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[2019] ZAGPJHC 514
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G B v M B (037761/19) [2019] ZAGPJHC 514 (3 December 2019)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION,
Case no: 037761/19
I
n
the matter between:
B:
G
Applicant
and
B:
M
Respondent
JUDGMENT
MOLAHLEHI.
J
Introduction
[1]
This matter which was brought
on the urgent basis concerns the relocation of the parties’ two
children who are 12 and 16 years
old. The Applicant, the father seeks
to have the children permanently relocated from South Africa to the
Netherlands. The two parties
are divorcees, and they currently share
the residency of the children equally.
[2]
The intended time of departure
from South Africa to the Netherlands is 27, December 2019. If
successful in this application, it
means that the primary residence
of the children shall be with the Applicant with the Respondent
having reasonable contact with
them.
[3]
The Applicant asserts that from
July to October 2019, the Respondent, in principle, agreed to the
children's relocation to the Netherlands.
The children would leave
South Africa at the end of December 2019, for them to commence
schooling in January 2020.
[4]
The parties agreed to engage
the services of an independent psychologist to assess the views and
wishes of the children concerning
relocation. The parties also agreed
that the children would have to attend Dutch classes before leaving
South Africa.
[5]
The Respondent changed her view
about the children leaving South Africa permanently to go and stay in
the Netherlands. Her belief
is that the children should go to the
Netherlands for six months and come back to South Africa for an
assessment as to how they
would have coped during the stay for that
period.
[6]
It is common cause that the
Applicant advised the Applicant about her changed view on 3 October
2019. She changed her view despite
the findings of the psychologist,
Ms Johnson that it was in the best interest of the children to
relocate to the Netherlands.
[7]
The Applicant has since July
2019, made all the arrangements necessary for the travelling and
accommodation of the children, including
their schooling once they
arrive in the Netherlands.
[8]
The Applicant decided to move
to the Netherlands after obtaining employment in that country. He is
moving with his fiancée
and her three children from a previous
relationship.
[9]
In the founding affidavit, the
Applicant proposed various ways in which the Respondent would be able
to contact the children once
they have left the country. This
includes the Applicant having to pay for a flight ticket once a year
for the Respondent to visit
the children. The Applicant further
narrates various attempts to reach reaching consensus about how the
Respondent could have contact
with the children.
[10]
According to the Applicant, the
reasons for bringing this matter on the urgent basis was because he
had a "volte face"
when he was advised on 3 October 2019
that the Respondent was no longer consenting to the location of the
children. In paragraph
13 of the founding affidavit he states,
amongst other things, that the reasons for urgency are the following:
"13 The
matter has become urgent because, to the Respondent's knowledge, I
received a job offer from Rabobank in Ultrecht,
Netherlands, and I am
to commence my employment on 1 November 2019.
13.1.
My home in Robindale has been sold, and the moving company is packing
up the contents thereof [which includes the children's
possessions)
for shipping to the Netherlands.
13.2
I am to travel to the Netherlands on
Sunday, 27, October 2019.
13.3
To ensure the children's enrolment at their new school in Gauda, I
must have clarity, if not from the Respondent herself, from
this
Court that the children may relocate to the Netherlands.
13.4
M who has accepted a position with Expirian in Den Haag, will also be
relocating with her three daughters to the Netherlands
in December
2019. M's relocation is on the basis of an independent visa and not
interrelated or as an adjunct to my visa.
13.5
Unless I have clarity on whether or not the children will be
relocating to the Netherlands with me, M and I will be unsure
of
which home would be suitable for our reconstituted family – one
that can accommodate 7 or 5."
Urgency
[11]
This being an urgent
application, the starting point, before dealing with the substantive
issues, is to determine whether the requirements
of urgency have been
satisfied. Put in another way, the first issue to determine before
dealing with the merits is to determine
whether the Applicant has
made out a case for urgency.
[12]
The
approach to adopt in determining urgency was set out in In
re:
Several Matters on the Urgent Court Roll,
2013
1 SA 549
;
[2012] 4 All SA 570
where
the court referred
with
approval to
East
Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty) Ltd
and Others
[2012]
JOL 28244
(GSJ)
at paras 6-7 where it was held that:
“
[6]
The import thereof is that the procedure set out in rule 6(12) is not
there for taking. An applicant has to set forth explicitly
the
circumstances which he avers render the matter urgent. More
importantly, the Applicant must state the reasons why he claims
that
he cannot be afforded substantial redress at a hearing in due course.
The question of whether a matter is sufficiently urgent
to be
enrolled and heard as an urgent application is underpinned by the
issue of absence of substantial redress in an application
in due
course. The rules allow the court to come to the assistance of a
litigant because if the latter were to wait for the normal
course
laid down by the rules it will not obtain substantial redress.
[7] It is
important to note that the rules require absence of substantial
redress. This is not equivalent to the irreparable harm
that is
required before the granting of an interim relief. It is something
less. He may still obtain redress in an application
in due course but
it may not be substantial. Whether an applicant will not be able to
obtain substantial redress in an application
in due course will be
determined by the facts of each case. An applicant must make out his
case in that regard."'
[13]
The Respondents' counsel
submitted that the urgency in this matter was self-created by the
Applicant knew about the position of
the Respondent on 3 October
2019. He did nothing until November 2019 when he launched this
application. There is no explanation
as to why the Applicant could
not have brought the application earlier. He also did not explain the
urgency of relocating on 27
December 2019. The only point made by the
Applicant is that he found employment in the Netherlands. There is no
explanation as
to what circumstances made him relocate so hastily
except that he the job in the Netherlands.
[14]
The Applicant does not indicate
in his papers what harm or prejudice the children will suffer if they
were to relocate at a later
stage. Put in another way, there is no
indication in the documents what harm or prejudice the children would
suffer if the application
was to be heard in the normal course.
[15]
In light of the above
discussion, I find that the Applicant has failed to make out a case
for urgency and for that reason his application
stands to fail.
Order
[16]
In the circumstances, I make
the following order:
1.
The application is struck off
the roll for lack of urgency.
2.
The Applicant is to pay costs
of the application.
__________________
E
Molahlehi
Judge
of the High Court; Johannesburg
Representation:
For
the Applicant: Adv Sarita Liebenberg
Instructed
by: Van Lille Attorneys
For
the Respondent: Adv Shawn Swiegers S
Instructed by: Van
Jonson Attorneys
Heard:
Delivered:
03 December 2019