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[2022] ZAFSHC 116
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Roberts v Kearney and Another :In re Application between: Roberts v Kearney (3451/2021) [2022] ZAFSHC 116 (12 May 2022)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case number: 3451/2021
Reportable: YES/NO
Of Interest to other
Judges: YES/NO
Circulate to
Magistrates: YES/NO
In the matter between:
ANGELA
ROBERTS
Applicant
And
BRENDAN SCOTT
KEARNEY
First Respondent
ILZE
STRYDOM
Second Respondent
In re: Application
between:
ANGELA
ROBERTS
Applicant
And
BRENDAN SCOTT
KEARNEY
Respondent
HEARD
ON:
28
APRIL 2022
JUDGEMENT BY:
LITHEKO, AJ
DELIVERED
ON:
12 MAY 2022
INTRODUCTION
[1]
The Applicant brought an application against the First and Second
Respondents on a
semi-urgent basis in terms of Rule 6 (12) of the
Uniform Rules of Court. The application is opposed by the First
Respondent only.
The relief which the Applicant seeks is the
following:
“
2.
That an order be granted in accordance with the provisions of section
18
(1) and section 18 (3) of the Superior Courts Act 10 of 2013
declaring that:
2.1.
The operation, the execution and the implementation of the Court
Order granted by
the Free State High Court on 17 March 2022 under
Civil Case Cover Number 3457/2021 will not be suspended
pendent
lite
(
sic
) the finalisation of the Application for Leave
to Appeal and/or any other Appeal proceedings to be brought by any of
the parties.
2.2.
The Court Order granted by the Free State High Court on 17 March 2022
under Civil
Case Cover Number 3457/2021 shall be operational and can
be implemented by the Applicant with immediate effect.
2.3.
Should the appeal proceedings ultimately be finalised in favour of
the First Respondent,
then the Applicant shall return the minor child
to the Republic of South Africa within a reasonable period of time.
3.
The Second Respondent is ordered and directed to hand over the
passport
of the minor child to the Applicant upon the production of
this Order.
4.
The First Respondent is ordered to pay the costs of this
Application.”
[1]
[2]
The relevant and material terms of the Court Order that was granted
on the 17
th
March 2022 and which is sought to be put in
operation and executed, pending the finalisation of the application
for leave to appeal
or appeal are the following:
“
1.
The Applicant is granted leave to remove the minor child IGK,
permanently
from the Republic of South Africa to Ireland.
2.
The Respondent is ordered to forthwith sign all
documents pertaining to the relocation of the minor child, IGK and to
take all such
steps that may be necessary to enable the applicant to
apply for the issuing of passports and /or for the issuing of visas
for
the minor child, failing which the sheriff of the above
Honourable court is authorized and directed to take all such steps
and
to sign all such documents on the Respondent’s behalf.
3.
The Respondent is ordered to forthwith sign all
such documents and to take all such steps that may be necessary to
enable the Applicant
to lawfully remove the minor child from the
Republic of South Africa, failing which the sheriff of the Honourable
Court is authorized
to take all such steps and to sign all such
documents on the Respondent’s behalf.
4.
Upon the relocation of the Applicant and the minor
child to Ireland, the Respondent will be entitled to maintain contact
with the
minor child as follows:
4.1
The Respondent shall be entitled to continue
contact as set out in the Children’s Court Order dated the 10
th
November 2020, subject to the condition that such
contact rights must be exercised within Ireland.
4.2
…
..”
FACTUAL BACKGROUND
[3]
Before I consider the issues that are raised by this application, the
following facts
need to be outlined. The Applicant and the First
Respondent are the biological parents of the minor child involved in
this application.
She was born on the 30
th
June 2017 while
the parties were engaged and shortly thereafter the parties’
engagement was ended. The minor child stayed
with the Applicant. On
the 10
th
November 2020 the First Respondent obtained an
order in the Children’s Court in terms of which he formally
acquired his parental
rights and responsibilities, amongst others, to
maintain contact with the minor child. On the 28
th
July
2021 the Applicant applied for and, on the 17
th
March
2022, was granted a relocation order which is partly quoted above.
[4]
The First Respondent is aggrieved by that relocation order and on the
23
rd
March 2022, his legal
representatives delivered a notice of application for leave to
appeal, which, in terms of section 18 (1) of
the Superior Courts
Act
[2]
, (the SC Act)
automatically suspended the order sought to be put in operation and
executed, hence the application.
[5]
The First Respondent opposes the application on the grounds that:
5.1.
The application is not urgent.
5.2.
There are no exceptional circumstances that warrant the
order.
5.3.
The Applicant will not suffer irreparable harm if the order is stayed
pending the
outcome of the application for leave to appeal or of the
appeal.
5.4.
The First Respondent and the minor child will suffer irreparable harm
if the order
is enforced pending the outcome of the application for
leave to appeal or of the appeal.
[6]
I now turn to deal with the issues raised by this application:
I.
RULE 6 (12) OF THE UNIFORM RULES OF COURT
[7]
Rule 6 (12) gives the court a discretion to dispense with the forms,
service and other
procedural steps provided for in the Uniform Rules
of Court and may dispose of a matter in any manner that it deems fit,
provided
there are circumstances which render the matter urgent.
[8]
In his heads of argument and oral submissions Mr. Coetzer, who
appeared for the Applicant,
argued that the event that triggered this
application is the receipt by the Applicant of the letter dated the
28
th
March 2022 which her employer, Square 1, addressed to
her, wherein she is informed that if she does not report for duty in
Dublin,
Ireland within four weeks, her position will be reconsidered.
In the letter, she is called upon to advise her employer of the steps
to be taken to ensure that she reports not later that the 30
th
April 2022. Mr. Coetzer argued that although the Applicant’s
employer does not state in the letter that failure on the part
of the
Applicant to report for duty in Dublin on or before 30
th
April 2022 will result in termination of her contract of employment,
that is what in his submission the employer meant by
‘reconsideration’
of the Applicant’s position. He
submitted that as the Applicant does not want to stay in the Republic
of South Africa anymore
owing to lack of safety and opportunities and
because the Applicant’s employment in Ireland is a
once-in-a-lifetime opportunity
that may be lost if she does not
relocate on or before the time stated in the letter, the matter is
urgent enough to warrant disposal
thereof without strict adherence to
the procedures set out in the Rules. His submission is that the
application to enforce an order
pending the outcome of an application
for leave to appeal is inherently urgent.
[9]
Mrs. Georgiou, on behalf of the First Respondent, argued that the
application is not
urgent and that it must be dismissed on that
ground alone. She submitted that the Applicant’s interpretation
of the contents
of the letter as meaning that employment contract of
the Applicant will be terminated if she does not report for work in
Dublin,
Ireland by the 30
th
April 2022 is wrong. Her
grounds for this submission are that the Applicant possesses highly
sought after skills and she has been
working remotely for her
employer since February 2021. If the employer’s intention was
to terminate the employment contract
of the Applicant in the event
she does not report for duty on the 30
th
April 2022, he
would have stated so in the letter. She argued that in her view,
because of the indispensability of the Applicant,
what the employer
meant by reconsideration of her position is that the Applicant would
be given a different title or be allowed
to continue working remotely
as she has been doing since February 2021, instead of having to
report for duty in Ireland by the
30
th
April 2022.
[10]
The Applicant’s employer has not deposed any affidavit
clarifying what he meant by the ambiguous contents
of his letter and,
any meaning accorded the contents of the letter will be mere
conjecture. However, for the reason that the First
Respondent was not
prejudiced in any manner as a consequence of the Applicant’s
non-compliance with the Uniform Rules of
Court pertaining to forms
and service and considering the fact that the orders that the parties
seek in this application, although
diametrically opposed, are not in
the nature of final judgements as they may change depending on the
outcome of the application
for leave to appeal, and the fact that the
interest of a minor child are at stake, I decided to treat this
matter as one that deserves
urgent adjudication.
II.
SECTION 18 OF THE SUPERIOR COURTS ACT REQUIREMENTS
[11]
In this application, the relevant subsections of section 18 of the SC
Act are subsection (1), (3), (4) and
(5) and they provide that:
“
Suspension of
decision pending appeal
(1)
Subject to subsections (2) and (3), and unless the court under
exceptional circumstances
orders otherwise, the operation and
execution of a decision which is the subject of an application for
leave to appeal or of an
appeal, is suspended pending the decision of
the application or appeal.
(2)
…
(3)
A court may only order otherwise or contemplated
in subsection (1) or (2), if the party who applied to the court to
order otherwise,
in addition proves on a balance of probabilities
that he or she will suffer irreparable harm if the court does not so
order and
that the other party will not suffer irreparable harm if
the court so orders.
(4)
If a court orders otherwise, as contemplated in
subsection (1)-
(i)
the court must immediately record its reasons for
doing so;
(ii)
the aggrieved party has an automatic right of
appeal to the next highest court;
(iii)
the court hearing such an appeal must deal with it
as a matter of extreme urgency; and
(iv)
such order will be automatically suspended,
pending the outcome of such appeal.
(5)
For the purpose of subsection (1) and (2), a
decision becomes the subject of an application for leave to appeal or
of an appeal,
as soon as an application for leave to appeal or a
notice of appeal is lodged with the registrar in terms of the rules.”
[12]
In order to succeed, an applicant who seeks to invoke the provisions
of section 18 must prove on a balance
of probabilities that:
12.1.
There are exceptional circumstances warranting the operation and
execution of an order which is the subject of an application for
leave to appeal or of an appeal.
12.2.
The Applicant will suffer irreparable harm if the order is not
put
into operation and execution.
12.3
The Respondent, who seeks leave to appeal, will not suffer
irreparable harm if the order is not suspended.
[3]
EXCEPTIONAL
CIRCUMSTANCES
[13]
In the case of MV Ais Mamas Seatrans Maritime v Owners, MV Ais Mamas,
and Another
[4]
, a case referred
to in
Incubeta
Holdings,
which
considered what the words “exceptional circumstances”
mean, the following was said at 156I-157C:
“
What does emerge
from an examination of the authorities, however, seems to be the
following:
1.
What is ordinarily contemplated by the words
“exceptional circumstances” is something out of the
ordinary and of an
unusual nature; something which is excepted in the
sense that the general rule does not apply to it; something uncommon,
rare or
different; “besonder”, “seldsaam”,
“uitsonderlik”, or “in hoë mate ongewoon”.
2.
To be exceptional the circumstances must arise out
of, or be incidental to, the particular case.
3.
Whether or not exceptional circumstances exist is
not a decision which depends upon the exercise of a judicial
discretion: their
existence or otherwise is a matter of fact which
the Court must decide accordingly.
4.
Depending on the context in which it is used the
word “exceptional” has two shades of meaning: the primary
meaning is
markedly unusual or specially different.
5.
Where, in a statute, it is directed that a fixed
rule shall be departed from only under exceptional circumstances,
effect will,
generally speaking, best be given to the intention of
the Legislature by applying a strict rather than a liberal meaning to
the
phrase, and by carefully examining any circumstances relied on as
allegedly being exceptional”.
[14]
Sutherland J, in the
Incubeta
Holdings
case
expressed the view that “
exceptionality
must necessarily be fact-specific. The circumstances which are or may
be ‘exceptional’ must be derived
from the actual
predicaments in which the given litigants find themselves.”
[5]
I am in respectful agreement with this view. In this application, the
actual predicament in which the parties find themselves in
is the
fact that at the centre of their dispute is a minor child aged just
under 5 years. Consequently, any decision that may be
arrived at,
whether to stay or to execute the order, will affect the interests of
the minor child and I am enjoined by section
28 (2) of the
Constitution of the Republic of South Africa, 1996 to be mindful of
the paramount importance of her best interest
in this matter.
[15]
The factors that I took into account in my finding on the urgency of
the application are intertwined
with those that are relevant in the
determination of the exceptionality of the circumstances warranting
leave to put into operation
and execution an order which has been
suspended by an application for leave to appeal. Of paramount
importance however is the best
interest of the minor child.
[16]
Although there are divergent views on whether the prospects of
success on appeal are relevant in the
application in terms of section
18 of the Superior Courts Act,
[6]
I am in support of the view that the prospects of success are
relevant. It is obvious, however, that there will be cases wherein
the circumstances dictate that the prospects of appeal are of no
particular relevance as was the position in the
Incubeta
Holdings
case
[7]
.
[17]
The relevant circumstances that in my view have to be taken into
consideration in this application
are the following:
17.1.
The application has concluded an employment contract in terms of
which she has to report for duty in Ireland.
17.2.
She has received a letter from her employer calling upon her to
advise the employer as to steps that she intends to take to report
for work in Ireland no later than the 30
th
April 2022.
17.3.
She has successfully applied for a Critical Skills Employment Permit
which entitles her to enter, reside and work in Ireland and which
expires in April 2023.
17.4.
She has already made arrangements for the education of the minor
child in Ireland, where her sister is also resident.
17.5.
The relocation order, whether or not it is executed with immediate
effect, will have effect on the best interests of the minor child. In
other words, whether or not First Respondent’s appeal
succeeds,
the interest of the minor child will be adversely affected.
17.6.
The order sought to be implemented does not necessarily deprive
the
First Respondent of all contact with the minor child in the event of
its implementation and execution.
17.7.
The Applicant and her family have decided to emigrate to Ireland
and
have no desire to stay in the Republic of South Africa owing to what
they perceive to be lack of opportunities and safety.
[18]
The question is whether those circumstances are exceptional for
purposes of section 18 (1). I am of
the view that cumulatively
considered, especially in the light of the fact that the interests of
the minor child are involved,
these circumstances are indeed
exceptional.
IRREPARABLE HARM TO
THE APPLICANT
[19]
As indicated earlier in this judgement, the event that triggered the
application is the letter written
to the Applicant by her employer
calling upon her to report for duty in Ireland within 4 weeks and
propelled by the First Respondent’s
refusal to allow the
Applicant to leave with the minor child.
[20]
Mr Coetzer argued that this contract of employment is a
once-in-a-lifetime opportunity for the Applicant
and her family and
should it be lost, it will result in a substantial financial setback.
This is the only chance that the Applicant
has to move to Ireland
because if the employment contract is terminated, the Critical Skills
Employment Permit that was issued
also becomes null and void. Counsel
argued that the Applicant and her family will suffer irreparable harm
if the order is not immediately
executed and implemented to allow
them to relocate to Ireland.
[21]
Although Mrs Georgiou argued that the Applicant will not suffer
irreparable harm as she still can find
employment in the Republic of
South Africa based on the critical skills she possesses, I am
satisfied that the Applicant has succeeded
in proving on a balance of
probabilities that she will indeed suffer irreparable harm
contemplated in section 18 (3) if the order
is not implemented
pending the outcome of the application for leave to appeal or of any
further appeal in the event leave to appeal
is refused.
IRREPARABLE HARM TO
THE FIRST RESPONDENT
[22]
In order to determine whether or not the First Respondent will suffer
irreparable harm if the order
of relocation is implemented, the
following factors are relevant:
22.1.
The order which is the subject of the First Respondent’s
application for leave to appeal is to the
effect that upon the
relocation of the Applicant and the minor child to Ireland, the First
Respondent will continue to exercise
his contact rights in terms of
the Children’s Court Order dated 10
th
November 2020
on condition that those rights are exercised in Ireland. The
Children’s Court Order provided that First Respondent
was
entitled to have contact with the minor child every alternative
weekend, one short school holiday to rotate between the parents
and
50% of all long school holidays, Christmas, New Year’s day and
Easter to rotate between the parents. It goes without
saying that
these contact rights were to be exercised within the Republic of
South Africa.
22.2
Personal contact that the First Respondent was entitled to have with
the minor child in terms of the
Children’s Court Order will no
longer be practical.
22.3.
In her report the Family Advocate found that it is indeed important
for physical contact between the First
Respondent and the minor child
to be progressively strengthened as this is beneficial to the minor
child’s psychological
and emotional wellbeing. This finding
accords with the provisions of section 7 of the Children’s Act
38 of 2005.
22.4
Although the Applicant’s application for sole guardianship was
denied on the basis that no cause
existed to deprive the First
Respondent of guardianship, there is a finding that the parties
struggle to communicate in a manner
that nurtures the wellbeing of
the minor child.
22.5
If the order is put into operation, the minor child will relocate to
Ireland, which relocation will
make it impractical, if not
impossible, for the First Respondent and the minor child to maintain
bi-monthly physical contact as
it was the position in terms of the
order of the Children’s Court granted on the 10
th
November 2020.
22.6
The First Respondent and the minor child had only recently extended
physical contact with each other
in terms of the Children’s
Court’s Order and the Order of this court dated the 2
nd
December 2021. If the order is implemented forthwith, and the minor
child relocates to Ireland, the fragile relationship between
the
First Respondent and the minor child would have been adversely
affected by the time the appeal is finalised, if it is eventually
successful.
22.7
Doubtlessly, the minor child’s best interest will be served
both in South Africa, pending the
finalisation of the appeal process,
or in Ireland, if the order is put into immediate operation.
[23]
The immediate and direct consequence of the implementation and
execution of the order will be that
the First Respondent will not be
able to exercise regular physical contact with the minor child.
Although he and the minor child
were entitled to a bi-monthly
physical contact with each other within the Republic of South Africa
in terms of the order of the
Children’s Court, if the order is
put into operation, it would mean that such contact will only be
exercised in Ireland.
Whereas the Children’s Court order
envisaged that this contact be in the Republic of South Africa, the
order appealed against,
on a proper construction thereof, deprives
the First Respondent the right to exercise physical contact with the
minor child wherever
they may be in the world, with the exception
only of Ireland.
[24]
The duty to prove that the First Respondent will not suffer
irreparable harm if the order is executed
rests upon the Applicant.
In his argument Mr Coetzer submitted that this loss of physical
contact which the First Respondent raised
is simply a fact of life
and an occurrence that is bound to happen as there is no law that
forces people in the position of the
parties to stay either together
or in the same country. He argued that the First Respondent and the
minor child will still have
regular voice and video calls with each
other. Mr Coetzer however conceded that the effect of the order, in
particular paragraph
4.1 thereof, is that upon relocation of the
Applicant with the minor, no physical contact can be established
between the First
Respondent and the minor child in any part of the
world, except in Ireland, without such contact constituting a
contravention of
the order. He submitted that in spite of this
predicament, the prospects of appeal on this point will fail as the
Applicant can
apply for the amendment of the order to include other
locations where physical contact may be exercised.
[25]
Mrs Georgiou argued that, contrary to Mr Coetzer’s argument,
the First Respondent’s appeal
should succeed on this point
alone and, as this Court is not sitting as a Court of Appeal, no
amendment to the order can be effected
at this stage. I agree with
Mrs Georgiou regarding the amendment.
[26]
In her report, the Family Advocate points out that although she could
find no evidence of parental
alienation alleged by the First
Respondent, it was clear that the parties’ acrimonious
relationship and lack of proper communication
between them has
resulted in the high parental conflict around the implementation of
First Respondent’s contact rights with
the minor child. This is
the basis whereupon the First Respondent is apprehensive and believes
that the situation will worsen should
the Applicant relocate
immediately with the minor child.
[27]
Sight should not be lost, however, of the fact that in the present
application, the issue is not whether
relocation
per se
is in
the interest of the minor child or that it will irreparably harm any
of the parties. The issue is whether the relocation
order should be
implemented and executed pending the finalisation of the application
for leave to appeal or any appeal. In this
regard, it is worth noting
that the order is not final until the Court of Appeal makes its
pronouncement thereon.
[28]
Mr Coetzer has urged the Court to consider the fact that an appeal
may be a very lengthy process and
it would be to expect too much for
the Applicant’s employer to wait until finalisation thereof in
order for the Applicant
to report for duty in Ireland. Even if that
may be the position, however, if the application is denied and the
execution awaits
finalisation of the appeal, the Applicant will not
be without relief, as the Uniform Rules of Court make provision for
set down
of appeals on urgent basis where circumstances permit.
[29]
For all the reasons set out in the preceding paragraphs, I find that
the First Respondent will suffer
irreparable harm should the order
dated the 18
th
March 2022 be put into operation and
executed.
[30]
In the case of
Incubeta
Holdings (supra)
,
Sutherland J accorded the following meaning to the provisions of
section 18 (3)
[8]
, with which I
agree:
“
The proper meaning
of the subsection is that if the loser, who seeks leave to appeal
will suffer irreparable harm, the order must
remain stayed, even if
the stay will cause the victor irreparable harm too. The discretion
is indeed absent, in the sense articulated
in
South
Cape
case….
What remains intriguing, however, is the extent to which even a
finding of fact as to irreparable harm is a qualitative
decision
admitting of some scope for reasonable people to disagree about the
presence of so-called ‘fact’ of irreparability.”
[9]
[31]
Mr Coetzer called upon this Court, in its capacity as the upper
guardian of all minor children, to
grant an order for implementation
and execution notwithstanding the application for leave to appeal for
the reason that to order
otherwise would negatively affect the best
interest of the minor child.
[32]
I have indeed applied my mind to that and, as indicated in this
judgement, I have found that as the
interests of the minor child will
be affected whether she remains in the Republic of South Africa
pending the finalisation of the
appeal, or she relocates to Ireland,
what I consider to be in her best interest is that the
status
quo
, which may change depending on the outcome of the appeal,
must be maintained as she might suffer more trauma in the event she
settles
in Ireland and has to relocate again to the Republic of South
Africa upon successful finalisation of the appeal.
COSTS
[33]
Generally the costs follow the cause but, considering the fact that
the Applicant is the party who
is vested with the parental rights and
responsibilities with regard to residence and care of the minor
child, whose interest have
had to be considered in the adjudication
of this matter, and the fact that this is a family matter, it would
not be just apply
the general rule and order that Applicant bear the
costs of this application.
ORDER
[34]
In the result, I make the following order:
1.
The application is dismissed.
2.
Each party to pay his/her own costs.
M. S. LITHEKO, AJ
For
the Applicant:
Adv. J C Coetzer
Instructed
by:
Honey Attorneys
Bloemfontein
For
the First Respondent:
Adv. S Georgiou
Instructed
by:
Sheryl Michelow Attorneys
c/o Bezuidenhouts Inc.
Bloemfontein
/bmokhoro
[1]
Case number 3457/2021 is incorrect.
The
correct case number is 3451/2021.
[2]
Act 10 of 2013.
[3]
Incubeta Holdings (Pty) Ltd & Another v Ellis & Another
2014
(3) SA 189
(GJ) at paragraph 16.
[4]
2002
(6) SA 150 (C).
[5]
At
paragraph 22.
[6]
In
Incubeta Holdings, Sutherland J was of the view that prospects of
success play no role. However, in Minister of Social Development
Western Cape & Others v Justice Alliance of South Africa &
Another (20806/2013)
[2016] ZAWCHC 34
(1 April 2016), Binns-Ward J,
with whom Fortuin and Boqwana JJ concurred, held that prospects of
success on appeal are a relevant
factor to be considered. The latter
view was approved in University of the Free State v Afriforum and
Another
2018 (3) SA 428
(SCA) at paragraph [15].
[7]
Supra.
[8]
Of the
Superior Courts Act 10 of 2013
.
[9]
At
paragraph [24].