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[2017] ZAECPEHC 10
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S.F.J v N.C.J (3628/2014) [2017] ZAECPEHC 10 (9 February 2017)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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SAFLII
Policy
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH
Case
no: 3628/2014
Date
heard: 20
th
January 2017
Date
delivered: 9
th
February 2017
In
the matter between:
S.
F.
J.
Applicant
vs
N.
C. J.
Respondent
JUDGMENT
TSHIKI
J:
[1]
The applicant herein has filed an application against the respondent
on An urgent basis for an order in the following terms:
“
1.
Condoning the applicant’s non-compliance with the Rules of
Court
relating to form, time limit and notice, and to hear the
application in terms of the provisions of Rule 6(12) as one of
urgency.
2.
Directing the respondent to immediately return the minor children
S.
Q. S. and K. E. J., to the care of the applicant and in the
event of her failing to do that, directing the Sheriff to
take all
steps necessary to place the minor children in the applicant’s
care.
3.
Interdicting the respondent from removing the minor children from
the
care and custody of the applicant pending the finalisation of this
application.
4.
That a Rule
Nisi
be
issued calling upon the respondent to advance reasons (if any) to
this Court on Tuesday, 31 January 2017 at 09h30 why it should
not be
ordered:
4.1
that the minor children S. Q. S. and K. E. J., shall remain in
the care and custody
of the applicant, pending the finalisation of
the divorce proceedings between the parties in this Court under case
number 3628/2014;
4.2
that the respondent shall have only supervised contact with the
children pending the finalisation
of the divorce proceedings between
the parties in this Court under case number 3628/2014;
4.3
that the respondent shall pay the costs of this application on a
scale as between attorney
and client.
5.
That the order contained in the paragraphs 4.1 and 4.2 above shall
serve as an interim
interdict pending the finalisation of this
application.”
[2]
The respondent has opposed the application mainly on the following
grounds. That the parties have two minor children (both boys)
born of
their marriage namely
S.
Q. S.
(born
[....] 2004) and
K.
E. J.
(born on [....] 2012). When the respondent moved to Gauteng in
September 2013, the two minor children remained behind in
Port
Elizabeth under the care of the parties’ nanny, at the
respondent’s parents’ house. There is also
a
pending divorce proceeding between the parties which have been set
down for trial on the 14
th
February 2017. According to the applicant, the respondent has
further failed to procure or file any current expert report
addressing the issue of the best interests of the minor children
relative to their primary care. The family advocate has
earlier
recommended that the minor children remain in the care of the
applicant. The respondent has not yet procured or files
any
contrary expert report contending otherwise. The applicant is
of the view that it seems as being unlikely that the divorce
action
will proceed on the arranged trial date, however some documents filed
by professional counsellors including that of the
Family Advocate
Elaine Botha which have been filed and deal with the pertinent issues
to be dealt with during the divorce proceedings.
[3]
When this application was argued
Ms
Mey
appeared
for the applicant and
Mr
Nobatana
represented
the respondent.
[4]
It is unfortunate that this application has been argued without this
Court having been assisted by an updated report of the
Family
Advocate. However, the final divorce, according to the papers
will be finalised on the 14
th
February 2017 and I hope that the divorce Court could not finalise
the divorce action unless the report of the Family Advocate
has been
filed to assist the divorce Court. Hopefully by the 14
th
February 2017 the divorce Court would have been equipped with the
Family Advocate’s report, failing that report the divorce
proceedings will be postponed more so that there are minor children
involved.
[5]
In my view, and also at this stage of the proceedings it would not be
in the interests of the children to have them taken away
from the
parent who has their custody. I say so, in view of the fact
that the divorce action date has been set down for the
14
th
February 2017 and for that reason it would not be wise to shift the
custody of the children from the current custodian.
[6]
My recommendation is to have the divorce proceedings finalised if
they are ready and this will also benefit even the current
parties in
these proceedings. Should that not be the case, I would then
advise the parties in this case to have the application
postponed
until they are ready to finalise their divorce action.
[7]
However, should the divorce proceedings be postponed the parties
would have to approach the family advocate for its recommendation
before the parties proceed to approach the Court for an order for
custody.
[8]
in the result I make the following order:
[8.1]
The application is hereby postponed
sine die.
[8.2]
There shall be no order as to costs.
_________________________
P.W.
TSHIKI
JUDGE
OF THE HIGH COURT
For
the applicant
: Adv Mey
Instructed
by
: Brown
Braude & Vlok Inc
PORT
ELIZABETH
Ref:
I Lambrechts/Dianne
For
the respondent
: Adv
Nobatana
Instructed
by
: Lulama
Price & Associates
PORT
ELIZABETH
Ref:
Ms Prince