The
expeditious return of the child minimises the harm he or she may be
expected to suffer as a consequence of being uprooted from
a familiar
environment. Furthermore the court where the child was actually
living at the time of removal is generally most suited
to entertain a
custody dispute and receive evidence in an efficient and
cost-effective manner. Imposing an obligation on
the relevant
judicial or administrative authority to act promptly in securing the
child’s return may also act as a deterrent.’
[5]
This being so, the facts show on a
balance of probabilities that the appellant and the two boys,
relocated to Oslo in 2013 with
the intention to make it their
residence. Counsel for the appellant relied heavily on the fact that
the parties also had a home
in Parktown-North. The circumstances of
the donation of the house and its renovations in order to be a child
friendly home, is
a neutral fact if regard is had to the standard of
the home which the parties acquired in Oslo. Indeed, the father’s
evidence
cannot be disputed in many respects and the mother’s
conduct regarding herself and the minor children leads to the
conclusion
that the parties settled in Norway during 2013. The
finding of the court
a quo
that the two boys’ habitual
residence was in Norway during March 2015 is, in my view,
unassailable.
[11] The only further issue contended
for by the appellant is that the second respondent consented or
acquiesced to the fact that
the children were brought to South Africa
and not returned to Oslo in 2015. There is no evidence to
substantiate consent.
The reliance on the utterance by the second
respondent in the heat of the moment that the appellant and the
children would not
see him again during a marital dispute and a most
unpleasant arrest, cannot, in my view, constitute consent.
There is no
other evidence proffered to support the reliance on the
consent allegedly given by the second respondent. The facts relied
upon
by counsel for the appellant point the other way. The
institution of a divorce action in Norway by the second respondent as
well
as the institution of the Hague proceedings there 18 days after
his return to Oslo claiming that the children should be returned
to
Oslo, contradict any suggestion that he agreed to or acquiesced to
the children remaining in South Africa.
[12]
Acquiescence is a concept well-known in our law. A person is
said to acquiesce in something if such person by unequivocal
conduct,
knowing of his or her rights, inconsistently acts with the intention
to the contrary and shows that he acquiesced to a
set of facts. If
such a person has clearly and unconditionally acquiesced in, and
abided by, a situation, he or she cannot thereafter
challenge it. See
Gentiruco
AG v Firestone SA (Pty) Limited
[6]
where
Trollip J said:
‘
The
right of an unsuccessful litigant to appeal against an adverse
judgment or order is said to be pre-empted if he, by unequivocal
conduct inconsistent with the intention to appeal, shows that he
acquiesces in the judgment or order’.
In
Standard
Bank v Estate Van Rhyn
[7]
,
Innes CJ said:
‘”
If
a man has clearly and unconditionally acquiesced in and decided to
abide by the judgment it cannot thereafter challenge it.”’
What
is required is conduct leading to a conclusion of an intention not to
assail a factual position. The onus of proof rests on
the person
alleging acquiescence.
[8]
The high watermark of the appellant’s case is what the second
respondent said in a crude manner that she can keep the children.
This utterance during a matrimonial dispute is not open for an
argument that the second respondent, with full knowledge of
his
rights, decided to abandon the children.
[13] Counsel for the appellant relied
on a settlement proposal, which the second respondent had made during
2014 wherein one suggestion
was that the appellant and the minor
children should return to South Africa. Firstly, the proposal was
never accepted or implemented.
Secondly, it can never be said that a
person acquiesced in advance.
[14] Finally, counsel for the
appellant conceded during argument that the appellant acted deviously
and surreptitiously when she
brought the children to South Africa
with the intention of staying here and not returning to Oslo. This
deception was planned to
mislead the second respondent to think that
the family would return to Oslo after a visit to the appellant’s
ill-disposed
mother. Had the second respondent agreed that the
appellant and the children could relocate to Johannesburg, the
devious conduct
of the appellant to surreptitiously keep the children
in South Africa, was entirely unnecessary. The conduct supports the
opposite
to her argument that the second respondent agreed that the
children may remain in South Africa.
[15] Indeed, this devious conduct cuts
through the entire case and also impacts on the first issue dealt
with in this judgment.
The parties lived in Oslo and the appellant,
in a surreptitious manner, attempted to change that.
[16] The conclusion which I reach is
that both grounds of appeal are without merit.
[17] The parties provided the court
with an agreed order, should the appeal fail. There can be no
objection to the issuing of such
an order at their request.
[18] Counsel for the appellant
submitted that the costs order given by Monama J should be set aside
as this is mainly a matrimonial
matter where costs usually fall on
each party. Counsel laboured under the incorrect impression that
Monama J also allowed the costs
of counsel who held a watching brief.
That impression is erroneous and counsel who held a watching brief in
that court and this
court are not entitled to tax their costs nor did
they intend to do so.
[19] The appellant’s devious
conduct forced the second respondent to institute Hague proceedings.
She is solely to blame for
the state of affairs. The costs in the
divorce action may be another matter, but in this matter the order of
Monama J cannot be
faulted.
[20] Counsel for the first respondent
submitted that the costs of two counsel should be allowed on appeal.
The issue was not seriously
pursued when questioned why more than one
counsel was necessary to argue the two issues on appeal. However, due
to the nature of
the matter I believe that the first respondent was
entitled to take the prudent step to employ senior counsel.
[21] In all the circumstances, the
following order is issued:
1. The appeal is dismissed.
2. The appellant is to pay the costs
of the appeal, which costs include the costs of one counsel being a
senior counsel.
3. The following order is issued by
agreement between the parties:
3.1
M. L.
and M. L. (“the minor children”) be returned to Norway on
or before 20
th
March 2018.
3.2 It is recorded
that the appellant is not in possession of a valid Visa for Norway
and that the passports for the minor children,
both the Norwegian and
South African have expired.
3.3 The appellant
shall within 5 court days from date of this order, make application
for a Norwegian Visa.
3.4 The appellant
is authorised to approach the Department of Home Affairs in the
absence of the second respondent, to make application
for the renewal
of the South African passports for the two minor children, M. L.
and M. L..
3.5
The appellant is authorised to sign any and all documents necessary
to obtain the passports for the two minor children, in the
absence of
the second respondent. Should the appellant fail to do so, any
authorised Sheriff or his duly authorised Deputy of the
above
Honourable Court is hereby authorised to do so. The appellant shall
furnish the second respondent’s attorney Shapiro
Aarons on
email address
gordon@shapiroaarons.co.za
and the first respondent at
smaikoo@justice.gov.za
with proof that she has complied with the aforegoing.
3.6
Both parties are to co-operate fully with each other to obtain the
necessary:
3.6.1
Norwegian
Visa for the appellant; and
3.6.2
the Norwegian passports / temporary passports or travel documents, as
the case may be, for the minor children to travel to
Norway, (the
minor children, who are Norwegian citizens, will not be granted
Norwegian Visas); and
3.6.3
the
South African passports for the minor children.
3.7
The
appellant shall without delay attend with the minor children at the
Norwegian Embassy in order to facilitate the process and
provide such
documentation that she may have and sign such documentation as may be
required for the issue and processing of the
minor children’s
Norwegian passports / travel documents. To the extent that the second
respondent pays any costs for obtaining
the minor children’s
Norwegian passports / travel documents, the second respondent shall
immediately reimburse her for same.
3.8
To
the extent that the appellant (and in her absence, the second
respondent or such other third party who may be travelling to Norway
with the minor children) does not have the original unabridged birth
certificates of the minor children, they will be permitted
to travel
with certified copies of the minor children’s unabridged birth
certificates (whether certified in Norway or in
South Africa).
Notwithstanding the aforesaid, the parties will fully co operate
with one another and the authorities, both
in South Africa and
Norway, to ensure the return of the minor children to Norway, as
envisaged in this order and to the extent
required by the relevant
authorities, the parties shall sign all and any necessary affidavits
of consent, consent forms and any
other documentation necessary to
give effect hereto.
3.9 In the event
that the appellant is unwilling or refuses to travel with the minor
children, then the appellant is directed to
hand over all of the
travel document(s) of the minor children to the first respondent as
soon as the appellant comes into possession
of the South African and
Norwegian passports / travel documents.
3.
10 In the event of the appellant failing to comply with this order
set out in paragraph 1 above, the Sheriff of this court is
authorised
and directed to forthwith search for and seize such travel
document(s) of the minor children, wherever they may be found
and
hand same over to the first respondent.
3.11
In
the event of the appellant being unwilling to accompany the minor
children on their return to Norway, such unwillingness the
appellant
must communicate to both the first and second respondents on or
before 21 February 2018.
3.12
In the event of the
appellant electing not to return to Norway with the minor children,
the second respondent or a representative
of the Norwegian
authorities, being a registered social worker, or an advocate of the
High Court, duly appointed by the Family
Advocate, shall be entitled
to remove the minor children from the borders of South Africa and
travel to Norway with them at the
second respondent’s cost.
3.13
In the event the appellant accompanies the minor children to Norway,
the second respondent tenders for a period of no less
than 6 (six)
months from the time of the appellant’s return to Norway or
until such time as the Norwegian courts determine
otherwise whichever
is the later, and the second respondent will provide the following
assistance to the appellant, namely:
3.13.1 To pay for
the costs of flights one way to Norway, the second respondent making
allowance for some overweight. The second
respondent shall forward
details of the flight arrangements to the appellant’s attorneys
of record who will communicate same
to the appellant.
3.13.2
In
the event of the appellant being permitted by court order to return
to the Republic of South Africa with the minor children,
the second
respondent shall bear the costs of the flights for the appellant and
the minor children.
3.13.3
To
provide reasonable accommodation together with the costs of utilities
(ie water and lights and heating) in Ullern, in West Oslo,
being a
two / three-bedroom unit, reasonably furnished, in a safe area, close
to public transportation and reasonably close to
amenities. The
second respondent’s attorneys will furnish details of the
accommodation obtained by 28 February 2018;
3.13.4
To
pay the appellant an amount of NOK5 000-00 per month, NOK3
489.00 towards M.’s maintenance and NOK 4 869.00 towards
M. per
month, alternatively such amount as determined by the Norwegian
courts in respect of the minor children, on the basis that
they
reside with the appellant in Norway.
3.13.5
The
second respondent will pay the said maintenance into an account as
nominated by the appellant, which details will be provided
to the
second respondent upon 48 hours’ notice. Such amount will be
pro rata the number of days that the appellant and the
minor children
are in Norway for the first month and thereafter on or before the 1
st
day of each and every succeeding month.
3.13.6
The
second respondent shall make payment of reasonable clothing for the
minor children.
3.13.7
The
second respondent shall be liable to pay all medical expenses for the
minor children that are not covered by the Norwegian medical
services;
3.13.8
The
second respondent shall be liable for all education expenses to the
extent not covered by the Norwegian education system;
3.13.9
At
the appellant’s election, she may have the use of second
respondent’s motor vehicle immediately upon her arrival
in
Norway, being a Nissan X-Trail 2005 model, in a roadworthy and good
condition. The second respondent shall be responsible for
insurance,
license fees and reasonable Oslo tolls (which the appellant
undertakes not to abuse). The appellant shall be responsible
for all
other expenses.
3.14
The
appellant shall cooperate fully with this process to ensure the minor
children’s return to Norway without delay and forthwith.
3.15
The
second respondent is to pay the reasonable costs of one legal
representative (i.e. a person equivalent to an attorney/solicitor)
in
Norway for the appellant in respect of any current custody, access
and maintenance disputes or issues regarding the minor children
or in
respect of a variation of this Order, which costs shall be paid upon
receipt of invoice.
3.16
Either
party may approach the Norwegian Courts
inter
alia
:
3.16.1
for a variation of this
Order; and / or
3.16.2
making this order a
mirror order of court in Norway.
It is noted that the second respondent
undertakes not to initiate any criminal prosecution against the
appellant, as regards the
Hague Convention or any other criminal
offences to date.
________________________________________
W.L. WEPENER
JUDGE OF THE HIGH COURT
GAUTENG LOCAL DIVISION,
JOHANNESBURG
I
agree.
________________________________________
P. A. MEYER
JUDGE OF THE HIGH COURT
GAUTENG LOCAL DIVISION,
JOHANNESBURG
I agree.
________________________________________
C.H. NICHOLLS
JUDGE OF THE HIGH COURT
GAUTENG LOCAL DIVISION,
JOHANNESBURG
Counsel for Appellant: S.J. Martin
Attorneys for Appellant: Fiona
Marcandonatos Inc.
Counsel for Respondents: F.
Foulkes-Jones SC with A. Mofokeng
Attorneys for Respondents: State
Attorney, Johannesburg
[1]
The
Hague Convention on Civil Rights of International Child Abduction.
[2]
‘
Article
3.
The removal or
retention of a child is to be considered wrongful where –
(a)
it is
in breach of rights of custody attributed to a person, an
institution or any other body, either jointly under the law of
the
state in which the child was habitually resident immediately before
the removal or retention; and
(b)
at the
time of removal or retention those rights were actually exercised
either jointly or alone, or would have been exercised
but for the
removal or retention. The rights of custody mentioned in
subparagraph (a) above, may arise in particular by
operation of law
or by reason of a judicial administrative decision, or by reason of
an agreement having legal affect under the
law of that State.’
[3]
Article
13 provides that ‘a judicial or administrative authority of
the requested state is not bound to order return of
the child if it
is established that: (a) the person, institution or other body
having the care of the person of the child was
not actually
exercising the custody rights at the time of removal or retention;
or had consented to or subsequently acquiesced
in the removal or
retention; or (b) there is grave risk that his or her return would
expose the child to physical or psychological
harm or otherwise
place the child in an intolerable situation.’
[4]
The
Central Authority v TK
2015 (5) SA 408
GJ para 38.
[5]
Para
13.
[6]
1972
(1) SA 589 (A).
[7]
1925
AD 246
at p 274.
[8]
See
Dabner
v SAR&H
1920 AD 583
at 594.