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[2021] ZAGPPHC 383
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B[....] v B[....] (16606/2015) [2021] ZAGPPHC 383 (18 June 2021)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been redacted
from this document in compliance with the law and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
Number
: 16606/2015
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
DATE:
18 -06- 2021
In
the matter between:
D
B[…] P
K
APPLICANT
Passport
No: […]
And
D
B[…] M C
J
RESPONDENT
Identity
Number: […]
JUDGMENT
KUBUSHI
J
Delivered:
This judgment was handed down electronically by
circulation to the parties’ legal representatives
by e-mail.
The date and time for hand-down is deemed to be 10h00 on 18 June 2021
INTRODUCTION
[1]
This is an application wherein the applicant, P K D B[…] seeks
variation of
an urgent order granted in 2015 so as, inter alia, to
allow the applicant to travel to Thailand with the minor child, M’
D B[…], and to limit physical contact between the minor child
and the respondent M C J D B[…], pending a forensic
investigation by the Family Advocate.
[2]
The initial relief sought by the applicant was in respect of the
variation of the
order granted in 2015. However, because of an
allegation of abuse of the minor child which occurred during one of
his visits to
the respondent, the notice of motion was later amended
to include a prayer to limit the physical contact between the
respondent
and the minor child.
[3]
Although the relief sought by the applicant in the main relates to
the variation of
the order granted in 2015, however, in argument in
court the applicant sought, specifically, an order allowing the minor
child
to travel with the applicant abroad, and costs to be paid by
the respondent in respect of this application. The applicant, also,
provided a Draft Order in which she sought to state the travel
arrangements and/or itinerary of the trip in Thailand, so that the
respondent should, at all times, be aware of the whereabouts of the
minor child.
[4]
The respondent is opposing the application (in respect of the initial
relief sought),
inter alia, on the following basis:
4.1
he fears that the applicant will not return from Thailand with the
minor child;
4.2
he believes that the applicant will change the name of the minor
child so as to avoid the
minor child being traceable;
4.3
in light of the above, he believes that he is not unreasonably
withholding consent.
[5]
Nevertheless, when arguing the matter in court, the respondent relied
mainly on his
belief that the applicant will not return with the
minor child if she were allowed to travel with the child abroad.
[6]
The applicant disputes the respondent’s belief as unfounded
since in the first
place, the applicant is now firmly established
within South Africa; secondly, the minor child’s primary
residence is with
the applicant, and the respondent has not had any
physical contact with the minor child since February 2020; and
thirdly, the minor
child is older (he was […]months at the
time the urgent application was brought in 2015).
[7]
It should be noted that the respondent appeared in court in person
without any legal
representation. He confirmed that he was prepared
and will be able to conduct the matter on his own.
[8]
The application was heard virtually, and not in open court, as
provided for in this
Division’s Consolidated Directives re
Court Operations during the National State of Disaster issued by the
Judge President
on 18 September 2020.
FACTUAL
MATRIX
[9]
The parties were married to each other in 2013. The minor child was
born of such marriage
in […]. In late 2013 early 2014 the
parties visited Thailand with the minor child. The marriage turned
sour and the parties
separated. The applicant left the matrimonial
home with the minor child. In January 2015 the respondent instituted
divorce proceedings
against the applicant, which proceedings are
still pending.
[10]
In March 2015 the respondent launched an urgent application against
the applicant to, inter alia,
attain primary residence of the minor
child and to prevent the applicant from travelling to Thailand with
the minor child. The
Family Advocate was ordered to investigate the
matter. The Family Advocate's Report recommended contact between the
minor child
and the respondent.
[11]
On 1 April 2015 the respondent was interdicted from removing the
minor child, M’ d B[…],
from the borders of the Republic
of South Africa, pending the finalisation of the divorce action
between the parties. The residency
of the minor child was awarded to
the applicant, with removal rights to the respondent for full
weekends.
[12]
In October 2019 the applicant approached court on an urgent basis for
the variation of the court
order granted on 1 April 2015. The matter
was struck from the roll for lack of urgency and was later placed on
the opposed motion
roll on 14 February 2020.
[13]
On 3 August 2020 the Family Advocate was requested to investigate the
issue of the minor child
being able to travel abroad with the
applicant as well as the allegations of abuse of the minor child by
the respondent as raised
by the applicant. The Family Advocate issued
an interim report which stated, amongst others, that –
“
I,
the undersigned, SALOME ANTOINETTE LANGEVELD-GOOSEN, declare as
follows:
1.
I
am a Family Advocate, duly appointed to the High Court of South
Africa, Gauteng Division, Pretoria, in terms of the Mediation
in
Certain Divorce Matters Act, 24 of 1987 since May 1993.
2.
2.1
On 3 August 2020 the Honourable Court requested this office to
investigate the issue of the minor child,
being able to travel abroad
with the Applicant as well as the allegations of abuse of the minor
child by the Respondent as raised
by the Applicant.
2.2
This follows a Court Order dated 1 April
2015, where the Respondent is interdicted from removing the
minor
child, M’ d B[…], from the borders of the Republic of
South Africa, pending the finalisation of the divorce
action between
the parties. The residency of the minor child was awarded to the
mother, with removal rights to the Applicant for
full weekends.
2.3
The minor child born out of the marriage is:
(i)
M[…]’ —[…]years ([…]).
3.
I
requested Mrs A. Botha, a registered social worker with 21 years’
experience and appointed as a Family Counsellor since
January 2021,
to assist me with the enquiry into the best interests of the minor
child.
4.
4.1
During the joint interview with the parties,
it transpired that the minor child's contact with the
Respondent was
suspended by the Applicant in February 2020, due to the alleged
physical abuse of M[…]’ by the Respondent.
The
Respondent denied the allegation and indicated that he has never
raised a hand on M[…]’, nor his girlfriend. The
Applicant confirmed that M[…]’ was removed by him on
alternate weekends since 2015 before all physical contact was
suspended in February 2020 by a domestic violence Court Order. The
Applicant confirmed that the Respondent has only telephonic
contact
with M[…]’ as directed by the Domestic Violence Court
Order.
4.2
The Respondent requested that his contact
with M[…]’ must be re-instated, while the Applicant
wants contact with M[…]’ to be supervised by her.
5.
The
minor child was individually interviewed. He indicated that he was
happy to visit his dad before L[…] came along. He
portrays his
father in a very negative light and signs of indoctrination by the
Applicant is present. M[…]’ indicated
physical
altercation between his father and L[…] during his visits with
his father.
6.
The
following information is needed to finalise the investigation:
6.1
Final report of Mrs Johnson [the
psychologist].
6.2
A school report of the minor child.
6.3
Alleged physical abuse of the minor child.
6.4
An interview with L[…], girlfriend of
the respondent.
7.
I
am not in a position to make a recommendation in this matter, without
the outstanding information.”
[14]
The matter was previously before Lingenfelder AJ during August 2020
at which hearing the matter
was postponed sine die in order to give
the respondent, an opportunity to file his Heads of Argument and
Practice Note, and for
the Family Advocate to urgently investigate
and file a report. An interlocutory application compelling the
respondent to file his
Heads of Argument and Practice Note was
brought and an order thereto granted on 12
March 2021.
The respondent failed to file the said documentation.
[15]
On 10 May 2021, the matter was before KOLLAPEN J, who postponed it to
a case management meeting
on 20 May 2021. On the said date, KOLLAPEN
J held the case management meeting virtually between the parties
whereat the following
order was granted:
15.1
the matter was postponed to the opposed motion roll of 07 June 2021;
15.2
the psychologist Collins Johnson's report was to be provided to the
Family Advocate;
15.3
the Family Advocate was to be informed that the matter was proceeding
on the roll of 07 June 2021 and that
the Family Advocate be urged to
attempt to finalise its report before then; and
15.4
costs were reserved.
[16]
On 4 June 2021, the Family Advocate issued a second interim report
which stated the following:
“
I,
the undersigned, SALOME ANTOINETTE LANGEVELD-GOOSEN, declare as
follows:
1.
I
am a Family Advocate, duly appointed to the High Court of South
Africa, Gauteng Division, Pretoria, in terms of the Mediation
in
Certain Divorce Matters Act, 24 of 1987 since May 1993.
2.
I
submitted an interim report dated 4 May 2021 regarding the
outstanding information needed to finalise the investigation into the
best interests of the minor child:
M[…]’
— […]years ([…]).
3.
I
requested Mrs A. Botha, a registered social worker with 21 years'
experience and appointed as a Family Counsellor since January
2021,
to assist me with the enquiry into the best interests of the minor
child.
4.
4.1
On 20 May 2021 I was informed by the
Applicant's attorney that the matter was postponed to 7 June 2021,
after a case meeting before The Honourable Justice Kollapen on 20 May
2021. This date was never discussed with me or the Head of
the
office.
4.2
I was never informed of the case meeting,
although I submitted an interim report on 4 May 2021
4.3
The report of Mrs. C Johnson, educational
and counselling psychologist, was made available to me on
the same
day.
4.4
I responded on 24 May 2021 and my letter is
attached hereto marked Annexure "A"
4.5
I received the school report from Hurlyvale
Primary School regarding M[…]’, the minor
child, on 20
May 2021.
5.
5.1
As indicated in the interim report, the
alleged physical abuse of M[…]’ by the Respondent,
and
an interview of L[…], girlfriend of the Respondent are still
outstanding. There is no information available regarding
the proposed
vacation in Thailand by the Applicant and the minor child.
5.2
It would be necessary to facilitate a round
table conference with the experts, before a final recommendation
can
be submitted.
6.
To
submit recommendations based on only partially obtained information
may be detrimental to the best interests of the minor child.
Therefore, recommendations made by this Office must be based on all
the available information and I am clearly not in a position
to make
any recommendation without the outstanding information as indicated.”
ANALYSIS
[17]
From the reasons that follow hereunder, I am of the view that the
application should not be granted.
[18]
In the first place, the relief sought by the applicant in court is
not the same as that sought
in the notice of motion. It is common
cause that the relief that the applicant seeks in the notice of
motion is for an order to
vary the Court Order granted on 1 April
2015 and in addition an order limiting the physical contact between
the minor child and
the respondent pending the Family Advocate’s
final report, in that regard.
[19]
It is trite that a court would not grant a relief that is not sought
in the papers as this would
be prejudicial to the other party who was
not prepared for such relief and would have come to court not
prepared.
[20]
The applicant’s proposition that the court should grant such
relief using its inherent
powers as the upper guardian of children
and find it to be in the best interest of the minor child to travel
with the applicant
to Thailand, is not sustainable.
[21]
Secondly, there is no evidence to establish that it is in the best
interest of the minor child
to travel with the applicant to Thailand.
The applicant’s reliance on the report of Colleen Johnson, the
psychologist, which
recommended that the minor child should travel,
does not assist her case.
[22]
It should be noted that the report that is required by the court is
that of the Family Advocate.
It is the Family Advocate that requested
to be provided with the report of the psychologist in order to
evaluate it together with
other reports and make a recommendation to
the court. This is evident also in the court order granted by
Kollapen J, wherein he
ordered that the report of the psychologist be
referred to the Family Advocate and that the family Advocate be
informed that the
matter was to be heard on 7 June 2020 and in that
regard the Family Advocate to be urged to provide the final report by
that date.
However, the Family Advocate having been given very short
notice could not compile the requested report but filed a second
interim
report wherein it is explained why the final report has not
been finalised. In particular, the Family Advocate could not complete
the report because not all the information requested in the first
interim report had been provided.
[23]
Lastly, the main relief sought in the notice of motion is to vary the
court order of 1 April
2015. In her own version when arguing in
court, the applicant contended that she was not certain whether the
said court order has
expired or is still in existence. The
applicant’s submission is that both the applicant and the
respondent laboured under
the understanding or they believed that the
court order exists, hence the court must also accept that the court
order exists.
[24]
I do not agree with that proposition. The existence of a court order
is factual. It either exists
or it does not exist. It cannot exist
because the parties believe that it exists. Even then, these
allegations are not contained
in the applicant’s papers but
were presented from the bar – giving evidence from the bar.
CONDONATION
[25]
The applicant filed the replying affidavit out of time and has
applied for condonation which
is unopposed. Having considered the
condonation application, it ought to be granted.
ORDER
[26]
In the premises I make the following order
1.
The condonation application by the applicant is granted.
2.
The application is postponed sine die pending the final report of the
Family
Advocate.
3.
Any of the parties is granted leave to approach court on the same
papers immediately
the report of the Family Advocate is available.
4.
No order as to costs is made.
E.M
KUBUSHI
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
Appearance:
APPLICANT
COUNSEL
: ADV D BLOCK
Applicant’s
Attorneys
: DI SIENA ATTORNEYS
Respondent’s
Counsel
: Personal representation
Respondent’s
Attorneys
: Unknown
Date
of hearing
: 10 June 2021
Date
of judgment
: 18 June 2021