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[2020] ZAGPJHC 329
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Grimaudo v Dinwoodie (28072/2016) [2020] ZAGPJHC 329 (4 December 2020)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
LOCAL DIVISION,JOHANNESBURG)
Case
number: 28072/2016
Date of
hearing: 24 October 2020
Date
delivered: 4 December 2020
In
the matter between:
GRIMAUDO,
BENITO
Applicant
and
DINWOODIE, TARYN
LEE
Respondent
JUDGMENT
SWANEPOEL AJ:
[1]
This is an application for leave to appeal against my judgment dated
26 March 2020, in
which I dismissed the applicant’s urgent
application with costs, including costs of senior counsel. This
application is unopposed.
I heard the application virtually, whilst
sitting as acting judge in the Gauteng Division.
[2]
The facts of the application are a matter of record, but may briefly
be summed up
as follows:
[2.1]
The parties are the biological parents of a minor child, a boy aged 5
years. The parties
are the holders of joint parental rights and
responsibilities in respect of the minor child. Applicant has
specific rights of contact
arising from orders granted by Goedhardt
AJ on 9 October and 2 November 2018 respectively.
[2.2]
Applicant was due to have contact with the minor child from 14h00 on
Wednesday 25 March
2020 until 08h00 on Friday 27 March 2020.
[2.3]
On 18 March 2020, whilst the country was in the early phases of the
Covid-19 pandemic,
the Minister of Cooperative Governance and
Traditional Affairs published regulations in terms of the
Disaster
Management Act, 2002
. The regulations implemented a complete lockdown
(save for certain essential services) with effect from midnight on 26
March 2020
until 16 April 2020. Movement between residences was
prohibited for non-essential persons, which had the effect of also
prohibiting
the movement of children between separated parents.
[2.4]
When applicant tried to collect his son on 25 March 2020 respondent
was nowhere to be
found. She refused to allow the child to go to the
applicant, citing the pending lockdown as a reason for her refusal.
All attempts
to find respondent were fruitless.
[3]
It was in the aforesaid circumstances that applicant launched an
urgent application
on less than two hours’ notice, seeking
essentially the following relief:
[3.1]
That respondent be ordered to hand over the child to respondent for
purposes of exercising
contact in accordance with the Goedhardt AJ
orders;
[3.2]
A direction that for the period of the lockdown the parties must
comply with the provisions
of the Goedhardt AJ orders.
[4]
I dismissed the application with costs, including the costs of senior
counsel, and
I gave reasons subsequently.
[5]
In this application, the following grounds of appeal are raised (I
paraphrase):
[5.1]
That I misdirected myself as to the best interests of the
minor child;
[5.2]
That I did not have proper regard to the fact that applicant was
entitled to contact in
terms of the Goedhardt AJ order;
[5.3]
Respondent had again made a unilateral decision without proper
consultation and had willfully,
unreasonably and contemptuously
denied applicant the exercise of his rights;
[5.4]
Respondent was withholding the child from applicant until 16 April
2020 without a proper
basis;
[5.5]
The bond between applicant and the minor child was being prejudiced
by respondent’s
conduct, and I had no regard thereto;
[5.6]
I failed to have regard to respondent’s obstructive conduct;
[5.5]
The lockdown regulations would only come into operation at midnight
on 26 March 2020,
a fact to which I had no regard;
[5.6]
The respondent was allowed to “reap the rewards” of
acting contrary to the
Goedhardt AJ orders.
[6]
At the outset I must agree with applicant that respondent no doubt
used the lockdown
as an excuse to prevent applicant from exercising
his contact rights on 25 and 26 March 2020. However, when this
application came
before me on the morning of 26 March 2020 the
country was faced with a lockdown which would take effect some 13
hours later.
[7]
Had the minor child been in respondent’s care at midnight on 26
March 2020,
he would have been unable to return the child to the
respondent’s care. The lockdown regulations made it an offence
to travel
in breach of the regulations, and had I granted applicant’s
order, he would either have had to keep the child in his care
until
16 April 2020, or he would have exposed himself to criminal
prosecution.
[8]
It was clearly untenable for me to grant an order that the contact
provisions of the
Goedhardt AJ order should continue during the
lockdown. It would be improper for a Court to sanction, or attempt to
sanction, criminal
behaviour.
[9]
It would also not have been proper to make an order that the child
should remain with
respondent for the duration of the lockdown, as
counsel for applicant, Ms. Rosenburg SC argued before me. Firstly,
applicant did
not seek such an order. He simply sought an order that
the contact arrangements should continue notwithstanding that he knew
that
there was a prohibition against travelling between parents’
homes during the lockdown.
[10]
Secondly, I took into account that respondent was the primary
caregiver, and that the child was
still of a relatively tender age.
It was, in my view, more appropriate for the child to be with the
primary caregiver during the
lockdown.
[11]
The dire situation in which the country found itself required many
sacrifices and accommodations
to be made. Unfortunately, a brief
break in physical contact between the applicant and his son was one
of them.
[12]
A further aspect that I must have regard to is that the relief sought
has become academic. The
only effect that an appeal might have is in
respect of costs. Ms. Rosenburg also submitted that it was
inappropriate to grant costs
against applicant, more specifically,
the costs of senior counsel.
[13]
I note that in the previous matters the applicant had been
represented by senior counsel, as
he was in this application. The
matter is obviously great importance to applicant as it was to
respondent. I cannot see why she
should not be entitled to brief
senior counsel, especially given the unusual circumstances in the
case.
[14]
Furthermore, I take into account that applicant sought to enforce
contact for a period of some
two days against the backdrop of a dire
health crisis, and launching his application on the utmost urgency,
giving respondent less
than two hours’ notice. The order that
he sought for further contact during the lockdown was simply ill
advised, and would
have resulted in the Covid-19 regulations being
simply ignored. I believe that it was appropriate to grant costs
against applicant.
[15]
Section 17
of the
Superior
Courts Act, 2013
enjoins me only to grant leave to appeal should I
believe that the appeal would have a reasonable prospect of success,
or should
there be another compelling reason why the appeal should be
heard. In my view, there is no prospect of success on appeal. Ms.
Rosenburg
argued that there were public interests at stake in the
matter. I disagree.
[16]
Consequently, I make the following order:
[16]
The appeal is dismissed.
C
SWANEPOEL
ACTING JUDGE OF THE HIGH COURT
OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
(Electronically submitted
therefore unsigned)
Delivered: This judgement
was prepared and authored by the Acting Judge whose name is reflected
and is handed down electronically
by circulation to the Parties/their
legal representatives by email and by uploading it to the electronic
file of this matter on
CaseLines. The date for hand-down is deemed to
be 4 December 2020.
Applicants’
counsel:
Adv. R Rosenburg SC
Applicant’s
attorneys:
Cuthbertson & Palmeira Attorneys Inc.