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[2021] ZAGPJHC 618
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E.M.A v Y.M.N (12300/2020) [2021] ZAGPJHC 618 (10 February 2021)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA,
GAUTENG
DIVISION, JOHANNESBURG
CASE
NO: 12300/2020
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED.
DATE: 10 February 2021
In
the matter between:
N[....]2
:
E[....]
M[....]
Applicant
and
M[....]
:
Y[....]
N[....]2
First Respondent
M[....]:
D[....] L[....]2
S[....]
Second Respondent
WESTMINSTER
CITY COUNCIL CHILDREN AND
FAMILY
SERVICES, UNITED KINGDOM
Third Respondent
In
re the minor child L[....] N[....] B[....]
JUDGMENT
ROME,
AJ:
Introduction
1.
This matter concerns the
hoped for rehabilitation of the relationship between a
mother and her
twelve-year-old son.
2.
Most of the issues
pertaining to that rehabilitation and specifically the process
to be followed to facilitate
it are now common cause. Nevertheless, there are certain aspects of
that process which remain in dispute.
Parties
and Background
3.
The basic facts are
the following.
4.
The applicant,
E[....] M[....] N[....]2 is a 43-year-old businesswoman
residing both in Zambia and
the United Kingdom (she states that she splits her time between the
two respective homes in Zambia and
in the United Kingdom.
5.
The applicant is the
mother of four children. Two of these children are minors
aged 4 and 1½ years
old respectively. The father of these two minor children is the
applicant’s husband, Alexander
Brdar (“Alex”). The
applicant has been married to Alex for approximately 3½ years.
The applicant’s eldest
child is a major female of 25 years of
age.
6.
This matter concerns
the applicant’s relationship with her second eldest child
N[....] B[....] (“L[....]”).
L[....] is a 13-year-old boy who was born during August 2007 in
London. L[....]’s
father, one Steven Jeffrey B[....] passed
away during 2009. L[....] lives in South Africa. His residence in the
Republic is as
a result of the circumstances dealt with further
below.
7.
The first respondent is
Y[....] N[....]2 M[....]. The first respondent
is
the applicant’s younger sister.
8.
The second respondent is
D[....] L[....]2 S[....] M[....]. The
second
respondent is the husband of the first respondent (and hence the
applicant’s brother-in-law).
9.
L[....] resides with the
first and second respondent at a residence situated in
Roodepoort, together their
two minor children .
10.
The third respondent is Westminster City Council Children and Family
Services United Kingdom
(“Westminster Family Services”).
They are cited as a respondent in this matter because they appear to
have been instrumental
in procuring a Special Guardianship Order in
terms of section 14 of the Children Act 1989 in the United Kingdom.
Pursuant to this
order guardianship of L[....] has been given over to
the first and second respondents. For convenience the term “the
respondents”
as used hereafter refers to the first and second
respondents and not to the third respondent.
11.
On 10 December 2013, this Court (per Moshidi J) granted an order
declaring that the UK Special
Guardianship order was recognised and
accordingly that the first and second respondents have been appointed
as the special guardians
of L[....].
12.
The UK Special Guardianship Order (and the mirror order of Moshidi J)
regulates the applicant’s
rights to have regular contact with
L[....]. It authorises the respondents to remove L[....] from the
Republic of South Africa
for temporary periods of time in order to
travel to the United Kingdom in order to facilitate his contact with
the applicant and
his extended family.
13.
Sadly, the contact between the applicant and L[....] post 2013 did
not take place in the
manner that might have ideally been envisaged
by the Special Guardianship Order. I do not need to deal in any
detail with the reasons
for the breakdown of that process, save to
note that regular visitations, as envisioned by the order, did not
occur as between
the applicant and L[....].
14.
Accordingly by August 2018 the applicant through her attorneys was
proposing therapy in
order to facilitate the resumption of regular
and meaningful contact between the applicant and L[....].
15.
By November 2018 the parties then discussed the possibility of an
investigation by a clinical
psychologist in order to prepare a report providing guidance as to
what sort of process should be followed
in order for the relationship
between applicant and L[....] to be rehabilitated.
16.
The commencing of the psychological investigation was then somewhat
delayed. Nevertheless
by May 2019 the parties were in agreement that
one Nellie Prinsloo (“Prinsloo”), a Clinical Psychologist
should meet
with all relevant parties, including the applicant,
L[....] and the respondents and prepare a comprehensive clinical
psychological
report (“the Prinsloo Report”) as to how
the process of restoring a relationship between the applicant and
L[....]
could proceed.
17.
Prinsloo published her report on 14 May 2019. By June 2019 the
applicant had confirmed that
she would abide by Prinsloo’s
recommendations and communicated this fact to the Respondents.
18.
The implementation of Prinsloo’s recommendations and hence the
process of renewed
contact between the applicant and L[....] then
once again stalled. During December 2019, the applicant’s
attorneys communicated
with the first and second respondent’s
attorneys and told them the applicant was seeking the implementation
of the Prinsloo
Report. The process of implementing the
recommendations in the Prinsloo Report then once again stalled. This
appears to have been
partly as result of the fact that in January
2020 the respondents’ attorneys of record had at that time
withdrawn as their
attorneys. At that stage neither the respondents’
attorneys, nor the respondents themselves had responded to the
applicant’s
requests to implement the recommendations of the
Prinsloo Report and for renewed physical contact between herself and
L[....].
19.
By June 2020, the applicant having had no further confirmation as to
the implementation
of the Prinsloo Report and not having received a
direct substantive response to her request for resumption of physical
contact
with L[....], launched this application. (the notice of
motion is dated 26 May but service appears to have occurred some time
later
and in June 2020)
20.
The application is per the Notice of Motion divided into two parts.
21.
Part A of the Notice of Motion contains prayers for the following
relief. These paraphrase the relevant section
of the Report.
21.1.
That the applicant be entitled to exercise contact with
L[....] in
accordance with the Prinsloo
Report, and the recommendations contained in paragraph 25 of the
Report.
21.2.
That the applicant and the respondents would jointly appoint
a case
manager in order to assist
them with any issues that may arise in respect of the contact
arrangements and so as to ensure that L[....]’s
best interests
remain paramount throughout.
21.3.
that the costs of the case manager be borne equally between
the
applicant and the
respondents.
21.4.
Part A of the Notice of Motion then provides for the process
of
contact
between
the applicant and L[....] for a first period of two months and a
second period of a subsequent two months. Thereafter the
notice
provides that after further periods of increasing contact and after a
seven month period
the applicant and L[....] would consult with Prinsloo so that she
could make further specific recommendations
to the Court as to
L[....]’s best interests, further continued contact between the
applicant and L[....] and as to the place
of L[....]’s future
primary place of residence.
22.
Part B of the Notice of Motion provides for application to be made at
a future date at which
the applicant would seek the following further
orders:
22.1.
That the further
recommendations made by Prinsloo would be made
an
order of Court.
22.2.
That the order of
Moshidi J would be set aside.
22.3.
That the applicant
would be declared to be the sole holder of full
parental responsibilities
and rights in respect of L[....] as provided for in sections 18(1)
and 18(2) of the Children’s Act,
38 of 2005.
23.
Since part B of the Notice of Motion envisages the ultimate setting
aside of the order of
Moshidi, J (and hence the effective setting
aside of the UK Guardianship Order) the Westminster Family Services
Department were
served with this application by way of edictal
citation. No relief was however sought against the Westminster Family
Services Department
and they have not entered an appearance to defend
nor have they sought to oppose the relief sought by the applicant.
24.
The papers in the application are voluminous. The founding affidavit
alone sans annexures
amounts to some pages 95 and with annexures to
some 460 pages and the answering affidavit with annexures amounts to
some 175 pages.
Much of the founding affidavit deals with the
background to the UK Special Guardianship Order and the applicant’s
difficult
personal circumstances which resulted in the granting of
that order. The founding affidavit then goes on to set out, with
supporting
evidence, the applicant’s progress in rehabilitating
her personal life and her path to becoming a responsible citizen and
mother. The affidavit contains the applicant’s allegations of
instances where the access envisioned in the UK Special Guardianship
Order did not proceed as envisioned and of how she had lost
meaningful contact with L[....]. She alleges that the blame for not
facilitating proper access, lies with the respondents and that to an
extent she feels betrayed by them.
25.
Unfortunately, the answering affidavit deals in comprehensive detail
with the attempt to
rebut these allegations. I use the appellation
“unfortunate” because there is, in this matter, an agreed
report of
a professional appointed by both parties, which sets out
the process of rehabilitation that is to be embarked upon. At this
stage
the Court hearing this application is only considering
processes to be followed in the rehabilitation of the relationship
between
the applicant and L[....] and is in no way presently required
to assess the ultimate issue of guardianship and the setting aside
of
the Special Guardianship Order.
26.
Much of the detail in the parties’ respective affidavits was,
in any event
rendered
irrelevant by the fact that by the time Part A of the application was
set down for argument the issues for adjudication
at this hearing
were winnowed down.
Issues
27.
As the parties have indicated in their joint Practice Note dated 18
January 2021, there
were a maximum of three issues in dispute.
27.1.
Whether the cost of the Case Manager, referred to in Part A of the
Notice of Motion, are to be jointly borne by the parties,
or should
be borne solely by the applicant;
27.2.
Whether the respondents are liable for of the costs of this
application or whether the applicant should bear the costs of
the
application.
27.3.
The respondents indicated that there is a further issue in dispute
with regard to the precise wording of the order to be granted
under
Part A of the Notice of Motion and their disagreement that the
applicant’s draft order in all respects accurately accorded
with the wording of the Prinsloo report.
28.
Given the narrowness of the issues when contrasted with the wide
breadth of the record,
it is a pity that the parties were not able to
reach further agreement directing this Court as to what sections of
the record did
not need to be read. I deal now with the above three
issues.
Costs
of the Case Manager
29.
As to the costs of the Case Manager, this Court is mindful of the
fact that we are dealing
with the best interests of a minor child. It
is axiomatically in the best interests of the minor child that the
best, efficient
and professional process and best practices be
followed to achieve the desired outcome of a rehabilitation of the
relationship
between L[....] and his mother.
30.
The Prinsloo Report, accordingly, after stating that “
both
mother and son has [sic] expressed a need to have more contact and
there is no longer a need to keep L[....] from having more
regular
contact with his mother
”
recommends in the
very next paragraph of the report that a Case Manager must be
appointed.
31.
I emphasise the fact that the parties are respectively a minor
child’s biological
mother and his aunt and uncle in their
capacity as his court appointed Special Guardians. In principle each
should be promoting
the best interests of L[....] and seeking to
ensure that the recommendations of their joint expert be implemented
as far as possible.
For this reason, it is desirable that each of the
parties be responsible for the costs of the Case Manager.
32.
In argument, the respondents contended that one of the reasons why
they should not be required to contribute to the costs of
the Case
Manager is that “
there
is no reason why the respondents are to be punished when they have
taken care of and raised the child on their own, to the
exclusion of
any assistance from the applicant, for the past seven years
”
.
33.
This contention is not persuasive and is somewhat misguided. It is
not a question of punishment which is in issue, rather it
is the
principle that both parties should be interested in ensuring the
promotion of L[....]’s best interests.
34.
The respondents also contend that their
financial circumstances are such that
they
are unable to pay for shared costs of a Case Manager. The totality of
their allegations in this regard are that the first respondent
has
only recently obtained employment as a nurse, that her salary is
nominal and that the second respondent who is self-employed
has seen
his income decline due to the Covid pandemic. However, the
respondents adduced no extraneous or documentary evidence to
establish that their financial circumstances are so constrained that
they are unable to share the costs of the Case Manager. Even
more
tellingly they failed to set out what the cost of the Case Manager
are likely to be. Moreover, it is common cause that pursuant
to the
UK Special Guardianship order they receive a payment from UK Social
Services amounting to some R14 100.00 per month. Apart
from that
there is no evidence of the monthly amount of the respondents income
and what their monthly expenses are. The respondents
have therefore
failed to establish had level of impecuniosity which would preclude
them from sharing in the costs of the Case Manager.
Had the question
of the respondents’ relative impecuniosity impacted on their
ability to contribute to the costs of the Case
Manager, more evidence
of the respondents’ financial circumstances was required to
effectively exempt them from their shared
financial responsibility to
promote and advance L[....]’s best interests.
35.
The respondents’ objection to sharing the costs of the Case
Manager in short was not
well founded. I therefore conclude that the
applicant is entitled an order that the costs of the Case Manager be
shared equally
between the applicant and the respondents.
The
wording of the order under Part A
36.
Dealing with the terms of the draft orders that each of the parties
proposed, there are
minor differences between the draft order
proposed by the applicant and the draft order proposed by the
respondents. None of these
differences are particularly material. As
was pointed out by counsel for the respondents the changes which the
respondents seek
in their version of the draft order (when compared
to the applicant’s draft order and contents of the Notice of
Motion) simply
seek to incorporate certain wording from the Prinsloo
report which was omitted. However, it is clear that the tenor of both
draft
orders, and indeed the draft orders when compared with the
contents of Part A of the Notice of Motion are, in essence, the same
both in form and in substance. It is therefore not necessary to deal
with any of the differences between the two. The order which
I intend
making in any event includes certain of the respondents’
suggested amendments to the draft order, none of which
were
particularly material and none of which were the subject of any
serious contestation.
Costs
37.
That brings me finally to the question of costs. In general, it is
trite that costs follow
the event. The matter however prior to the
hearing, was partially settled in the sense that the issues were
narrowed down between
the parties, save for minor quibbling as to the
contents of the draft orders and the dispute about the shared costs
of the Case
Manager.
38.
In these circumstances it is necessary to take into account that the
founding affidavit
itself is extremely lengthy. No doubt the
applicant felt that it was necessary to adopt a cautious approach and
put in as much
material as possible into her founding affidavit, to
cater for the possibility that the application might ultimately be
opposed.
I am also mindful of the fact that some parts of the
material covered by the founding affidavit may be germane to the
issues that
will be dealt when the relief sought at Part B of the
Notice of Motion is ultimately heard.
39.
The applicant’s counsel, Ms M Feinstein, contended that the
entire costs of the opposed
application should be borne by the
respondents. She contended in this regard inter alia that the
respondents failed properly to
respond to the mediation notice that
accompanied service of the Notice of Motion and Founding Affidavit.
40.
The respondents, who were represented by Ms L Grobler contended that
there had been an in
principle agreement to implement and adopt the
Prinsloo
recommendations
or to mediate as is envisioned by a Rule 41A notice but that
process broke down
and hence they only "accepted" a willingness to mediate
(under the aegis of the Rule 41A notice) after
they had filed their
notice to oppose.
41.
The applicant in turn contended that the in-principle agreement to
implement the Report
or to mediate was still inchoate and had not
been finalized, she was compelled to launch the application. The
applicant argues
that after notice of opposition had been served it
was then too late to accept the offer to mediate.
42.
I take account of the fact that prior to the service of the
application the parties appeared
to have all but agreed that the
provisions of the Prinsloo Report would be implemented and followed.
It is not entirely clear on
the record why the terms of this in
principle type agreement could not have been incorporated in the
notice for mediation and what
steps if any were taken to flesh out
the terms thereof, before the application was launched.
43.
Nonetheless the respondents, in my view, somewhat unreasonably
persisted with their objection
to the shared costs of the Case
Manager, thus making the hearing of an opposed motion all but
inevitable.
44.
Therefore, it is in my view fair that the costs occasioned by the
hearing of this opposed
application be borne by the respondents. The
applicant in respect of the one substantive issue in dispute has been
successful.
The award of costs will exclude the costs occasioned in
the preparation of the affidavits. The answering affidavit was very
lengthy,
but then again so was the founding affidavit. Moreover
despite the filing of the answering affidavit, the respondents, as
already
noted, cooperated in the winnowing down of the
issues and by agreeing to
the implementation of the recommendations contained in the Prinsloo
Report. In these circumstances and
particularly given that the only
real issue in dispute at this hearing was the question of the costs
of the Case Manager, I do
not consider it appropriate to award to the
applicant the costs associated with the preparation of all the
voluminous and somewhat
prolix affidavits.
45.
I accordingly make the following order.
1)
The applicant shall exercise contact with the minor child, L[....]
N[....]
B[....](“the
minor child”), in accordance with the
recommendations of
Nellie Prinsloo(“Prinsloo”), a clinical
psychologist, as set
out in part 25 of her report dated 14 May 2019 (a copy of which
report is at annexure “FA6” to
the applicant’s
founding affidavit).
2)
The applicant and the first and second respondents shall, within 3
(three) weeks of the granting of this order, jointly appoint
L[....]ie Henig, as case manager in order that she may assist the
applicant and the first and second respondents with any issues
that
may arise in respect of the contact arrangements and in order to
ensure that the minor child’s best interests remain
paramount.
The costs of the case manager to be borne equally by the applicant
and the respondents.
3)
The applicant shall exercise contact with the minor child for an
initial
two-month period
following
the date of the granting of this order, as follows:
a.
three weekly contact visits of four hours each to be supervised (as
set out hereunder
in subparagraph c. ) by a social worker, Ms Talita
Filmer (“Filmer”);
b.
the aforesaid visits to occur over a weekend on the Friday, Saturday
and Sunday
at Filmer’s practice;
c.
the first two hours of each visit to be supervised by Filmer and the
second two
hours to be unsupervised;
d.
the Friday and Saturday visits are to be between the minor child and
the applicant;
e.
in addition to the applicant, the Sunday visits may the applicant’s
husband
(Alexander Brdar) and their minor children, Noah and George,
as well as the applicant’s major daughter Amra
4)
Contact after the initial two-month period and for a
second
two-month period
, subject to Filmer’s recommendation, to be
unsupervised on the Friday, Saturday and Sunday and to include two
nights of sleepover
contact.
5)
Subsequent to the contact as set out above in the second two-month
period and after further sessions with Filmer, the minor child
shall
spend a weekend in Zambia with the applicant and her family.
6)
Thereafter and for a
period
of three months (“the third period”),
and subsequent to Filmer first having consulted with the minor child
in regard thereto
,
the minor
child shall have contact with the applicant for one weekend every
three weeks, which contact will be from the Friday afternoon
until
the Sunday evening, and which weekend contact shall alternate between
Zambia and South Africa.
7)
Thereafter, the minor child shall spend a period of two weeks, during
a school holiday period, with the applicant and her family
in either
Zambia or South Africa.
8)
Insofar as it practical (given Covid travel restrictions) during the
aforesaid total seven month
period the minor child and the applicant shall attend bonding therapy
with an educational or
5
clinical
9
psychologist.
The relevant therapy session/s is/are not to be included as contact
hours falling within the contact schedule set
out above.
9)
Thereafter and subsequent to the total of
seven
months constituting the three periods provided for herein
,
the minor child, and the applicant and the first and second
respondents, if required by Prinsloo, are to consult with Prinsloo
in
order that she shall make
further
recommendations to this Honourable Court as to
inter
alia
the
minor child’s best interests, his continued contact with the
applicant and his primary place of residence.
10)
The first and second respondents shall facilitate the aforesaid
contact and ensure that the minor child is available to attend
the
contact sessions as set out above.
11)
The applicant shall provide the respondents with at least 10 days
written notice of any proposed visit to South Africa in order
that
she may exercise the physical contact as aforesaid.
12)
The applicant shall be entitled to attend at any of the minor child’s
sporting, social or educational activities that
may take place during
the applicant’s contact weekends referred to in paragraphs 4 to
6 above.
13)
During each of the three periods referred to above and also
thereafter, regular electronic contact, and communication between
the
applicant and the minor child, including the use of one or more of
the following communication applications: skype, WhatsApp,
facetime,
zoom, teams and the like, is hereby authorised.
14)The
first and second respondents are directed to make available to the
minor child the necessary electronic device, be it a smart
phone, or
an iPad, or a tablet or a laptop, in order to allow for the above
contact and communication to
take place.
15)
The first respondent and the second respondent shall subject to what
is set out below, pay the costs of this application jointly
and
severally, the one paying, the other to be absolved.
16)
The costs shall include the costs of the opposed hearing of 27
January 2021, the preparation of written argument and the
presentation
of oral argument in respect thereof, but shall not
include the applicant’s costs incurred in the preparation of
her founding
and replying affidavits.
17)
In respect of the further relief sought by the applicant in her
notice of motion and subsequent to the further final recommendations
of Prinsloo as referred to in paragraph 9 above, the applicant is
given leave to approach this Court on the same papers, duly
supplemented, for an order as set out in Part B of this Notice of
Motion.
10
February 2021
GB
ROME
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
LOCAL DIVISION,
JOHANNESBURG
Appearances
For
the applicant:
Ms M Feinstein
Instructed
by:
Clarks Attorneys
For
the respondents:
Ms L Grobler
Instructed
by:
Alan Jose Attorneys
Date
of hearing:
27 January 2021