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[2010] ZAECPEHC 15
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G.J.K and Another v K.A.S.K (born B) (1214/09) [2010] ZAECPEHC 15 (4 May 2010)
IN THE HIGH COURT OF SOUTH AFRICA
REPORTABLE
(EASTERN
CAPE, PORT ELIZABETH)
Case No.: 1214/09
Date heard: 29 April 2010
Date delivered: 4 May
2010
In
the matter between:
G
J K
CHERYL-ANN
LEE
1
st
Applicant
2
nd
Applicant
and
K
A S K
(born
B)
Respondent
JUDGMENT
KROON, J:
The outstanding issue in this matter
is the question what would be an appropriate order in respect of the
costs of the application.
The first applicant and the
respondent were formerly married to each other. The marriage was
dissolved by order of this Court
on 23 September 2008. The order
incorporated the terms of a deed of settlement entered into by the
parties. Paragraph 2 thereof
dealt with the care and control of the
minor children born of the marriage, two daughters then aged 7 years
and 4 years. It
was provided
inter
alia
that the children
would reside with the respondent, who would be their primary carer
subject to the first applicant’s right
of reasonable access to
them (which was partially defined in the order).
The second
applicant
was the fiancé of the first applicant when the proceedings
were commenced. The applicants have since married
each other.
On 6 May 2009 the
applicants
launched the present proceedings as a matter of urgency. The main
relief sought was an order varying the regime relating to
the care
and control of the children, in essence decreeing that the first
applicant be the primary carer of the children and
that they live
with him, with the respondent having rights of access to them, as
determined by the Court after receipt of a report
from the Family
Advocate.
Ancillary relief sought was an
interdict restraining the respondent from assaulting, threatening to
assault or in any way communicating
with the second
applicant
.
The notice of motion sought the issue
of a rule
nisi
calling upon the respondent to show cause why orders as set out in
paragraphs 4 and 5 above should not be granted (with an interim
interdict in terms of such orders) and why the respondent should not
be directed to pay the costs of the application in the event
of her
opposing same.
A further prayer in the notice of
motion sought an order defining the respondent’s right of
access to the children pending
the determination of the application
in respect of the relief referred to in paragraph 4 above. The
definition sought was
inter
alia
to restrict the
respondent to supervised access to the children and to subject the
access to the conditions that the respondent
be sober at the time,
that she not partake of alcohol during the period of the access and
that she not transport the children
in her vehicle.
On 8 May 2009 this Court issued
orders as sought in the notice of motion, with the return day being
14 May 2009. These orders
were made by agreement between the
parties. An initial report by the Family Advocate dated 13 May 2009
in substance endorsed
the agreement.
On 14 May 2009 an amended rule
nisi
,
returnable on 13 August 2009, was issued calling upon the respondent
to show cause why an order should not issue:
directing that the children be
placed in the primary care of the first applicant and reside with
him;
defining the respondent’s
right of access to the children as set out in the order (including
a restriction that the access
be under prescribed supervision and a
prohibition against her transporting the children in a vehicle);
directing the respondent not to
assault, threaten to assault or in any way engaging with the
second applicant;
directing the respondent to pay the
costs of the application in the event of her opposing same.
It was further ordered that interim
orders in terms of (a), (b) and (c) would operate. Again, the orders
were issued by agreement
between the parties.
A further report by the Family
Advocate dated 11 August 2009 recorded that the respondent was
attending sessions of Alcoholics
Anonymous, that she was undergoing
therapy by a psychologist and that she reported that she had
successfully abstained from the
use of alcohol for the preceding
three months.
After considering all the information
before her the Family Advocate
inter
alia
qualified the earlier
report by recommending that the respondent’s contact with the
children be unsupervised (provided that
she maintained sobriety). A
further recommendation was that the parties agree on the appointment
of a social worker or psychologist
for a period of 18 months
inter
alia
to monitor the
respondent’s recovery from alcohol dependency and to
facilitate alternative (including supervised) contact
between the
respondent and the children in the event of the former failing to
maintain sobriety, until the Court could be approached
for
appropriate relief.
On 13 August 2009 the matter was
postponed to 5 November 2009 with the rule being extended
accordingly. No costs order was made.
Mr
Ronaasen
,
who appeared for the applicants advised me that he thought that the
reason for the postponement might have been that the Family
Advocate’s further report was not yet to hand. That, however,
could not have been the reason: the report had in fact
been filed
on the previous day.
On 14 September 2009 the respondent’s
attorneys withdrew as her attorneys of record. No other attorneys
were thereafter
appointed by the respondent to act on her behalf,
and she represented herself.
On 5 November 2009 the matter was
postponed to 14 January 2010, the rule extended accordingly and the
costs were reserved. Counsel
advised me that the postponement was
occasioned by a defective preparation of the papers attributable to
the applicants’
camp.
On 14 January 2010 a postponement to
28 January 2010 was ordered and it was further ordered that there be
no order as to costs.
A further order of postponement on 28 January
2010 to 4 March 2010 was accompanied by an order that the costs be
costs in the
cause. On 4 March 2010 the matter was again postponed
to 29 April 2010 (when the matter came before me) with the costs
being
reserved. The reason for the postponement was that the
applicants’ heads of argument were not in the file (although I
was advised by Counsel that a copy thereof had been handed to the
Judge who had presided on an earlier occasion).
In the result, the parties reached
agreement on the order I would be requested to make on the merits.
That order, firstly, made
provision for the first applicant to be
the primary care giver of the children, for them to reside with him,
and for the respondent
to have structured supervised contact with
the children (the supervisor to be the respondent’s mother or
another adult
person agreed upon between the parties). The order
requested was in accordance with the recommendations of the Family
Advocate
in her final report (see paragraph 29 below). In the
second place the order provided for a restraint on the respondent
against
assaulting, threatening to assault or in any way engaging
with the second applicant.
The parties were, however, unable to
reach agreement on the issue of costs and that was the sole issue
argued before me. As indicated
above, the respondent appeared in
person. It was because the issue of costs remained on the table
that the history set out above,
and that which follows, has been
recorded.
In his founding affidavit the first
applicant, on the issue of the care and control of the children, set
great store by the respondent’s
addiction to alcohol. He
inter alia
mentioned that the respondent had during March 2009 booked herself
into a rehabilitation centre in Cape Town for a period but
that he
had gained the impression, during telephonic conversations with the
respondent on 13 April 2009, that she had again been
drinking and he
received confirmation from the respondent’s mother during a
telephone call on that date that the respondent
had relapsed into
drinking again as well as other hearsay information to the same
effect. He also referred to his assessment,
based on a telephonic
conversation with the respondent on 24 April 2009, that she had been
drinking and, again, received telephonic
confirmation by the
respondent’s mother that the respondent had had a ‘slight’
relapse with respect to alcohol.
On the same day, the respondent
had, with her boyfriend, taken the children in her vehicle to the
beach. The respondent’s
brother also confirmed on 27 April
2009 that the respondent was drinking again. A further telephonic
conversation with the respondent’s
mother elicited further
confirmation. He also referred to an incident at his home on 28
April 2009 when the respondent, in a
drunken state, behaved
aggressively after having driven there while intoxicated. At his
request a Mr Snowball arrived at the
home in order to drive the
respondent home. The respondent, however, continued to be
recalcitrant. She, however, agreed to
be driven home by Snowball,
but insisted on taking the younger child with her. It is
unnecessary to detail the further allegations
of the first applicant
as to the events on the evening in question, nor the tabulation of
the reasons set out by him for seeking
the orders reflected in the
notice of motion.
In her supporting affidavit the
second applicant tendered confirmation of the allegations of the
first applicant. She, however,
went into further detail concerning
the events of 28 April 2009 at her residence (after having averred
that the respondent had
on previous occasions physically assaulted
and/or verbally threatened her). In short, prior to the arrival of
Snowball, the
respondent, in her intoxicated state, verbally abused
her in extreme terms, and resorted to physically assaulting her.
The children
were emotionally upset at the events.
Snowball’s affidavit
constituted support for the allegation that the respondent was
clearly inebriated on the evening in
question.
On 3 November 2009 the first
applicant deposed to a supplementary affidavit. Adverting to the
fact that the respondent had not
yet delivered a notice of intention
to oppose the proceedings the first applicant recorded that the
respondent’s erstwhile
attorney had ‘indicated’
that she would be opposing the proceedings. So also the
respondent’s counsel had
given a similar indication in Court
on 8 and 14 May 2009. What the extent of the opposition was to be
was, however, not elucidated.
It was further recorded that the
first applicant’s attorney had addressed an open letter dated
24 August 2009 to the respondent’s
attorneys proposing that
the matter be settled on the following basis:
a regime in respect of the children
in accordance with the Family Advocate’s reports of 13 May
and 11 August 2009 (see
paragraphs 8 and 11 above) save that the
respondent’s unsupervised contact with the children would in
certain respects
be structured differently;
confirmation of the rule
nisi
in respect of the relief sough by the second applicant;
each party to pay their own costs.
It was further conveyed that failing
a settlement the respondent was on terms to file her opposing papers
and should she elect
to oppose the relief sought a costs order as
prayed for in the notice of motion would be sought.
As stated above, the respondent’s
attorneys withdrew from the matter on 10 September 2009. It was not
indicated whether there
was any response to the letter.
The further allegations in the
supplementary affidavit were to the effect that notwithstanding that
the respondent had intimated
to the first applicant that she was
receiving treatment for her alcoholic dependency and that same
seemed to be effective, the
respondent had started drinking again,
and the result was that the children were adversely affected. In
this regard, the first
applicant referred to various incidents and
information received from other persons, including the respondent’s
mother
and the children. The first applicant accordingly adopted
the stance that all contact the respondent has with the children was
to be supervised, pending the respondent’s rehabilitation. A
confirmatory affidavit was filed by the second applicant in
respect
of certain events deposed to by the first applicant.
On 5 November 2009 the respondent
filed an affidavit which she stated was in response to the first
applicant’s supplementary
affidavit. She placed in issue a
number of factual averments made by the first applicant.
Specifically, save for what follows,
she denied that she had resumed
drinking. She admitted only a single incident which occurred on
Sunday 25 October 2009, when
the children were with her. After the
children had bathed and eaten supper and while they were watching
television she consumed
two glasses of wine. She realised the error
of what she had done and called her mother to come to the house.
After her mother’s
arrival she began to feel ill as a result
of the combination of alcohol and a medicine called Antibuse
(designed to induce her
not to partake of liquor) which she had
taken earlier and was still in her system, and she was caused to
vomit. The children
only became aware that she had taken some wine
after the arrival of her mother, and understandably they were
stressed by their
parent getting sick in front of them.
The respondent’s mother filed
an affidavit confirming the above events. She further denied the
first applicant’s
averment that she had on a subsequent date
advised him that the respondent had started drinking again. On
being asked by him
about the respondent’s drinking she had
replied that the respondent had had a ‘minor slip’ on
the evening of
25 October, and that he, the first applicant, was
making ‘a mountain out of a molehill’. She also
confirmed the
respondent’s denial of the first applicant’s
averment that there was any alcohol available at the birthday party
of one of the daughters on 10 October 2009.
The respondent went on to refer to
the Family Advocate reports and specifically the recommendation that
she be allowed unsupervised
access to the children and she averred
that until the incident of 25 October 2009 the first applicant was
quite satisfied with
her having unsupervised access. She contended
that supervised access would put a strain on her relationship with
the children
as her mother, the proposed supervisor, would not
always be available and her access would accordingly be limited, nor
could
her mother be expected to participate in all the activities
involved.
She confirmed that she is still
attending 3 AA meetings per week and is receiving counselling during
her recovery, about which
she is very positive despite the setback
referred to above, the only occasion on which she partook of alcohol
during the preceding
six months.
The Family Advocate submitted a final
report on 27 November 2009. In essence, the report takes the stance
that while the respondent
had earlier shown considerable commitment
to overcoming her alcohol addiction, she did have a lapse on the
evening of 25 October
2009, and that what was referred to as her
inability to abstain from alcohol during periods of contact with the
children placed
the latter at physical and emotional risk. It was
therefore recommended that the respondent’s access to the
children be
supervised.
Mr
Ronaasen
initially sought an order that the respondent be directed to pay all
the costs incurred by both applicants in the application.
The
respondent submitted that a fair order would be that each party bear
his or her own costs, or, stated differently, that
there be no order
as to costs.
Counsel subsequently conceded
(correctly) that the order he sought should not embrace the costs of
a number of the hearings referred
to earlier in this judgment. It
is not necessary to instance the hearings in question in view of the
conclusion to which I have
come in respect of the costs order to be
made.
It will be convenient to dispose
first of the issue of the costs relating to the interdict
restraining the respondent from assaulting,
threatening to assault
or in any way engaging with the second applicant. Counsel’s
submission was in essence that in securing
the interdict, based on
the respondent’s conduct (which she had not placed in issue),
the second applicant had achieved
success and accordingly the
ordinary rule that the costs follow the event should operate.
It will be recalled, however, that
the notice of motion reflected that a costs order would be sought
against the respondent in
the event of her opposing the application.
The respondent did not, however, file any papers opposing the grant
of the interdict
and there is no other indication in the papers that
at any stage she offered opposition the grant of the interdict. On
the contrary,
the respondent advised me from the Bar that it had
been made quite clear to the applicants’ representatives from
the start
that the grant of the interdict was not opposed. Mr
Ronaasen
did not seek to cross swords with this statement.
Accordingly, as regards the issue of
the interdict it would be appropriate that there be no order as to
costs.
In respect of the relief relating to
the care and control of, and access to, the two minor children,
counsel adopted the same
argument: success had been achieved by the
first applicant and the costs should follow the event.
The history of the matter detailed
above reflects, however, that it was only at a late stage that the
respondent offered any opposition
to the application and then only
in respect of the circumscribed issue whether her access to the
children should be supervised
or not. The question then is whether
that opposition, limited in time – the respondent in the
result did not persist therein,
no doubt in the light of the
recommendation in the final report of the Family Advocate –
justifies the costs order pressed
by counsel.
Counsel accepted that I had a wide
discretion in the matter of costs subject thereto that the
discretion should be judicially
exercised. He referred me to the
judgment of
Wunsch
J in
Bethel v Bland and
others
[1997] JOL 357
(W).
In the course of his judgment the learned Judge referred to a
number of previous cases where a variation of a custody order
was in
issue and where it was decided that it would be appropriate to make
no order as to costs. He also noted that the approach
is supported
by various authors. The general basis for the approach was the
sentiment that in such cases there are no winners
or losers in the
conventional sense and that where the parents act in what they
bona
fide
consider to be the
best interests of the children neither should be visited with an
adverse costs order. In one case it was
even said that the usual
rule applicable was that there be no costs order made.
The learned Judge pointed out,
however, that there is no basis for talk of a ‘
usual
rule’
and that
the instances of rulings such as those referred to are no more than
guidelines to the exercise of judicial discretion,
to be weighed
against other considerations. The learned Judge concluded as
follows:
‘
I
consider the correct approach to be:
1. Generally speaking, a
successful litigant is entitled to his or her costs.
2. While it is quite true
that a custody dispute should not be seen as an adversarial contest
in the ordinary sense but rather as
an enquiry into the best
interests of the child, it cannot be denied that in most cases the
litigants are advancing their own preferences
and seeking
satisfaction of their love of the child. Often, too, the papers
contain many attacks on the character and conduct of
the opponents.
3. On the other hand it
is also a consideration that a party should not be discouraged from
putting up a case which he or she, on
broadly reasonable grounds,
thinks to be in the interests of the child for fear of having costs
awarded against him or her if unsuccessful.
By the same token, a
party who is, on what turn out to be good grounds, confident that his
or her case will prevail, should not
be discouraged from taking or
resisting action because of the costs which he or she will incur.
4.
However
bona
fide
and
concerned a party may be, if his or her opponent's judgment of the
issue prevails, it is not, in the absence of circumstances
justifying
it, fair that the opponent should be mulcted in his or her own
costs.’
The approach of the learned Judge is
in general to be supported save that in my view
bona
fides
concerning what is
in the interests of a child may well, depending on the other
circumstances of the case, be sufficient to avoid
an adverse costs
order. In the result, on a conspectus of all the circumstances, I am
persuaded that the limited opposition of
the respondent, which she
eventually did not persist in, but in which, so I find, she
bona
fide
acted in what she
considered to be in the interests of the children, does not
constitute sufficient justification for making
a costs order against
her.
The following order will accordingly
issue:
The order of this Court on 23
September 2008 in case no 365/2007 is varied by the deletion of
paragraphs 2.4, 2.5, 2.6 and
2.7 of the deed of settlement
incorporated in the said order.
The terms of the agreement reached
between the parties as recorded in the Deed of Settlement
concluded between them and filed
of record on 21 April 2010 are
made an order of Court.
There will be no order as to costs.
______________
F
KROON
Judge
of the High Court
Appearances:
For
the applicants:
Adv
O H Ronaasen
Instructed
by Spilkins Incorporated
(Ref
Mr E J Badenhuizen/MHuman)
Tel:
041-5821705 Fax: 041-5853968
For
the respondent:
Mrs
Klare in person