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[2018] ZAGPJHC 101
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L v L (2017/6235) [2018] ZAGPJHC 101 (29 March 2018)
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REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
CASE
NO: 2017/6235
Not
reportable
Not
of interest to other judges
Revised.
29
March 2018
In the matter between:
L
F
Applicant
And
L
A
Respondent
J U D G M E N T
MODIBA,
J
:
[1] The applicant seeks an order declaring that
the order granted on 21 August 2015 by my sister Mahalelo AJ (as she
then was),
in terms of Rule 43 of the Uniform Rules of Court, under
case number 14868/201, is set aside as at the date it was granted,
alternatively
from the date of the respondent’s employment.
Alternatively, the applicant seeks to have the order discharged and
further
alternatively declared void. He also seeks an order declaring
that the respondent is disentitled to claim arrear maintenance
amounts
in respect of the said order from the date of the order,
alternatively from the date of the respondent’s employment. If
successful,
he seeks punitive costs. The respondent opposes the
application. She seeks its dismissal with punitive costs.
[2] The applicant is a national of the Kingdom of
Norway. He met the respondent, a South African national, when he was
visiting
South Africa for the 2010 World Cup event. They got married
in South Africa on 11 November 2011. Their first child, a boy was
born
in South Africa on 30 November 2011. Their second child, also a
boy, was born in South Africa on 28 April 2014.
[3] They have had an elaborate litigation history.
This history, as well as material facts concerning the parties’
relationship
and marriage is narrated in the judgment by Monama J and
a full court judgment by Wepener J. I do not intend regurgitating
them
here as doing so would serve no purpose. I only do so to the
extent such facts provide a relevant chronology for this application.
[4] In July 2015, the applicant instituted
proceedings in terms of The Hague Convention to have the parties’
children repatriated
to Norway. The basis of those proceedings was
the alleged unlawful retention of the children in South Africa by the
respondent
from March 2015. The Hague Convention application was
heard Monama J who ruled that the children’s retention is
unlawful
and ordered their return to Norway. The respondent applied
for leave to appeal Monama J’s decision to the Supreme Court of
Appeal (“the SCA”) after Monama J refused her leave. The
SCA granted her leave to appeal to the full court of this
division.
Those proceedings culminated in the full court decision by Wepener J.
The full court upheld Monama J’s judgment
and ordered the
children’s return to Norway. As I will demonstrate later, the
full court judgment has substantially curtailed
the issues in this
application.
[5] The circumstances that led to The Hague
Convention proceedings are as follows: the parties and their
children, who as Monama
J found, confirmed by the full court on
appeal, had become habitual residents of Norway from June 2013,
visited South Africa in
March 2015 to attend to the applicant’s
mother who had to undergo a surgical procedure. It was during that
visit that the
respondent surreptitiously initiated divorce
proceedings and sought to have summons served on the applicant within
2 days of their
arrival in the country. On the advice of his
Norwegian lawyer, the applicant tried to urgently leave South Africa
to evade service
of the summons. He was arrested at the Gautrain
Station and detained until the summons had been served on him. He
then departed
for Norway leaving the respondent and the boys in South
Africa. His plea for the children’s return to Norway fell on
deaf
ears. He initiated The Hague Convention proceedings in July
2015. Monama J heard the application on 20 and 21 January 2016 and
ruled in the applicant’s favour. The full court only ruled on
the appeal against Monama J’s judgment in March 2018.
As a
result, the applicant has not been able to see his children since he
left South Africa in March 2015. His attempts to visit
them in South
Africa were thwarted by the respondent’s threats to have him
arrested for failing to comply with the Rule 43
order.
[6] While The Hague Convention proceedings continued to play out in
South Africa and notwithstanding the respondent’s pending
divorce action, the applicant instituted separation proceedings
against the respondent in Norway on 30 March 2015. Separation
proceedings are a precursor to divorce proceedings in Norway.
Pursuant thereto, a divorce license was granted by County Governor
of
Norway on 23 September 2016. The respondent disputes its validity on
the basis that she was not served with the summons. Further,
she
alleges that those proceedings are inappropriate given that her
pending divorce action – which the applicant is opposing
-
predates the divorce proceedings in Norway. The applicant stands by
the divorce license, and seeks to use it as one of the basis
for the
order he seeks in the present application. He contends that the Rule
43 order lapsed on 23 September 2016 with the granting
of the divorce
license. The other grounds he relies on are:
[6.1] Article 16 of The Hague Convention prohibits the granting of
the order granted by Mahalelo J. The children ought to have
been
returned to him in Norway on 4 February 2016 in terms the order by
Monama J. The said order provides for the maintenance of
the
respondent and the minor children;
[6.2] the respondent’s non-disclosure of
material facts during the Rule 43 proceedings which resulted in that
order being
granted and subsequent fraudulent misrepresentation,
precluding him from pursuing a Rule 43(6) application.
[7] The respondent has raised the following points
in limine
:
[7.1] the applicant’s failure to comply with her request for
security for costs;
[7.2] the rule on which the applicant relies for the relief he seeks
is unclear. He fails to meet the requirements of Rule 53.
An order in
terms of Rule 43 may not be amended in terms of Rule 42, Rule 31 or
the common law. The order sought by the applicant
is incompetent in
the absence of an application for variation in terms of Rule 43(6) or
an agreement between the parties;
[7.3] there is a pending Rule 43(6) application
launched by the applicant seeking the same relief he seeks in this
application.
[8] The respondent’s counsel informed the
court from the bar that the respondent abandons her request for
security for costs.
As I find below, the other points
in
limine
are spurious and stand to be
dismissed.
[9] There are two disputes of fact on the papers.
One relates to the parties’ and their children’s habitual
residence.
The applicant contends that Norway is. The respondent
contends that it is not Norway but South Africa. This dispute was
very central
to The Hague Convention proceedings where the respondent
opposed the return of the children to Norway on the basis that South
Africa
is their habitual place of residence. The dispute is also
playing out in the respondent’s divorce proceedings where the
applicant
has raised a special plea placing the jurisdiction of this
court in dispute based on his version of the parties’ habitual
residence. Monama J found against the respondent. The relevance of
this dispute in the present proceedings is the respondent’s
continued insistence that South Africa is the parties’ habitual
residence and that Monama J found wrongly. The full court
upheld
Monama J’s findings. The respondent has not appealed the full
court judgment. From submissions made by the applicant’s
counsel from the bar, which were not contested by the respondent’s
counsel, the respondent has complied with the full court
judgment.
She travelled with the children to Norway on 19 March 2018 as ordered
by the full court. That dispute is therefore settled.
[10] The second dispute relates to the divorce in
Norway. The respondent refuses to acknowledge it because she was not
duly served
with divorce papers. It is for that reason that she
contends that she was denied the opportunity to defend it. According
to the
applicant, the respondent’s attorneys were advised of
these proceedings by his Norwegian attorneys by email but neglected
to respond thereto. He further contends that the office of the
Norwegian County Governor also notified the respondent’s
attorneys of record of the proceedings. The Norwegian County Governor
has not filed a confirmatory affidavit to that effect. These
emails
are not disputed by the applicant. What she is asserting is the
importance of personal service of summons given that the
said
proceedings would change her personal status. Personal service of
summons in such proceedings is a requirement under South
Africa law.
It is unclear what the prescribed requirements are under Norwegian
law. The applicant has not placed this information
before the court.
From the papers it appears that the respondent has appealed the
divorce license. During argument counsel for
the applicant was in
possession of a supplementary affidavit deposed to by the applicant
wherein he sought to appraise the court
of further developments in
respect of the said appeal. Counsel for the respondent objected to
its admission because she had not
read it. She asserted the
respondent’s right to reply thereto. The applicant’s
counsel did not persist in his attempt
to place the supplementary
affidavit before the court, correctly so because the respondent would
be prejudiced by its admission
having not been afforded the
opportunity to reply thereto.
[11] In my view the dispute of fact in relation to
the divorce is not material to the present proceedings. It will more
appropriately
play itself out in the respondent’s divorce
action where, on his counsel’s submission the applicant intends
filing
a special plea contending that the marriage between the
parties no longer exists.
[12] Further, even on the respondent’s
version of the disputed Norwegian divorce license, the pending
divorce action in South
Africa does not justify the continuation of
the Rule 43 order. The respondent is in Norway with the children. The
full court judgment
makes full provision for their maintenance solely
by the respondent in Norway, including provision for the respondent’s
legal
costs in Norway where the merits of the dispute relating to the
custody of the children will be determined as envisaged by Article
16
of The Hague Convention. Therefore to the extent that the full court
judgment provides for the maintenance of the respondent
and the
children as well as the respondent’s legal costs in Norway, the
Rule 43 order cannot co-exist with it. On this basis
alone, the said
order stands to be discharged. The question that arises is the date
and terms of its discharge.
[13]
The point
in
limine
in relation to the pending Rule 43(6) application is not only a red
herring; it has also been overtaken by events. The applicant
would
have probably set it down for hearing had the respondent – as I
find below – not failed to disclose material
facts relating to
her employment prospects and subsequent employment status. It is
disingenuous of her to bemoan the applicant’s
failure to have
the Rule 43(6) application determined given her conduct in these
proceedings. As at the hearing of the present
application, the
applicant had withdrawn the said Rule 43 (6) application. There is no
merit to the respondent’s complaint
that the applicant did not
properly withdraw that application in absence of an agreement between
the parties or a court order and
a cost tender. In terms of Rule
40(1) which regulates the withdrawal of proceedings, an applicant may
unilaterally withdraw proceedings
before they are set down for
hearing. That the Rule 43(6) application had not been set down when
the applicant delivered the notice
of withdrawal is common cause.
Further, the embodiment of a cost tender in the notice of withdrawal
is not a peremptory requirement.
[1]
The respondent may if she seeks the applicant’s liability
for costs determined, bring an application for such relief
in terms
of Rule 41(1) (c). It remains to be seen whether the respondent will
succeed in such an application given her prejudicial
conduct in these
proceedings.
[14] The applicant seeks the Rule 43 order set
aside from the date it was granted for several reasons. It was
contended for the
applicant that as Monama J found, confirmed by the
full court, the children’s retention in South Africa from March
2015 to
19 March 2018 was unlawful. Being habitual residents of
Norway, their maintenance ought to have been determined by the
Norwegian
Court in terms of the law of that Kingdom. Further, it was
contended for the applicant that the respondent flouted her
undertaking
to the Family Advocate that pending The Hague Convention
proceedings, she would not set the application down for hearing.
[15] Article 16 prohibits the determination of the
merits of a dispute regarding the children’s custody, not their
maintenance.
De facto
the children remained in South Africa for the aforementioned period.
They had material needs in South Africa. In terms the Rule
43 order,
the applicant had to provide for their maintenance in fulfilment of
his legal duty of support. He deliberately disregarded
that order
because he disagreed with it. Instead of the R20, 763.13 he was
ordered to pay to the respondent monthly for the maintenance
of each
child, he paid R15, 000 for both children as he believed the latter
amount was adequate for their needs.
[16] The applicant’s counsel sought from the
bar to have the children’s needs reconsidered in these
proceedings and
for the amount for their maintenance reduced to R15,
000. Such a case is not made out in the papers. In prayer 2 of the
notice
of motion, the applicant seeks the respondent’s
disentitlement to the full maintenance arrears. I take a dim view to
this
request. The applicant’s view that R15, 000 per month was
adequate for the minor children’s maintenance is not only
arbitrary; it is disrespectful of the South African judicial
authority. He defended the Rule 43 application. The amount set for
the children’s maintenance was based on their needs and his
ability to solely meet them. That he believed the amount was
inflated
does not justify his retrospective request for a reconsideration of
the order in the present application.
[17] The applicant’s counsel also argued
that I exercise a discretion to reduce this amount by the amount the
respondent was
legally obligated to maintain her children from the
date of her employment and that I quantify her obligation at 20% of
the children’s
maintenance.
[18] This court not only recognizes but also
upholds the parents’ joint legal duty to maintain their
children and would enforce
it without hesitation. However, the
applicant did not come to court seeking the reciprocation of the
respondent’s parental
duty of support and as such did not make
out such a case on the papers. He came seeking to be fully absolved
from arrear maintenance
as well as an order articulated in paragraph
1 of this judgment. Therefore the request for the retrospective
apportionment of the
children’s maintenance is also not
entertained.
[19] South African courts normally denounce a
litigant who acts unlawfully by refusing to come to their aid. The
circumstances of
this case warrant a different approach firstly
because both parties do not stand before this court with clean hands
but more importantly
because the matter involves the children’s
interests and the court has regard to their paramountcy in terms of
section 28
of the Constitution of the Republic of South Africa. That
is the most appropriate way in my view of disentangling the web of
unlawfulness
that the parties are embroiled in.
[20] The applicant’s refusal to comply with
the Rule 43 order in respect of the children’s maintenance
cannot be condoned.
To do so would condone his disregard for the
sovereignty of the Republic of South Africa and disrespect for its
judicial authority
by a foreign national. On the other hand, the
respondent’s conducts is, as I find below,
prima
facie
unlawful.
[21] Even if on the applicant’s contention
that he would have applied for a reconsideration application earlier
had the respondent
duly disclosed her employment to him when asked
to, such disclosure would probably not have absolved him from his
legal duty to
maintain his children. At best, there would have been
an apportionment of the children’s maintenance based on the
proportionate
means of the parties. As mentioned above, no case is
made out to retrospectively apportion the maintenance.
[22] I hold a different view in respect of the
respondent’s arrear maintenance. The Rule 43 order provides for
R20, 763.13
monthly in respect of her maintenance. The applicant
seeks this portion of the order set aside from the day it was
granted. The
respondent initially opposed this. During argument, her
counsel submitted that the respondent is willing to forfeit her
portion
of the maintenance. Therefore this portion of the Rule 43
order stands to be discharged from 21 August 2015. Despite the
respondent’s
late withdrawal of this portion of her opposition,
it is appropriate that I deal with the reasons that hard-pressed her
to this
resort as they justify other terms of the order I intend
handing down in these proceedings.
[23] When the respondent launched the Rule 43
proceedings in April 2015 following her now found to be unlawful
retention of the
children in South Africa, although she informed the
court in her founding affidavit that she is unemployed, that she
intends re-entering
the job market and that she had taken concrete
steps in that regard; she painted a bleak picture of her employment
prospects. She
cited as a reason the fact that she had been out of
employment for 4 years. She is a qualified chartered accountant.
Before she
met the applicant she was employed by Rand Merchant Bank
(“RMB”) and well remunerated commensurate with her
qualifications.
She resigned with the applicant’s concurrence
after she conceived the parties’ first child.
[24] After the Rule 43 order was granted, the
applicant sought to be appraised of the efforts she has taken to
return to work. His
first request to the respondent was by email on
10 September 2015 to which he received no reply. His repeated
requests both to
the respondent’s attorneys of record and to
the respondent directly also did not yield a response. His efforts to
obtain
this information include a request for further particulars for
trial and a question at the pre-trial conference held in the
respondent’s
divorce action. Her attorneys undertook to take
instructions from her and to revert to the applicant’s attorney
but never
did so. With the passage of time, the applicant began to
suspect that the respondent was employed. By then some 15 months had
lapsed
since his first request. In addition, the applicant also
enquired of this directly from the respondent telephonically in the
first
half of December 2016. She responded in the negative.
[25] The applicant placed this question in issue
in these proceedings by documenting in his founding affidavit all the
requests
directed initially to the respondent and later to her
attorneys of record including the aforementioned telephone
conversation.
He further mentions that he recently became aware that
the respondent is employed by RMB Private Bank, a Division of First
Rand
Bank Limited since October 2015; hence he sought the Rule 43
order set aside with effect from this date in the alternative. He
called on the respondent to make a full disclosure to this court of
her employment circumstances, details of the process that led
to such
employment and the terms of employment.
[26] In her answering affidavit deposed to on 20
March 2017, instead of directly answering these questions, the
respondent questions
the purpose of the applicant’s
non-disclosure allegations, and contends that if the applicant is of
the view that there has
been a change of circumstances since the Rule
43 order was granted, he ought to have the order changes varied in
terms of Rule
43(6). She also placed the applicant’s
allegations in dispute. Despite being afforded another opportunity to
disclose her
employment status and to play open cards with this
court, she responded as stated above.
[27] In reply the applicant filed documents
relating to the respondent’s employment with RMB Bank obtained
on a
subpoena duces tecum
(“the
subpoena”). The applicant’s attorney of record caused the
subpoena to be personally served on the Head of
Human Capital at RMB
on 24 March 2017 after probingly calling RMB to verify if the
respondent is employed there. From these documents,
it appears that
on 1 September 2015, approximately 10 days after the Rule 43 order
was granted, the respondent was offered employment
by RMB as an
accountant with effect from 1 October 2015 for an annual remuneration
of R800, 000, a variable annual bonus and participation
in a share
incentive scheme. She received a 10% increment in 2016.
[28] The applicant’s founding affidavit, the
respondent’s answering affidavit and the applicant’s
reply to which
the respondent’s employment records with RMB are
filed, contains
prima facie
evidence
under oath, of the respondent’s material non-disclosure of her
efforts to find employment during the Rule 43 proceedings,
as well as
a fraudulent misrepresentation of her employment status at least from
10 September 2015 when the applicant addressed
an email to her
soliciting this information. It is improbable that the process of
placing a chartered accountant would take less
than 10 days. It is
therefore probable that when the Rule 43 application was argued on 21
August 2015, the process that resulted
in the respondent’s
placement with RMB had commenced. Nothing precluded the respondent
from delivering a supplementary affidavit
disclosing her
participation in the RMB placement process. Her counsel could have
done so even from the bar at the very latest.
That the process that
led to the respondent’s employment with RMB had commenced when
the Rule 43 application was argued is
a reasonable inference to draw
in these circumstances. As displayed by her subsequent
prima
facie
fraudulent misrepresentation of
her employment status, she probably deliberately failed to disclose
this information and continued
to lie to the applicant regarding the
true state of affairs. I find the respondent’s conduct in these
proceedings improper
and distasteful.
[29] As mentioned above, the respondent has tended
to forfeit her arrear maintenance amount. The date from which the
Rule 43 order
ought to be discharged remains relevant in respect of
the children’s arrear maintenance. For reasons advanced
earlier, 19
March 2018 being the date on which the children were
returned to Norway in compliance with the full court judgment, is the
appropriate
date for such discharge.
[30] For reasons set out above, the applicant
stands to partially succeed in having the Rule 43 order set aside
from 21 August 2015
in respect of the respondent’s maintenance.
The remainder of the Rule 43 order stands to be discharged from 19
March 2018.
The Rule 43 order also makes provision for the children’s
monthly educational expenses in the amount of R7, 700 payable by
the
applicant directly to the relevant service providers. To the extent
that the applicant defaulted on this payment, it is appropriate
that
he is also ordered to pay this amount.
[31] Cost orders are rarely granted in family
related matters. However the respondent’s, improper, despicable
and
prima facie
perjurous and fraudulent conduct in these proceedings warrants a
punitive costs order. Further it is proper that the respondent’s
conduct in the Rule 43 proceedings and these proceedings is referred
to the South African Institute of Chartered Accountants (“SAICA”)
as well as to the Office of the Director of Public Prosecutions for
investigation because,
prima facie
,
it is inconsistent with the ethical standards applicable to members
of the accounting profession who are required to conduct themselves
with integrity. Further it is
prima
facie
unlawful.
[32] Although the applicant also acted unlawfully
by refusing to fully comply with the Rule 43 order, the evidence of
malicious
intent on his part is absent. The extent of his efforts
through Hague Convention proceedings and the appeal proceedings in
relation
thereto to be reunited with his children paints the picture
of a father who places a high premium to his parental
responsibilities.
Although his disrespect for the Rule 43 order is
not condoned, it is clear that the respondent sought to gain an
unfair advantage
from that order. Therefore the respondent’s
prejudicial conduct in my view vindicates him, justifying an
indulgent response
from this court. Refusing his request to have the
arrears in respect of the children’s maintenance quashed is in
my view
appropriate censure for his conduct in these proceedings.
[33] In the premises, the following order is made:
ORDER
________________________________________
L T MODIBA
JUDGE OF THE HIGH COURT
GAUTENG LOCAL DIVISION, JOHANNESBURG
1.
The Rule 43 order, handed
down by Mahalelo AJ, dated 21 August 2015, is hereby discharged.
2.
The Applicant is hereby
ordered to pay to the respondent
pendente
lite
maintenance in
respect of the two minor children as from 21 August 2015 up and until
19 March 2018, at the rate of R20 763-13
per month per child,
less any and all amounts paid by the Applicant to the Respondent up
and until 19 March 2018.
3.
To the extent that the
Applicant has defaulted on paragraph 3 of Mahalelo J’s order,
he is also ordered to pay to the relevant
service provider R7, 700
per month in respect of the children’s educational expenses
from 21 August 2015 until the respondent’s
liability to the
relevant service provider is extinguished in terms of the agreement
between the respondent and the said service
provider.
4.
To the extent that the
respondent paid for the children’s educational expenses, the
applicant is ordered to reimburse the
respondent in respect of such
expenses for the period referred to in paragraph 3 above to the
maximum of R7, 700 per month.
5.
The Applicant shall not be
liable to pay any maintenance to the Respondent
pendente
lite
in terms of the
order by Mahalelo AJ as from 21 August 2015 up and until her
departure from the Republic of South Africa on 19
March 2018.
6.
The Respondent is referred
to the South African Institute of Chartered Accountants to enable
them to investigate the conduct of
the Respondent in the Rule 43
proceedings before this Court under Case No: 14868/2015 and in these
proceedings.
7.
The Respondent is referred
to the Office of the Director of Public Prosecutions to investigate
the conduct of the Respondent in
the Rule 43 proceedings before this
Court under Case No: 14868/2015 and in these proceedings.
8.
The costs of this
application shall be paid by the Respondent, on the attorney client
scale, such costs to include the postponed
proceedings from 31 August
2017, as well as the hearing before me including the costs of two
counsel.
9.
The
Registrar of this court is directed to cause the papers in these
proceedings and in the proceedings under case number
Case
No: 14868/2015 before this court, as well as this judgment to be
delivered to the Chairperson of the South African Institute
of
Chartered Accountants and to the Office of the Director of
Prosecutions for the investigation of the Respondent’s conduct
as aforesaid and for appropriate action.
________________________________________
MADAM JUSTICE L. T. MODIBA
JUDGE OF THE HIGH COURT
GAUTENG LOCAL DIVISION, JOHANNESBURG
APPEARENCES
Plaintiff
Counsel:
Adv
J Berlowitz & Adv CJ Smit
Instructed
by:
Shapiro-Aarons
INC
Defendant’s
Counsel:
Adv
S Martin
Instructed
by:
Fiona
Marcandonatos INC
Date
heard:
22
March 2018
Date
judgment delivered:
29
March 2018
[1]
Rule 41
(1)
(a)
provides
that: “A person instituting any proceedings may at any
time before the matter has been set down and thereafter
by consent of
the parties or leave of the court withdraw such proceedings, in any
of which events he shall deliver a notice of
withdrawal and
may
embody in such notice a consent to pay costs; and the taxing master
shall tax such costs on the request of the other party.
(Emphasis
added).
…
(c)
If
no such consent to pay costs is embodied in the notice of
withdrawal, the other party may apply to court on notice for an
order for costs.