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[2023] ZAFSHC 310
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C.L v N.V.V (1575/2021) [2023] ZAFSHC 310 (4 August 2023)
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IN THE HIGH COURT
OF SOUTH AFRICA,
FREE STATE
DIVISION, BLOEMFONTEIN
Case number:
1575/2021
REPORTABLE: YES/NO
OF
INTEREST TO OTHER JUDGES: YES/NO
CIRCULATE TO MAGISTRATES:
YES/NO
In
the matter between:
C[…]
L[…]
Applicant
and
N[…]
V[…] V[…]
Respondent
JUDGMENT
BY:
REINDERS,
J
HEARD
ON:
28 JULY 2023
DELIVERED
ON:
04
AUGUST 2023
This judgment was handed
down in open court and on even date circulated to the parties’
representatives by electronic mail
communication.
[1]
This matter came before me on the urgent roll on Friday 28 July 2023.
It was issued two days before
and opposing papers were filed on 27
July 2023. The replying affidavit was filed shortly before hearing of
the application.
[2]
When the matter was called the papers were not paginated as required
by the Practise Rules of
this Division. Had this matter not concerned
the interest of a minor girl aged four, I would have struck the
matter for non-compliance
with rule 7.4. Not only was the entire
court file disorganised, but part of the record that I deemed must be
considered for an
understanding of the urgent relief prayed for, was
absent in the court file. As the interest of minor child is
paramount, I was
prepared to take the matter on my urgent roll.
[3]
The history of this matter paints a sad picture of the acrimonious
disputes between the parties
regarding the care, primary residency
and contact of the minor (hereafter the care and contact).
[4]
On 20 May 2021 this court issued an interim order, pending
finalisation of an application (the
main application), which made
provision for the parties’ rights of care and contact of the
minor (per Mathebula J). At the
time the respondent was residing in
Bethlehem, whilst the applicant resided in Port Elizabeth. This is
currently still the position.
In terms of the interim order, the
parties were to exercise their rights of contact on the basis of
rotating the residency of the
minor every fortnight between them,
commencing with the respondent having the minor with him from 5 June
2021 and returning her
to the applicant in Port Elizabeth on 20 June
2021. This arrangement of the respondent collecting the minor from
the applicant
on a Saturday and returning her after two weeks on a
Sunday (at his costs), was in place for a period of more than two
years until
a dispute arose between the parties resulting therein
that the respondent did not return the minor to the applicant when he
had,
according to the applicant, to do so on 23 July 2023.
[5]
On 21 October 2021 the main application was ultimately and finally
disposed of by Chesiwe J who
granted the respondent the primary
residency of the minor and amended the present applicant’s
rights of contact. Not satisfied
with the order the applicant
properly obtained leave to appeal from the court a quo and filed a
notice of appeal. The appeal record
was prepared and filed on 14 June
2023, however according to the respondent there was no application
for a date for hearing of
the appeal.
This was only done on 23 June 2023. In terms of High Court Rule
49(6)(a), the applicant should have made written application
for an
appeal date on or before 15 June 2023. The respondent complains that
no notice containing applicant’s particulars
as required by
Rule 49(6)(a) has been filed, and of more importance no power of
attorney has been filed as is provided for in Uniform
Rule 7(2). The
end result therefore of the complaint by the respondent, is that the
proposed appeal has lapsed.
[6]
It is the
applicant’s contention
and request herein that I should make an order that the order granted
by Mathebula J remains in full
force and effect, resulting therein
that the noting of the appeal herein suspended the operation of the
order dated 21 October
2023. The applicant also prayed that I should
order the respondent to return the minor to her in accordance with
the interim order.
[7]
I wish to stress that I am not to consider the contact rights or
primary place of residence of
the minor child – that has
already been adjudicated by Chesiwe J on 21 October 2022. I am simply
to make a conclusion whether
the order of Chesiwe J is
suspended pending the appeal. Applying the relevant legal
principles (and obviously without an attempt to bind the court
hearing
the appeal), I am of the view that the appeal has lapsed in
various respects. The request to allocate an appeal date should have
been filed at the latest on or before
the
16 June
2023 failure whereof the appeal lapsed
ipse iure
until
condonation is granted. Although such condonation might still be
requested even at the time of the hearing of the appeal,
there is no
such application at present. My understanding of the Rule is that a
power of attorney should similarly be filed at
least simultaneously
with the record. In applicant’s replying affidavit it is
alleged that same had now been filed.
[8]
There is in my view another unassailable obstacle that the applicant
has. The order of Mathebula
J on 20 May 2021 was an interim order
pending finalisation of the main application. In my view it lapsed
when the matter was finally
adjudicated on 21 October 2022 and could
not be revived by an appeal against the final order.
See:
MV Snow Delta
Serva Ship Ltd v Discount Tonnage Ltd
2000 (4) SA 746
(SCA).
[9]
This being so I have to conclude that the application cannot succeed.
As the matter concerns the
interest of a minor child and having
noticed applicant’s ostensible constrained financial position
compared to that of the
respondent, I find it appropriate in
exercising my discretion that each party should pay its own costs.
[10]
I would be remiss in my task if I fail to make some remarks in this
matter. From a perusal of the papers it seems
to me that the
continuous bad blood between the parties extend to their instructing
attorneys. In fact, I get the distinct impression
that the animosity
might even be fuelled by such legal representatives. In my view in
doing so none of those involved truly considers
the best interests of
the minor but rather engage in a “winner takes all”
attitude. It is evident to me that the applicant
still intends to
pursue the appeal. Despite my findings in paragraphs 7 and 8 herein
above, I do not find any indication in the
respondent’s
answering affidavit that he had genuine and serious concerns about
the wellbeing of the minor up until the time
that the dispute about
the lapsing of the appeal arose, nor in the past two years. If he
indeed had such concerns, I would have
expected it to be raised in
his answering affidavit. Should the respondent wish to demonstrate
his bona fides in this matter, it
would in my view be a good
opportunity for him to continue with the fortnight arrangements, or
to take the minor to the applicant
for at least a week per month,
until finalisation of the appeal.
[11] I
make the following order:
11.1
The application is dismissed.
11.2
Each party to pay its own costs.
C. REINDERS, J
For
the Applicant:
Adv
S Boonzaaier
Instructed
by:
Van
Dyk Attorneys
BLOEMFONTEIN
For
the Respondent:
Adv
Van Rooyen
Instructed
by:
Greyling
Orchard Attorneys
c/o
McIntyre & Van der Post
BLOEMFONTEIN