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[2010] ZAGPPHC 226
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Central Authority v Goosen (54790/10) [2010] ZAGPPHC 226 (9 December 2010)
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NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
DATE:
9 December 2010
CASE
NO: 54790/10
In
the matter between:
THE
CENTRAL
AUTHORITY
.........................................................................
APPLICANT
(THE
REPUBLIC OF SOUTH AFRICA)
VS
MICHELLE
GOOSEN
................................................................................
RESPONDENT
JUDGMENT
BOTHA
J:
This
is an application in terms of the Hague Convention for the return of
the child J A K (J) to the United Kingdom. The respondent,
who is the
mother of the child, removed the child from the United Kingdom on 29
May 2009. The child was born on 23 November 2008
from a relationship
between the respondent and Mr P.W Keenoy. The child was removed
without the consent of Mr Keenoy. At the time
of the removal the
child was habitually resident in the United Kingdom.
It
was argued that the child has now been in the Republic of South
Africa (the RSA) for almost 18 months and that article 12 of
the
Hague Convention does not apply. The argument loses sight of the fact
that article 12 refers to a situation where a period
of less than one
year has elapsed "from the date of the wrongful removal or
retention". In this case the respondent initially
indicated her
willingness to return with the child to the United Kingdom, albeit if
certain condition were met. It was only recently
that she adopted the
attitude that she was in any event not prepared to return the child
to the United Kingdom.
In
any event the respondent did not adduce sufficient evidence that the
child is so settled in her new environment that she should
not be
returned to the United Kingdom as provided by the Hague Convention.
The
point is that there should be compliance with the Hague Convention.
It is based on comity, that is mutual trust and reciprocity
between
nations. It is based on an implicit acceptance that the same level
and quality of justice will be dispensed in the courts
of all
signatory states. On a practical level, it is aimed at discouraging
self-help, very much as is the purpose of our common
law remedy of
the mandament van spolie. It has the same underlying principle that
the unlawful act must be reversed before the
merits of a disputed
right can be adjudicated. The merits need not be entertained because
there is absolute confidence in the judicial
system of the requesting
state. As I have pointed out in argument, I am perfectly convinced
that an English court would be as disposed
to make an order in favour
of the respondent as I would be.
As
I have said, the respondent has not provided sufficient evidence to
show that J has become so settled in her new environment
that a
return to the United Kingdom would be harmful to her. In the original
answering affidavit there was virtually no evidence
relating to the
present environment of J. In a supplementary affidavit, lodged whilst
the matter was standing down in order to
enable the parties to agree
on the terms of the court order, the respondent gave more particulars
of J's present environment. It
is enough to say that there is still
no compelling evidence that the removal of Jessica will be to her
detriment. She is only two
years old. Her mother is the main person
in her life. She will remain with her mother.
I
gave the parties ample time to agree on the practicalities of an
order. They could not agree on all the issues, in the end I had,
as
it were, to lay down the law. I have assembled an order composed of
elements emanating from both drafts submitted to me. Mostly
I have
followed the applicant's draft. I shall shortly give my reasons for
rejecting some of the respondent's proposals.
In
paragraph 1 the respondent wanted to insert a condition that her
application for legal aid must have been approved before she
would be
obliged to return the child. Such a condition can only unnecessarily
protract the matter. It has already been established
that the
respondent is eligible for legal aid in the United Kingdom. She has
already applied for it. Even though she must appear
in court within 7
days of her return, I have no doubt that a court will not ride
roughshod over her rights if her application for
legal aid is still
pending.
In
paragraph 2.1 she wanted to add a provision to the effect that she
would be entitled to return immediately to the RSA if Mr Keenoy
did
not comply with his obligations. Such a provision would allow a
circumvention of the courts in the United Kingdom.
In
paragraph 2.5 she wanted the inclusion of an interdict prohibiting Mr
Keenoy from contacting her and from coming within one kilometre
of
the home in Lower Clapton Road. In my view she can obtain protection
in the United Kingdom from the appropriate authorities
if the need
arises. I do not think that it is appropriate to grant an interdict
on the strength of a situation that obtained 18
months ago.
In
paragraph 2.8 she wanted the words "and other necessary
documents" to be inserted after the word "visa".
I
simply cannot visualize what other documents Mr Keenoy will have to
pay for apart from the visa.
Paragraph
2.5 is a combination of the applicant's draft and the respondent's
draft. To the respondent's draft (the undertaking to
let the
respondent and J stay in his home) I have added the words "provided
that Mr Keenoy will be released from this undertaking
if, by allowing
the Respondent and J to stay there in his absence, he would forfeit
his right to occupy the home". The reason
for this addition,
clumsy as it appears at the end of a long sentence, is that there was
a suggestion that Mr Keenoy would forfeit
his right as a tenant if he
ceased to live in the property. It is not clear to me why he should
forfeit his right if a child of
whom he is the father were to stay
there, but if it will have that result, I cannot compel him to
provide that accommodation.
At
the end of paragraph 3 I inserted, at the request of the respondent,
the words "provided the condition in paragraph 2.8
above has
been complied with". It simply means that the visa fee will have
to be paid before the application for a visa can
be considered, as is
the requirement of the High Commission of the United Kingdom.
Having
explained how I have assembled the order I will make the following
order:
The
order marked "X" is made an order of court,
C.
BOTHA
JUDGE
OF THE HIGH COURT