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[2019] ZAGPJHC 223
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AM v NM (23365/2013) [2019] ZAGPJHC 223 (4 July 2019)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA,
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE
NO:
23365/2013
In the matter
between:
A
M
Applicant
and
N
M
Respondent
JUDGMENT
MIA, AJ
[1] The
applicant brought an application on an urgent basis for the following
relief:
“
1.
That this matter be heard as one of urgency, and that the time
limits, forms and service provided for in the Rules of Court,
be
dispensed with in terms of the provisions of Rule 6(12);
2.
Declaring that the Respondent is in contempt of the court order
handed down by the above Honorable Court on 29 January
2015 by the
Honourable Justice Borochowitz, under case number 23365/2013 (divorce
order), a copies of which are annexed as “
AM1”
and
“
AM2” to the founding affidavit attached to this
Notice of Motion;
3.
Directing the Respondent to sign the Department of Home Affairs
parental consent affidavit for Connor’s travel to Spain
and
France during August 2019, which document was provided to
Respondent’s attorney by email on 28 May 2019, by no later
then
15h00 on the day succeeding the date on which this order is granted;
4.
Directing Respondent, through his attorney of record or otherwise, to
inform Applicant when the signed consent affidavit is available
for
collection by Applicant from the Respondent’s attorneys’
offices;
5.
Directing Applicant to email a copy of the draft order to
Respondent’s attorney as soon as is practically possible after
the granting of this court order;
6.
Failing compliance with paragraphs 3 and 4 above, committing the
Respondent for imprisonment for a period of 90 days or for
such other
time period as the court may deem appropriate;
7.
Ordering the Respondent to pay Applicant’s costs of this
application on the punitive scale as between attorney and client.”
[2]
The matter was opposed. It was apparent from the answering
affidavit
[1]
at various paragraphs that the Respondent did not oppose the
Applicant travelling to Europe with the minor child. In view of the
Respondent indicating in the answering affidavit that there was no
objection to the consent affidavit being signed, the matter
stood
down to afford the parties an opportunity to attend to the signing of
the affidavit before further argument was heard on
the matter on the
issue of contempt. It followed that the issues above fell away and
the only remaining issue was the issue of
costs.
[3]
Mr Davel, appearing for the Applicant, argued that the matter did not
strictly relate to a child but related to the Respondent’s
contempt of a court order and that this was the consideration to be
borne in mind when determining the costs applicable. He submitted
that the Respondent was wilfully in contempt of the court order of
Borochowitz J. Further, despite the Applicant’s attempt
to
negotiate through her attorney to secure the signed consent affidavit
to travel to Spain in August, the Respondent refused
to sign
the consent to travel, unless the Applicant signed a blank consent
affidavit to enable the Respondent to travel in December
which he
submitted was not possible or permissible.
[4]
He argued that it was necessary for the Applicant to approach this
Court on an urgent basis as the time periods to apply for
a visa were
close to the period of travel and she required adequate time to apply
for a visa application to be processed. He argued
that the settlement
agreement provided that the parties mediate save in the event of
urgency and the present circumstances had
becomes urgent in view of
the time frames required to apply for a visa. The applicant was thus
not obliged to mediate first and
then approach this court as it would
comprise the securing of the visa and prejudice her travel plans
which had been paid for.
[5]
Ms
Theodorellis,
appearing for the Respondent submitted that the Applicant failed to
make out a case for urgency. She argued that the
matter could easily
be dealt with on 2 July 2019 after proper compliance with court
procedures to allow the matter to be heard
in the normal course. This
would have afforded the Applicant 10 days to seek an appointment and
25 days thereafter for the approval
of the visa after the date of the
appointment and still allow the Applicant to leave by 9 August 2019.
[6]
She argued further that the Applicant was obliged to refer the matter
to mediation before approaching this court on an urgent
basis. This
she submitted was
a
less costly and useful way of resolving the parties problems and was
preferred by the courts.
[2]
If the Respondent refused to sign the consent affidavit after
mediation failed the Applicant was then entitled to bring the matter
before a court to compel him to sign same.
[7]
Moreover, she argued that the Respondent did not object to signing
the consent affidavit which was already signed and
was available for
collection by the Applicant at her convenience. The Respondent only
sought to ensure that he was not prevented
from travelling with the
minor child internationally later in the year and requested the
Applicant to sign a similar consent affidavit
and to furnish this to
his attorney before he released the one the Applicant requested.
[8]
The question of contempt was no longer in issue, however the
Applicant did have to come to court to ensure the consent affidavit
was released. I do not agree with Ms
Theodorellis’
submission that there would have been sufficient time to apply for
the visa and attend the appointment if the
normal route was followed
by mediating the matter then coming to court and complying with the
request for a visa approximately
35 days before date of departure
when the flights were booked in May 2019. The request that the
Applicant sign a consent affidavit
where the dates were not inserted
is absurd and her refusal is understandable. The request was
premature and the signing of her
consent affidavit should not have
been withheld based on her signing a similar undated consent
affidavit. In the circumstances
the Applicant was compelled to
approach the court for relief. In the circumstances the costs
should follow the cause.
ORDER
[9] For the reasons above the
respondent is ordered to pay the Applicants costs on a party and
party scale
_________________________________________________
S C MIA
ACTING JUDGE OF THE
HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
Appearances:
On behalf of the applicant
: Adv W Davel
Instructed
by
: Sian Richardson Attorney
On behalf of the respondent
: Adv D Theodorellis
Instructed
by
: Tilney Attorneys
Dates of
hearing
: 25 June 2019
Date of
judgment
: 4 July 2019
[1]
Answering
affidavit, p64, para 2.1; p70, para 10.1;p71,para 13
[2]
MB v NB
2010(3) SA 220 (GSJ) para 52-59