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[2019] ZAGPJHC 98
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A R v S S and Another (2019/8877) [2019] ZAGPJHC 98 (25 March 2019)
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: 2019/8877
In
the matter between
A
R APPLICANT
and
S S
FIRST
RESPONDENT
D
C SECOND
RESPONDENT
J
U D G M E N T
Headnote
– urgent application by grand-mother for access to
granddaughter and the appointment of an expert to investigate
whether
denial of access has caused the child “alienation syndrome”
or other psychological harm
Held:
application not urgent, abuse of the process to exploit courts in
principle stance that all matters involving a child are
urgent
without proper motivation in the given case
Held:
the application, on the facts, did not make out a proper case to
warrant the intrusion into the lives of the child or her
parents–
application dismissed with attorney and client costs
SUTHERLAND
J:
[1]
This is an application brought urgently, by the applicant (R) against
the two respondents who are respectively her former daughter
in law
(S) and her son (D). The purpose of the application is to compel the
respondents to grant R access to the respoindents’
daughter T,
at present eight years old, every alternate Saturday between 10h00
and 17h00, “reasonable” telephonic contact
and,
furthermore, to procure an order that Dr R Fasser investigate the
circumstances of T to determine whether she is at risk of
“
emotional and phycological harm … including alienation
syndrome” with a view to establishing the “need”
for R to have “liberal” rights of contact with her.
The ancillary relief sought compels co-operation in this
exercise.
Also, R seeks an interdict against removal of T from the country.
[2]
It was incumbent to justify an urgent application. Two grounds are
relied upon. First the threat of removal to Russia. That
risk, as the
answering affidavit shows could never have been bona fide. S, who is
Ukrainian, and both her parents are permanently
living in
Johannesburg and have been since shortly after T’s birth, these
facts are known to R. The ground has been
shown to be
unsubstantiated. The second ground is that T’s psyche is
imperilled because the respondents have not allowed
R access since 10
February 2019.
[3]
The application was initiated on 8 March and set down for 18 March
2019. That is, 26 calendar days after the last visit, and
on 10
calendar days’ notice, the application was set down.
[4]
An affidavit stretching across 41 pages was filed in support. The
aspect of why these circumstances are urgent (other than the
unsubstantiated removal allegation) is addressed by alleging that the
welfare of children is an automatically urgent matter. I
view this
sweeping allegation an arrogant abuse of the process in the absence
of any further substantiation. Such abuse trades
on the assumption
that judges will be reluctant not to assess a matter involving a
child despite a failure by a litigant to do
justice to the court
process. In this R’s attorney is as much at fault as is R.
[5]
However, in a traverse of R’s tome can the urgency with which
the application has been brought be justified? In my view,
it cannot.
What is absent is any suggestion that S is an incompetent mother or
neglects T in the least. True enough, D seems to
be an incompetent
adult and is at present, and for the foreseeable future, in a drug
rehabilitation home to wean him off his taste
for drugs and
prostitutes. It bears mention that the respondents were divorced on 5
March 2019 and among the arrangements are that
S is the sole guardian
for these very reasons. T’s safety is not an issue.
[6]
Of course, that sort of danger to the child is no part of the case R
seeks to make. R’s case is confined to the effect
of
her
not seeing the child regularly
and often. R’s
affidavit is a long narrative of her perception of how important she
is in the life of T. She claims that
her relationship is more than a
grandmother in the ordinary sense, but that she has a “special”
and “unique”
relationship. The facts alleged by her are
denied, almost in all, by S. S does not suggest that R was
remote during T growing
up, and freely admits her presence in
the life of the family, but asserts that R’s account is
exaggerated and, in several
instances, mendacious. There are several
material facts in dispute: of greater importance: whether T longs for
R, cries when she
cannot be with her, once hid in the bathroom to
evade being taken home and suffers psychologically when apart from
her. Paradoxically
R herself mentions long periods during which no
contact occurred, one passage being 9 months.
[7]
The context in which R’s demands are made is significant. R is
obviously a very wealthy person. Her affidavit states that
she has
spent millions on D and his family. According to her he owes her
R12m. At the time this application was brought she was
deep into a
barrage of litigation against the respondents. A business, DSC
Transport, capitalised by her for D and badly
run by him is the
subject of a pending liquidation application at R’s instance.
The respondents say that whilst driving that
liquidation (a previous
liquidation application was brought in 2017 and then dropped), R has
appropriated the assets of the business
and diverted them for use in
her own business Phoenix Transport. Not content with that, R admits
she got D arrested for drug abuse
and that action led to his de facto
court-ordered incarceration in a rehabilitation clinic. S says R got
her arrested on fraud
charges relating to alleged misappropriation of
DSC business assets. Then R has launched sequestration proceedings
against the
joint estate of the respondents. On top of that, the
proceeds of the recent sale of their matrimonial home, at present in
trust,
was the subject matter of a freezing application. That order
was taken ex parte and the return day of the rule nisi came before
me
on the same day as this case was heard when the rule nisi was
discharged. The fate of that matter is the subject of a separate
judgment.
[8]
Thus, in the context of this plethora of litigation and its
implications on family dynamics, this application concerning T’s
welfare has been brought. S says that in this climate, access by R to
the child has been denied. I hasten to add, at the time the
matter
was heard access had been denied for a period of five weeks. S
alleges that the litigation as a whole is mala fide and is
part of
R’s obsessive need to control people; indeed, it is alleged
that R has used her wealth to control D and that this
application
must be seen in that light. In my view, that thesis is by no
means implausible but in these proceedings no firm
finding is
necessary.
[9]
The relief sought is grossly intrusive and warrants firm and
convincing grounds to justify it. Instead I read the founding
affidavit to be reflective of a highly narcissistic perception of the
world in which it is R’s subjective needs that are being
pandered to.
[10]
I am unconvinced that the allegations made, read together with the
denials of the respondents which stand unrebutted justify
the relief
sought nor the urgent nature. The application is to be dismissed.
[11]
The considerations mentioned by me relating to the abuse of the
process warrant a costs order on the scale of attorney and
client.
[12]
The Order
(1)
The application dismissed.
(2)
The applicant shall bear the respondents’
costs on the attorney and client scale.
________________________________
ROLAND
SUTHERLAND
Judge
of the High Court
Gauteng
Local Division, Johannesburg
Date
of hearing: 20 March 2019
Date
of judgment: 25 March 2019
For
the Applicant: Adv RM Courtenay
Instructed
by: JM Shoot Attorneys
For
the Respondent: Adv I Ossin
Instructed
by: Scalco Attorneys Inc