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[2020] ZAGPJHC 143
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M F v Cummins South Africa (Pty) Ltd and Others (27028/2019) [2020] ZAGPJHC 143 (16 April 2020)
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THE
HIGH COURT OF SOUTH AFRICA, SOUTH GAUTENG
LOCAL
DIVISION, JOHANNESBURG
CASE
NO: 27028/2019
In
the matter between:
M
F
APPLICANT
AND
CUMMINS
SOUTH AFRICA (PTY)LTD
FIRST RESPONDENT
M
T
SECOND RESPONDENT
M
A
THIRD RESPONDENT
DIRECTOR
GENERAL, HOME AFFAIRS
FOURTH RESPONDENT
JUDGMENT.
Molahlehi
J
Introduction
[1]
The dispute in this matter involves the
relocation of a child by the mother, Ms T M to the United States of
America (US) for three
years during which he is to continue with his
studies. The second respondent, Ms M sought the relocation of the
child during July
2019, following her assignment by her employer to
work in the United States of America (US).
[2]
The objection to the relocation is
raised by the boy-child's biological father, Mr M, an advocate of
many years' experience and
a member of the Johannesburg Society of
Advocates.
[3]
At the time the dispute arose, the
boy-child was 15 years and 9 months old. The parents of the child, Mr
M and Ms T M, were never
married to each other and thus their two
children were born out of wedlock.
The
history of litigation
.
[4]
Initially, this matter served before
Wanless AJ as an urgent application. The relief sought by Mr M at the
time was an interdict
against the first respondent Cummins, the
second respondent, Ms T M, the third respondent Ms A M, and the
fourth respondent, the
Director-General, Department of Home Affairs.
[5]
Mr M objected to both children
relocating with their mother and to further their studies in the US.
He objected to A relocating
and insisted that although she was 19
years old and thus a major, she still needed his consent. She joined
her mother in the US
after the dismissal of the interdict and has
registered for a four-year degree course in global and entertainment
studies.
[6]
On 5 August 2019, Wanless AJ granted an
interim order restraining L, the boy-child, from leaving the country
pending a final determination
of the relocation dispute. The first
return date for the determination of the dispute was 29 August 2019,
and after that, the period
was extended on several occasions. The
order further directed the family advocate to prepare a report on the
issue of the relocation
of the child. The application against A and
Cummins were dismissed with costs.
[7]
On 22, November 2019, the Family
Advocate, in compliance with the order of Wanless AJ, issued her
report with recommendations.
Application
for postponement - 2 December 2019
[8]
The matter served before this Court on
the return date, 2 December 2019 and on that day, Mr M unsuccessfully
sought the postponement
of the hearing. The reasons for the dismissal
of the application are dealt with later in this judgment.
[9]
After handing down the ruling dismissing
the application for the postponement, Mr M immediately indicated that
he did not know how
the Court wished to approach the matter because
he had filed a counter application to the counter application of Ms M
the previous
Friday, 29 November 2019. The application was also
served on Cummins. It was however not clear whether the
application was
properly served on Cummins and thus, the Court
adjourned and required the parties to find out if it had received the
application.
The matter stood down to after lunch.
[10]
On my return from lunch, I found both Mr
M and his attorneys Mr. Wakaba at my chambers. They were not with
their colleagues, representing
the respondents and failed to provide
any satisfactory explanation as to why they did not invite their
colleagues to join them.
Application
for postponement- 4 December 2019
[11]
Having
determined that there was a need to find out whether Cummins received
the counter application, the matter stood down to 4
December 2019.
Another application to postponement the case was made by Counsel
acting for Mr M on that day. The reason for the
application was that
Mr M was not well and in support, thereof a medical certificate was
handed in. After accepted the medical
certificate, the matter was
postponed to 11 December 2019, with the
rule
nisi
extended
to the same day.
Reasons
for refusing the application for postponement- 2 December 2019.
[12]
As indicated earlier in this judgment,
Mr M applied for the postponement of the matter on the 2 December
2019. The application was
made from the bar, with no reasons
proffered as to why no substantial application was made.
[13]
Mr M indicated that he needed a
postponement so that he could appoint an expert to contradict the
report of the Family Advocate.
He wanted the case postponed to the
first term in 2020.
[14]
Mr M contended that he was not in a
position to contradict the Family Advocate's report because it was in
the form of "an expert
report" and an expert will according
to him be required to deal with the findings made by the family
advocate. He was concerned
that in the absence of an expert report,
the Court was likely to put more weight to the report of the Family
Advocate.
[15]
He complained that the Family Advocate
had made adverse findings against him, and thus he wished to find an
expert who could "advance
his case." The other issue, he
wanted his expert to investigate was why was it that the child could
not remain behind and
not join her mother in the US because he could
stay with his maternal grandmother who he was staying with at the
time.
The
guidelines on postponement.
[16]
It is trite that in considering an
application for a postponement, the Court has the discretion which is
to be exercised judicially.
It is also trite that a
postponement is not a right but an indulgence given by the Court. It
is for this reason that in seeking
a delay, the applicant must
furnish a full and satisfactory explanation of the circumstances that
gave rise to the need for a postponement.
And as repeatedly
stated by the authorities postponement is not there for the taking.
[17]
An
application for a postponement must be
bona
fide
and
not be used as a stratagem to delay the finalization of a dispute.
In considering an application for postponement,
the Court may
also take into account other factors such as, the prejudice that may
result if the postponement is refused. The tender
to pay costs to be
occasioned by a postponement is a factor to take into account. But
such tender does not necessarily mean that
a postponement would be
automatically granted. The key consideration is whether the dictates
of justice requires that a postponement
should be granted.
[18]
In
Lekolwane v Minister of Justice and Constitutional Development,
[1]
the Court held that:
"The
postponement of a matter set down for hearing on a particular date
cannot be claimed as a right. An applicant for a postponement
seeks
an indulgence from the Court. A postponement will not be granted
unless this Court is satisfied that it is in the interests
of justice
to do so. In this respect, the applicant must ordinarily show that
there is good cause for the postponement. Whether
a postponement will
be granted is therefore in the discretion of the Court. In exercising
that discretion, this Court takes into
account a number of factors,
including (but not limited to) whether the application has been
timeously made, whether the explanation
given by the applicant for
the postponement is full and satisfactory, whether there is prejudice
to any of the parties, whether
the application is opposed and the
broader public interest. All these factors, to the extent
appropriate, together with the prospects
of success on the merits of
the matter, will be weighed by the Court to determine whether it is
in the interests of justice to
grant the application."
[19]
It is important to note that this matter
was enrolled for hearing before this Court following a case
management which was conducted
by Fisher J. After the conclusion of
the case management the Deputy Judge President issued a directive
which required that the
hearing of the matter to be expedited and
scheduled it for hearing in the week of 2 December 2019.
[20]
Mr M contended and insisted during his
submission that the matter was no longer urgent and therefore saw no
reason why the postponement
could not be granted. He criticized the
Family Advocate's report for biased but could not say why he did not
challenge it on the
review. He hinted that there was no basis to
review the report. Another telling aspect in his submission is that
he has the right
to lead evidence to advance his case, and therefore
he was entitled to a postponement. He does not, however, say
why he had
not taken steps at that stage towards that direction.
This submission, in a sense suggests that he had a right to a
postponement.
[21]
In my view, Mr M sought to use
postponement as a tactic to delay the finalizing of the arrangements
for the relocation of the child.
The consequent prejudice was to be
suffered, not by his partner, but by his child who had expressly
indicated to the Family Advocate
that his wishes were to relocate to
the US. It is not clear to me in what way the finding of the Family
Advocate adversely affected
Mr M as he contended. The finding is
based on what the child, who is mature enough to can voice his
preference, told the Family
Advocate. This is a child who is, on his
own version (Mr M) intelligent and is a good performer at school. It
is thus difficult
to see why he would not have had the capacity to
express his own views in relation to the relocation issue.
[22]
On the papers before this Court, I see
no need for expert testimony. I have serious doubt as to what
contribution would such an
expert make about the determination of the
issue of the best interest of the child.
[23]
The purpose of seeking the appointment
of an expert was for no other reason than as stated, by Mr M "to
be given an opportunity
to put an expert who can agree," with
him. That in my view, is a total misconception of the purpose
of calling an expert
to testify.
[24]
In light of the above discussion, there
is no satisfactory explanation of the circumstances that gave rise to
the application for
the postponement of the matter on the day of the
hearing. And more importantly, it seems to me that the attitude of Mr
M was that
the postponement was there the taking.
[25]
It was for the above reasons that the
application to postpone the matter was dismissed.
Application
to postpone immediately following the above ruling
[26]
After making the above ruling, refusing
the postponement of the hearing, Mr M, brought another application
from the bar again seeking
a postponement. The application was
brought when the Court inquired about service of the counter
application on Cummins.
[27]
He suggested that the matter could be
postponed to a date in the ordinary course during the first term of
2020, seemingly to address
the issue of service on Cummins.
[28]
There is, in my view, no doubt that the
application to postpone was unsustainable because it was based on a
defective counter application
filed by Mr M. The application was
defective because it did not comply with the rules. It was an
application not supported by an
affidavit.
[29]
The application was accordingly
dismissed.
Application
to postpone -11 December 2019-
[30]
On 11 December 2019, Mr M briefed
Counsel to move an application for the postponement of the matter on
his behalf. Counsel indicated
that his brief was limited to arguing
for the application to postpone the matter and not to argue the
merits of the dispute.
[31]
The application was based on the ground
that an application for leave to appeal the refusal to postpone the
matter was filed with
the Court. It is clear that the attitude
of Mr M was that Counsel should simply appear in Court and ask for
the postponement
which "would be granted." In other words,
the Counsel had come to Court to "ask for the postponement and
to have
it."
[32]
As indicated earlier, Counsel admitted
that his brief was only limited to moving the application to postpone
the matter. In this
regard and in response to the question as to why
Mr M did not attend Court in case the application was refused,
Counsel informed
the Court that he (Mr M) could not attend the
hearing because he was busy drafting heads of argument in another
matter. He further
indicated that Mr M had instructed him that he
could be available to argue the matter on 20 December 2019.
[33]
The respondents raised as a preliminary
point concerning the issue of the appealability of the ruling
dismissing the application
to postpone the matter on 2 December 2019.
After considering the submissions made by both parties
regarding this point, I
ruled that the leave to appeal would be heard
on that day. Before making this ruling, I inquired from Mr M's
Counsel as to what
prejudice his client would suffer if the
application was heard on that day, in particular, to consider the
preliminary point raised
by the respondents. He indicated that there
would be no prejudice and proceeded to argue
[34]
The reasons for dismissing the
application for leave to appeal are the following: In my view, the
refusal to grant the postponement
of the matter was of no final
effect, not definitive of the rights of the parties and did not
dispose of any part of the relief
claimed in the main application.
Furthermore, I was not persuaded that it would be in the
interest of justice to grant leave
to appeal in the circumstance
where the appeal would cause an unnecessary delay in finalizing the
issue of whether it was in the
best interest of the child to relocate
to the US. Put in another way there was no prospect of success
on appeal. I was also,
considering the facts and the circumstances
and the history of the matter, of the view that this was part of the
stratagem to delay
the finalization of the dispute.
[35]
The issue for determination on the
return day in the main application, in this matter, was whether an
order should be made interdicting
the relocation of the child to the
US. The counter application, on the other hand, sought a relief
to authorize the relocation
of the child.
[36]
The
above reasons are informed by the principles set out in
Zweni
v Minister of Law and Order
,
[2]
and
First
Rand Bank Limited t/a First National Bank v Makaleng
.
[3]
[37]
The
three attributes that need to be considered in determining whether an
interlocutory ruling is appealable as set out in
Zweni
are
the following:
1.
the decision must be final in effect and
not susceptible to alteration by the Court that made it,
2.
it must be definitive of the rights of
the parties and
3.
It must have the effect of disposing of
at least a substantial portion of the relief claimed in the main
proceedings.
[38]
In First Rand Bank Limited (supra) the
Supreme Court of Appeal found that a decision that is of no final
effect or is not definitive
of the rights of the parties may be
appealable where there are other consideration such as the fact that
the appeal would lead
to important consideration such as a speedy
resolution of the issues in dispute between the parties. In addition
to these, the
other general consideration is whether it would be in
the interest of justice to grant leave to appeal the interlocutory
ruling.
[39]
The order made in light of the above was
the following:
1.
The application to postpone the hearing
is dismissed.
2.
The application for leave to appeal is
dismissed with costs on attorney and client scale in case of the
first respondent.
3.
The respondent shall pay costs on the
party and party scale for the second respondent.
4.
The matter stands down for the following
day 12. December 2019.
[40]
Following the above order, the matter
was set down for hearing on 12 December 2019. On that day Mr M
contended that the matter
should stand down pending the outcome of
the petition he made to the President of the Supreme Court of Appeal
without disclosing
for which order he had petitioned.
[41]
Section 18 of the Superior Court of 2013
provides:-
"18
Suspension of decision pending appeal:-
(1)
Subject to subsections (2) and (3), and
unless the Court under exceptional circumstances orders otherwise,
the operation and execution
of a decision which is the subject of an
application for leave to appeal or of an appeal, is suspended pending
the decision of
the application or appeal.
(2)
Subject to subsection (3), unless the
Court under exceptional circumstances orders otherwise, the operation
and execution of a decision
that is an interlocutory order not having
the effect of a final judgment, which is the subject of an
application for leave to appeal
or of an appeal, is not suspended
pending the decision of the application or appeal.
(3)
A court may only order otherwise as
contemplated in subsection (1) or (2), if the party who applied to
the Court to order otherwise,
in addition proves on a balance of
probabilities that he or she will suffer irreparable harm if the
Court does not so order and
that the other party will not suffer
irreparable harm if the Court so orders.
(4)
If a court orders otherwise, as
contemplated in subsection (1)-
(i)
the Court must immediately record its
reasons for doing so;
(ii)
the aggrieved party has an automatic
right of appeal to the next highest Court;
(iii)
the court hearing such an appeal must
deal with it as a matter of extreme urgency; and
(iv)
such order will be automatically
suspended, pending the outcome of such appeal.
(5)
For the purposes of subsections (1) and
(2), a decision becomes the subject of an application for leave to
appeal or of an appeal,
as soon as an application for leave to appeal
or a notice of appeal is lodged with the registrar in terms of the
rules."
[42]
The ruling not to suspend the decision
of this Court pending the petition filed by Mr M was informed by the
consideration that since
the granting of the order in the urgent
application the proceedings have become a sham and an abuse of the
court process. The abuse
materially undermined the interest of the
child. Mr M approached the matter with minimal, if at all, any
objectivity. This
in my view created exceptional circumstances
warranting refusal to suspend the implementation of the decision
pending the outcome
of the petition. It was for this reason
that I proceeded to consider the merits of the dispute. It should be
noted that after
making this ruling, Mr M withdrew from participating
in the proceedings and made no submission in relation to the merits
of the
matter.
The
merits
[43]
It
is trite that in terms of section 10 of the Children's Act (the
Act),
[4]
children have a right
to participate in matters affecting them. It follows thus that
due consideration has to be given to
the views expressed by children
on matters affecting them.
[5]
Of course, the view of a child has to be weighed, taking into
account his or her age, maturity and the stage of development.
[6]
It is also trite that the overriding consideration is the notion of
the best interest of the child.
[7]
[44]
In my view, considering the objections
raised by Mr M, in their totality, they are unsustainable and
inconsiderate of the children
interest. He amongst others
contend that it is only the mother who is advantaged by the
deployment to the US, whereas for
the children it is, "a
disaster." He is also concerned that the deployment is for
a very short period, and there
is no guarantee that the employer
could terminate the employment contract of the mother before the
expiry of the deployment.
[45]
It is clear from the papers that the
mother had in accepting the offer from the employer to work in the US
carefully considered
moving the child from his country of birth and
whether the relocation would be in his interest. She had researched,
made inquiries
and finally secured the schooling for the child. The
financial implication of the education of the child once relocated
also received
proper attention in my view.
[46]
The contribution by her employer goes a
long way in securing the child's education, and she will also be
earning a salary with which
she would be able to cater to his needs.
[47]
The mother's view that it would be in
the interest of the child is supported by the findings and
recommendations of the Family Advocate.
The finding is essentially
based on the review and the desire of the child to join her mother
and her sister in the US. The child
does not only have the aspiration
to be in the US but also has clear plans as to what he would like to
do once he is there. Put
in another way; the child has voiced his
wishes of joining her mother and her sister in clear and unequivocal
terms. The child
was at the time of the institution of the urgent
application almost sixteen years old. There is in my view, no reasons
to doubt
his voice, as expressed in the report of the Family
Advocate's report, as being genuine and expressed with confidence.
[48]
It is common cause if not that it has
not been disputed that the caregiver of the child was the mother.
Although the father
has a good relationship with the child, the
fact that the mother is the caregiver gives considerable weight in
the determination
of whether the relocation of the child should be
authorized. It is important to note that the evidence before this
Court which
has not been disputed is that since the departure of the
mother, Mr M has seen the child on only three occasions and for a
very
short period.
[49]
In
considering the above, I find that it was in the best interest of the
child to relocate and join his mother and his sister in
the US.
Accordingly, the applicant's application must fail, and
the
rule
nisi
discharged.
The second applicant's application stands to succeed.
[50]
Concerning the case against Cummins, it
is quite clear the proceedings as instituted against them was
ill-conceived. There are no
merits as to why Mr. M had in substance
instituted proceedings which are no different to those dismissed by
Wanless AJ in the urgent
application. In any case, he had
failed to show on what basis he was entitled to interfere with the
employer-employee relationship
between the mother and her employer.
Order
1.
The
rule
nisi
granted
on 5 August 2019 is discharged.
2.
The main application is dismissed.
3.
The applicant's counter application to
the Second Respondent's counter application is dismissed.
4.
The second respondent is granted leave
to remove the minor child, L M (the minor child) temporarily for a
period of three years,
from the Republic of South Africa to Columbus,
Indiana, United States of America.
5.
The consent of the applicant for the
minor child to be removed from the Republic of South Africa, shall
not be required in terms
of section 18 (5) read together with
section
18
(3) (c) (iii) of the
Children's Act 38 of 2005
.
6.
The applicant shall be afforded the
following contact with the minor child:
6.1.1
Daily telephonic and Skype contact at reasonable times since:
6.1.2
The Applicant shall have at least one visit per annum with the minor
child in South Africa, and at all reasonable times in
the United
States of America, by prior arrangement between the parties.
7
The applicant shall pay the Second Respondent's costs of the main
application, the applicant's counter-application and the Second
Respondent's conditional counter application, on an attorney and
client scale.
7
The applicant shall pay the First
Respondent's costs in respect of the applicant's counter-application
to the Second Respondent's
counter-application and the applicant's
application for leave to appeal argued on 11 December 2019, including
the costs of 4 December
2019 and 12 December 2019 on the attorney and
client scale.
E
Molahlehi
Judge
of the High Court;
Johannesburg
Representation:
For
the Applicant: In person
For
the First Respondent: Adv Feinstein
For
the Second Respondent: Adv Bezuidenhout
Date
of the reasons: 16 April 2020
[1]
[2006] ZACC 19
;
2007
(3) BCLR 280
(CC) at paragraph
[17]
.
[2]
1993
(1) SA 523 (A).
[3]
[2016]
ZASCA 169
para 15.
[4]
Act
35
of 2005.
[5]
See
section 31(1) of the Children’s Act.
[6]
See
section 7 (1) (g) of the Children’s Act.
[7]
See
section 28 of the Constitution.
[8]