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 417
|
|
R v B (10128/2017; 44171/2017) [2018] ZAGPJHC 417 (5 June 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
OFFICE
OF THE CHIEF JUSTICE
REPUBLIC
OF SOUTH AFRICA
HIGH
COURT
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 10128/2017
44171/2017
Date
of Hearing: 31/05/2018
Date
of Judgment: 05/06/2018
In
the matter between:
K
R
Applicant
And
S
B (nee
R)
Respondent
JUDGMENT
MASHILE
J:
[1]
The Applicant and the Respondent are x-wife and husband. In order to
avoid confusion I shall henceforth refer to them as R and
B and
parties shall mean both of them. Of their relationship as husband and
wife was born J. R (“the minor child”).
Serving before
this court were two applications, one launched by B and the other by
R. The former pertains to the following:
1.1
Suspension of R’s rights and responsibilities of guardianship
concerning the minor child pending finalisation of Action
proceedings
launched under case number 28039/2015 (the “Action
Proceedings”);
1.2
The second prayer is in terms of Section 28 of the Children’s
Act (read with Sections 18(2)(c) and 18(3)(c)(iv)) and it
relates to
the suspension of the requirement that the consent of R is necessary
for any application for the attainment of a passport
for J, until
such time as J attains the age of majority, failing which, and only
where prayer 1 is not granted, until the finalisation
of the Action
Proceedings;
1.3
Suspending the requirement in terms of Section 28 of the Children’s
Act (read with Sections (read with Sections 18(2)(c)
and
18(3)(c)(iii) thereof), that the consent of R is necessary for the
departure or removal of J from the Republic of South Africa,
until
such time as J attains the age of majority, and subject to certain
provisos as set out in the Notice of Motion;
1.4 Costs of the
Application on the attorney and client scale.
I
shall henceforth refer to this application as “the travel
application”.
[2]
The second application is one brought by R against B, under case
number 10128/2017, for an application to compel B to conclude
a
mandate with expert Dr. Robyn L Fasser, in order to submit B and the
minor child to an assessment to determine R’s rights
of access
to the minor child (“the Assessment Application”).
[3]
Both these applications were settled on 28 May 2018 but the parties
could not agree on who should bear the costs. The matter
was then
stood down until 31 May 2018 for argument on costs. R’s Counsel
asserted that there should be no cost order because
both parties
believed that they were acting in the best interest of the minor
child when they defended or launched their respective
applications.
[4]
In justification of the above, Counsel for R referred to the case of
McCall v
McCall
1994
(3) SA 201
(CPD)
at 209B-C where the court declined to make a cost order on the ground
that in contesting the case, the parties believed
that they were
acting in the best interest of the minor child and that the outcome
did not make the one or the other a winner or
loser. The same
conclusion was also reached in
Ford
v Ford
(52/2005)
[2005] ZASCA 123
;
[2006] 1 All SA 571
(SCA) (1 December
2005) at paragraph 27. The reason for refusing to make a cost
order in this case was that both parties
acted in good faith as they
thought that they were acting in the best interest of the minor
child. There are two further
cases the outcome of which is
similar to these ones.
[5]
B’s submission insofar as the assessment application is
concerned is that R should be saddled with a cost order.
She
argues that the need for the appointment of an expert to assess was
brought about by R’s lack of exercise of his right
of access to
the minor child for a period of three years. It was not
challenged that B has always been prepared to submit
herself and the
minor child to an expert who would be prepared to include a
confidentiality clause whose purpose would have been
to prevent and
protect the minor child of the fact of her abuse.
[6]
B asserts further that R was also reluctant, without reason, to
conclude a separate agreement to give effect to confidentiality.
Again, it was not refuted that R conceded in his letter dated 10 June
2015 that his own past actions have led to the current situation
of
him not exercising access to the minor child. She states
further that both the assessment and the assessment application
therefore became necessary as a direct result of R’s own
behaviour.
[7]
B argues further in this regard that R at no stage proffered reasons
for his refusal to include the confidentiality clause,
notwithstanding that he was requested to do so as early as March
2016. It is only after more than two years that R is acceding
to B’s
request of the inclusion of the confidentiality clause. For her
to achieve this she had to oppose the assessment
application at great
cost.
[8]
The Assessment, she maintains, was fatally flawed in law from
inception, as it was premised on an agreement to agree. R
was
made aware of this fact in May 2016, which was prior to launching the
Assessment Application. Insofar as the assessment
application
is concerned, R has ultimately conceded that the confidentiality
clause is necessary hence the parties draft order
couched in the
manner it is.
[9]
It is trite that the successful litigant is entitled to his/her
costs. R’s total concession as evidence by the draft
order makes one wonder whether there was any need to have refused to
include the confidentiality clause whose objective was to
protect his
own child in the first place. During Argument in court, I
raised R’s refusal to agree to the inclusion
of the
confidentiality clause with his Counsel. The answer was that he
believed that such a clause could prejudice him in
the future but
Counsel stopped short of stating in what way the clause could
possibly have been detrimental to him in the future.
[10]
It is the opinion of this court that the reason behind B’s
persistence that the confidentiality clause be present before
she
could agree to subject both herself and the minor child to an
assessment was sensible and one that was directed at the protection
of what would be in the best interest of the minor child. For R
to have refused to agree for a period of two years and only
concede
at the doorstep of the court should be a reason enough to slam him
with costs of the application. Besides, it is
clear that B
emerged victorious in this application and as such she should not be
deprived of her right to payment of her costs
by R.
[11]
In addition, R has conceded that the need for the launch of the
assessment application was of his own making. If that
is the
case, why should the resultant costs be the responsibility of an
innocent party? R brought these costs upon himself
and must in
the circumstances shoulder them. The
MacCall
and
Ford
cases supra and the other two mentioned in the heads of R’s
Counsel find no application here. They are distinguishable
to
the instant case insofar as they dealt with situations where the
parties genuinely believed that they were acting in the best
interest
of the minor child. While I hold the view that R must pay
costs, I do not believe that a case for punitive costs
has been made.
[12]
I turn now to the travel application. It is apparent that the
process leading to the final termination of the parties’
relationship, like many others of the kind, could not have been easy
and smooth. R is said to have been at all times, without
any
persuasive reasons, either refused to consent to the minor child
travelling abroad, or consented to her travelling abroad
or obtaining
the renewal of her passport, but then acted to frustrate the her
ability to obtain same and/or travel, such that his
consent becomes
meaningless as it is academic.
[13]
The worst of all this is that R sets out no basis for his conduct in
his answering affidavit. This leads B to assume,
correctly so
in my opinion, that he simply wanted to deprive the family
opportunity to travel abroad for vacations. His conduct
was
impelled by malevolence emanating from his separation with B. Faced
with R’s attitude, B found herself compelled to launch
the
Travel Application.
[14]
Like in the case of the assessment application, he waited until the
very last minute only to agree to the relief sought by
B in the
Travel Application, which ought not to have been necessary in the
first place. For those reasons B maintains that
she should be
awarded the costs of this application as well.
[15]
In the absence of any compelling reasons why he conducted himself in
the manner he did, I find myself obliged to accept that
it was indeed
out of spite. He certainly ought not to have gratuitously
refused to grant consent thereby depriving the minor
child of
opportunity to broaden her knowledge and experience of other cultures
in the world. Ordinarily one would have thought
that he might
have been concerned that the minor child would not come back to this
country once taken out. However, this
could not have been the
case because firstly, he does not say so in his affidavit and
secondly, B works and has property in this
country. This of
course would make it difficult for anyone to leave this country
permanently.
[16]
One would be justified to say that it has not stopped many others who
left this country. The point is that he is silent
in his
answering affidavit on why he refused until forced by this
application to give his consent. I do not think that one
can
assume that he believed that he was acting in the best interest of
the minor child. On the contrary, the impression that
one gets
is that his delay was to get back at B. Again, I feel that R must be
visited with a cost order to discourage him from
embarking on any
future gratuitous litigation. All said, I do not think that a
punitive cost order against R is appropriate.
[17]
I make the following order in terms of the Assessment Application:
17.1 B
and R shall subject themselves, together with the minor child to
assessment by a suitably qualified psychologist, social
worker or the
similar (to be nominated by B on or before 30 June 2018), such that a
forensic report as to whether it is in the
minor child’s best
interests that R has contact with her can be prepared by such
psychologist. The psychologist shall be
appointed on terms acceptable
to the parties, including confidentiality, and the parties will share
equally the psychologist’s
cost of preparing the report;
17.2 R
shall withdraw his request to the Family Advocate to conduct an
enquiry and/or take such other action as may be necessary
to cause
the enquiry to not proceed, given that such would be duplicative with
the report to be prepared in the order above;
17.3
Costs of the Assessment Application are to be paid by R.
[18]
I make the following order in terms of the Travel Application:
18.1
R’s rights and responsibilities of guardianship in terms of
section 28 of the Children’s Act, 2005 and specifically
section
18(3)(c)(iii) thereof, requiring his consent to departure and removal
of the minor child from the Republic, be and is hereby
suspended
until such time as the minor child attains the age of majority;
18.2
The requirement in terms of section 28 of the Children’s Act,
2005 and specifically in respect of section 18(3)(c)(iv)
thereof,
requiring the consent of R in any application for a passport for the
minor child, be and is hereby suspended until such
time as the minor
child attains the age of majority, provided that if the Action
Proceedings launched under case number 28039/2015
order that such
rights no longer be suspended, then the suspension shall be lifted;
18.3 Costs of the Travel
Application are to be paid by R.
_______________________________________
BA
MASHILE
Judge
of the High Court of South Africa
Gauteng
Local Division, Johannesburg
APPEARANCES:
For the Applicant: Adv W
Steyn
Instructed by: Keowan Y R
Incorporated
Mount
Edgecombe
For the Respondent: Adv G
Y Benson
Instructed by: Webber
Wentzel Attorneys
Sandton