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[2021] ZAMPMBHC 25
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F.W v S.W (2003/2020) [2021] ZAMPMBHC 25 (6 July 2021)
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Certain
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(MPUMALANGA
DIVISION, MBOMBELA)
CASE
NO: 2003/2020
(1) REPORTABLE: NO
(2) OF INTEREST TO
OTHER JUDGES: NO
(3) REVISED: YES
SIGNATURE:
DATE: 06/07/2021
In
the matter between:
F[...]
W[...]
Applicant
and
S[...]
W[...]
Respondent
JUDGMENT
MASHILE
J:
[1]
On 30 June
2020, an urgent application between the parties herein served before
this Court.
The relief sought was formulated in two parts, Part A and B
.
Part A was
sought on urgent basis and it reads:
1.
"
2.
That
Respondent is temporary interdicted from relocating with the minor
children, alternatively cause the minor children from relocating
from
the jurisdiction of Mbombela, Mpumalanga Province to Stellenbosch,
Western
Cape
or any other Province, pending the adjudication of the best interests
of the minor
children; [SIC]
3.
That clinical
psychologist, Dr Robyn Fasser, be appointed to investigate the best
interests of the minor children, and in doing
so, recommending on the
intended
relocation to Stellenbosch, Western Cape, or any other province;
4.
That the
Applicant and the Respondent cooperate and participate in the
assessment by Dr Fasser in order to give effect to prayer
3 supra;
5.
That the
Applicant and the Respondent are jointly responsible for the payment
of the account of Dr Fasser, excluding individual
consultations
between Dr Fasser and the Applicant and the Respondent individually,
the
costs
of the latter consultations, to be paid individually; [SIC]
6.
That Part B is
postponed sine die;
7.
That the costs
of Part A be paid by the Respondent on the punitive scale as between
attorney and own client, in the event of opposition;
8.
"
[2]
Part B reads
as follows:
"1.
That, in the event of the relocation not being in the best
interests of the minor children, that the
Respondent be interdicted
from removing the minor children from the jurisdiction of Mbombela,
Mpumalanga Province for relocation
purposes;
2.
That, in the
event of 1, and the Respondent wishing to relocate from the
jurisdiction of Mbombela, Mpumalanga Province, that the
residency and
care of the minor children be awarded to the Applicant;
3.
That the costs
of Part B be paid by the Respondent on the punitive scale as between
attorney and own client, in the event of opposition;
4
.
"
[3]
Negotiations
that ensued on 30 June 2020 between the parties culminated in a
settlement
agreement, which was reduced to the following order:
"
1
.
Part B is
postponed sine
die;
2.
The issue of
urgency and costs of Part A are reserved for adjudication together
with Part B of the application;
3.
Dr Lynette
Roux (should she for whatever reason become incapacitated, her
nominee, the latter whom shall not be Dr Hatzemberg or
Dr Fasser) is
hereby
appointed to investigate the best interest of the minor children, and
in doing so,
recommending on the intended relocation of the Respondent with the
minor children to the Western Cape
;
[SIC]
5
.
…..
6
.
…..
7.
…
...
8.
…
..
9.
…..”
[4]
Although the
court order provided that Dr Lynette Roux ("Dr Roux") would
furnish
her
report on 31 October 2020, she only did so on 23 November 2020 but
this is of no moment as neither party made it an issue. Following
the
provision of Dr Roux's report to the parties, the
Applicant agreed that her recommendation
be
incorporated into a court order in respect of Part B of the
application. As a result, the Respondent together with the minor
children, relocated to Stellenbosch, Western Cape Province in
December 2020.
[5]
One would have
thought that the settlement reached between the parties in respect of
the recommendations of Dr Roux would have settled
this entire matter.
Ordinarily and
objectively, the differences between the parties are so
inconsequential vindicating anyone's belief that the distance
between
them should have been narrowed thereby allowing the possibility of an
amicable settlement. Besides, on 27 May 2021, the
date on which this
application
was heard,
this Court, in line with the provisions of Section 6(a) of the
Children's Act 38 of 2005 ("the Act"), afforded
the parties
time to reflect on their differences and to determine if the rift
remained as huge. When they returned, the distance
between them was
still unchanged.
[6]
Tersely, now
that the Respondent has relocated with the minor children, the
financing of the contact rights of the Applicant have
become an
issue. In other words, who of the two parties should be liable for
the costs of travel of the minor children whenever
they visit their
father, the Applicant, in Mbombela.
[7]
On the one
hand, the Respondent is willing to pay for the minor children's
visits to
the
Applicant as long as they do so via a flight to OR Tambo
International Airport
in Gauteng
.
The
Respondent asserts
that the route that
she has chosen works out less prohibitive for her. If they are to fly
directly between Cape Town and Mbombela,
the Applicant must pay for
their return tickets. Conversely, the Applicant insists that it is
beside the point whether or not they
fly via or Tambo International
Airport or directly to Mbombela, the Respondent must be
liable
to pay for
their flight expenses.
[8]
The reasoning
behind the
Applicant's
suggestion
of flying
directly
to Mbombela
from
Cape Town is that he will be able to spend more time with the minor
children
whereas
were they to
fly via OR Tambo International, he will hardly spend a full
day with them.
Besides
and
most importantly,
he argues, is
that the
trip
via OR
Tambo
International will be arduous. The Applicant argues further that the
spirit in which he concluded the settlement agreement
permitting the
minor children to
relocate
to
Stellenbosch
with the
Respondent
was
that he would
be afforded
a
chance to
exercise his right of access to the minor children for purposes of
developing
their
relationship
with him and
that the Respondent
would
be
responsible
for the costs of such contact.
[9]
It appears
that the Applicant construed the recommendations of Dr Roux to mean
that the minor
children would fly directly from Cape Town to Mbombela. However,
this is not
the
interpretation
assigned to
the recommendations of Dr Roux by the Respondent. In an attempt to
reduce the exhaustion that might be experienced by
the minor children
travelling via OR Tambo International and possibly to curtail
travelling expenses, the Applicant modified his
visitation rights by
reducing them to holiday contact instead of every alternate weekend.
The slight shift in the Applicant's intransigence
notwithstanding,
the rift between the parties
is
difficult to
eliminate. Thus, their respective positions on the subject remains
unchanged requiring the
intervention
of this Court.
[10]
When
confronted
with a matter that
concerns minor children, a court is enjoined to
have regard to
the provisions of Section 28(2) of the Constitution of the Republic
of South
Africa, which stipulates that 'a child's best interests are of
paramount importance in every matter concerning the child.'
Section
28 of the Constitution finds expression in the Act. Section 9 is
headed, Best interests of child paramount.
The Section
provides that:
"In
all
matters concerning the care, protection and well-being of
a
child the
standard that the child's best interest is of paramount importance,
must be applied."
[11]
Section 2 of
the Act lists objects and Subparagraph (i) provides that one of the
objects is
'generally,
to promote the
protection, development and well-being of children.' Section 6 lays
down that in any matter concerning a child:
(a)
an approach
which
is
conducive
to
conciliation
and
problem-solving
should
be followed
and a confrontational approach should be avoided; and
(b)
a delay in any
action or decision to be taken must be avoided as far as
possible."
[12]
Section 7
deals with factors that must be considered whenever one of the
provisions of the Act requires the application of best
interest of
child standard. Of
particular
interest
in this
Section are the provisions
of
Subparagraph
(d)(i)
and (ii),
which provides that:
"(d)
the
likely
effect
on
the
child
of
any
change
in
the
child's
circumstances,
including the
likely effect on the child of any separation from-
(i)
both or either
of the parents; or
(ii)
any brother or
sister
or
other
child,
or any other
care-giver
or
person
with
whom the child has been living;"
[13]
While the
dispute is between the two parents, it
manifestly concerns the minor children. As
such, the
parties' difference of opinion on who should pay for the travel costs
of the children attracts the application of the
Children's Act as
one
that gives
life to Section 28 of the Constitution. The question is, which of the
two routes between Cape Town and Mbombela resonates
with the best
interests of the minor children? Of course this question cannot be
answered without regard to the costs attaching
to each route. The
recommendation that the children be flown every other weekend
embodied in the report of Dr Roux would come at
an immense cost, it
being irrelevant which of the two routes the parties ultimately
choose.
[14]
Before
deciding on which route would be more expensive, it will be useful to
first settle which of the two routes will be less exacting
on the
minor children. That the
route going
through OR Tambo International will be more demanding for the minor
children should not be a contentious issue in my
opinion. If the
minor children take that route, they will not only add one stop to
their journey but they will be extending the
distance to be travelled
by about 400 Kilometres. Additionally, the time of arrival at
Mbombela will indubitably increase significantly
.
A flight from
Cape Town
to
OR Tambo International is approximately
2 hours. A
travel by vehicle from there to Mbombela will take between 3 and a
half to 4 hours.
[15]
Contrast the
above with flying straight from Cape Town to Mbombela. Firstly, the
minor children
will exclude OR Tambo International before arriving at Shandon Eco
Reserve Estate where the Applicant lives in Mbombela.
Secondly the
travelling from Kruger International in Mbombela should not take them
more than 30 minutes. It is immediately obvious
that a direct flight
will take away the stress of travelling through a busy airport, OR
Tambo
International.
[16]
Furthermore,
it will
reduce
travelling by road considerably, which is not only trying but will
expose them to perils of the road. I do not think that
it takes a lot
to realise
that
travelling
via
OR Tambo International will certainly reduce the time the Applicant
will firstly, spend with the minor children
.
Secondly,
when he gets to see
them, they
will be drained from the road travel. Given the above, it is
inevitable to
conclude that
a preferred route that will serve the best interest
of the minor
children is a direct flight.
[17]
Turning to the
costs of the travel. If the recommendation of Dr Roux, assuming that
she meant a return journey via OR Tambo International,
the costs
would be far higher per annum because they would be for three
passengers plus a hired vehicle for the weekend. That recommendation
is now off the table because the Applicant has agreed not to insist
on contact every
alternate
weekend
.
Instead, he
has opted to see the minor children every school holiday save that
in
December-January,
he
will
see them for half the school holiday
.
[18]
Paying for
return tickets every second weekend between Cape Town and Mbombela
plus a hired vehicle for the weekend must be expensive
than direct
return tickets between Cape Town and Mbombela four times per annum
without the expense of a hired vehicle. To illustrate
this point, it
is necessary to
reproduce
what the
Applicant put before this Court. I need to add that this Court did
not have
the
benefit of flight costs from the Respondent in consequence of which
I
found myself
bound to accept those that were supplied by the Applicant.
[19]
I am mindful
that the relationship between the Applicant and the parties' eldest
daughter is estranged, which will probably require
an expert to
restore it. For purposes of comparing the costs of the two routes,
however, I shall assume that the disaffected relationship
between
father and daughter will soon be mended and that both minor children
will visit the Applicant. I accept that flying between
Cape Town
International and OR Tambo International will cost
on average an amount of R2
000.00 per
round
trip
for each child. On the scenario
that the minor
children will
fly
every second week, as recommended by Dr Roux, it means that there
being 52 weeks in a year, the minor children would each visit
the
Applicant 26 times. The number of visits should, however, be reduced
by approximately 5 as they do not take into consideration
the school
holidays,
which
are roughly
10 weeks in a
year.
[20]
Given that
background, I can accept that the visit per child will reduce to 21.
The cost per annum for a trip via OR Tambo will
therefore amount to
R42 000.00 per child plus the cost of car hire
.
Contrast this
with the same number of visits but flying directly between Cape Town
and Mbombela, the amount distends to R128 100
.
00.
Thus, by any standard,
a direct
flight would be too costly for either party.
However, if
the concession of the Applicant that the minor children will visit
him four times per annum is taken into consideration,
the costs of a
direct flight per return trip shrinks significantly.
[21]
If a return
trip is R6 100.00 for each child, then 4 visits per annum translate
into R24 400.00 per annum. The concession has as
such, made a direct
flight the most attractive and the best route both in terms of costs
and distance of travel. The minor children
will not be as exhausted
when they arrive in Mbombela as they would if they travel through OR
Tambo International. Moreover, the
amount of time that they will
spend with the Applicant improves remarkably.
[22]
If the Respondent was
prepared to spend about R42 000.00 plus the costs of
car
hire for each
weekend that she accompanied
the minor
children to
the Applicant
, I
fail
to understand why she would not subsidise the costs of the Applicant
for flying the
minor
children
every
school
holiday
directly
to
Mbombela.
Accordingly,
it
will
be
appropriate
to direct
that the
Respondent
should
pay
over
to
the Applicant
the amount
that she
would
have spent
for
each child
over to
the
Applicant.
That amount must exclude her own costs of flying and those of car
hire
.
I
must emphasise
that the
amount
is
not any amount that
she would
not have paid
in any event.
[23]
It is now
opportune to address the question of urgency and the reserved costs
.
I find it
bizarre and inexplicable that the parties deferred a decision on
urgency and
reserved costs
for another court. These are issues that should have been properly
dealt with by the previous court as they were
fully canvassed before
it. It is totally
inappropriate
that this Court is now burdened with determination of matters that
were not raised before it.
[24]
The above
said, I turn to the urgency of the matter as argued last year. In
short, the mere fact that the parties settled the matter
brought
urgently is an indication that both parties had accepted that it was
indeed urgent. The matter could have been resisted
but the parties
saw wisdom in settling
it,
which must be
commended because that is what the Act implores them to do in these
situations. Thus, it is just and equitable that
there be no cost
order.
[25]
Coming to the costs
of the 27
th
of
May 2021. The Applicant has been largely successful. For that reason,
I see no need to depart from the established principle
that costs
must follow results. I note that the Applicant had asked for attorney
own client costs. I do not think that costs at
any punitive scale,
attorney own client or attorney client, can be justified on the facts
of this matter. In the circumstances,
the Respondent
will be liable
for the costs of the Applicant
as at the
scale between party and party.
ORDER
[26]
Given the
above, I am constrained to direct as follows:
1.
Part A of the
notice of motion heard on 30 June 2020 is declared to have
been urgent
and each party is to bear his or her costs relating thereto;
2.
The Respondent
is ordered to pay the cost of a direct flight flying between
Cape Town and
Mbombela for both minor children four times per annum;
3.
The Respondent
shall be liable for the costs of the Applicant on the scale
as between
party and party.
B
A MASHILE
JUDGE
OF THE HIGH COURT OF SOUTH
AFRICA
MPUMALANGA
DIVISION, MBOMBELA
This
judgment was handed down electronically by circulation to the parties
and/or parties' representatives by email. The date and
time for
hand-down is deemed to be 06 July 2021 at 10:00.
APPEARANCES:
Counsel
for the Applicant:
Adv
M Fabricius
Instructed
by:
Schoeman
Morman Inc
Counsel
for the
Respondent:
Adv
R Ferreira
Instructed
by:
Eunanda
Fourie Inc
Date
of Hearing:
27
May 2021
Date
of Judgment:
06
July 2021