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[2019] ZAGPPHC 138
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Central Authority (The Republic of South Africa) and Another v P.H (150/2019) [2019] ZAGPPHC 138 (9 May 2019)
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IN THE HIGH COURT OF SOUTH
AFRICA
GAUTENG
DIVISION, PRETORIA
CASE NO: 150/2019
9/5/2019
In
the application for leave to appeal between:
THE CENTRAL AUTHORITY
(THE
REPUBLIC OF SOUTH AFRICA)
FIRST APPLICANT
L[….]
D[….]
SECOND APPLICANT
and
P[….]
H[….]
RESPONDENT
JUDGMENT
APPLICATION FOR LEAVE TO APPEAL
COLLIS J:
[1]
In the present application, the
respondent Ms H[….], is seeking leave to appeal the order
[1]
wherein this Court, ordered the forthwith return of the minor child
(Ms E[….] D[….], to the jurisdiction of Luxembourg.
The
main application was brought in terms of the Hague Convention on the
Civil Aspects of International Child Abduction.
[2]
[2]
The application for leave to appeal is
sought in terms of the provisions of section 17(1) (a)(i) and section
17 (1) (a) (ii) of
the Superior Court's Act, No 10 of 2013. The
respondent contends that the appeal would have a reasonable prospect
of success and
that there is a compelling reason why the appeal
should be heard.
[3]
A court in considering an application
for leave to appeal must be persuaded with a measure of certainty
that another court will
differ from this court's judgment to be
appealed against.
[4]
The objectives of the Convention is to
secure the prompt return of children wrongfully removed to or
retained in any contracting
state; and to ensure that rights of
custody and access under the law of one Contracting State are
effectively respected in another
Contracting State.
[3]
[5]
The Constitutional Court, in the decision H v Fetal Assessment
Centre
[4]
expressed a view in para [64] as follows:
"In South Africa, in addition
to section 28 (2) of the Constitution, the common law principle that
the High Court is the upper
guardian of children obliges courts to
act in the best interest on the child in all matters involving the
child. As upper guardian
to all dependent and minor children, courts
have a duty and authority to establish what is in the best interests
of children. Notably,
in Mpofu this Court endorsed the approach in
Kotze v Kotze:
"The High Court sits as upper
guardian in matters involving the best interests of the child (be it
in custody matters or otherwise),
and it has extremely wide powers in
establishing what such best interest are. It is not bound by
procedural strictures or by the
limitation of evidence presented, or
contentions advanced or not advanced, by respective parties". "
[6]
The respondent in her application had listed 28 grounds of appeal,
with counsel appearing
on behalf of the respondent having filed
extensive Heads of Argument. In this regard, the first applicant had
also filed a short
note in opposing the application. Similarly, the
second applicant presented opposing arguments.
[7]
In essence counsel on behalf of the
respondent argued, that this court in broad terms had failed to
adjudicate this matter with
a child-centred approach; failed to bear
in mind the provisions of the Children's Act and that it failed to
consider a defence
raised with substance in terms of Article 13(b) of
the Hague Convention.
[8]
In addition to this, counsel had argued
that this Court considered the matter with reference to the Sonderup
v Tondelli & Another
2001 (1) SA 1171
(CC) matter which was
decided before all the provisions of the Children's Act , Act 35 of
2008 came into force.
[9]
The first applicant had argued that the
application for leave to appeal should not succeed. By allowing the.
responded leave to
appeal this court's decision, counsel submitted
will not result in a just and prompt resolution of the all the
issues, more specifically
the custody dispute between the parties as
envisaged in terms of section 17(1)(c) of the Superior Courts Act.
The custody dispute
remains pending within the jurisdiction of the
Luxembourg Courts and still needs to be finalised. It is for this
reason that counsel
contended that the application should fail.
[10]
On behalf of the second applicant Ms Liebenberg had argued, that it
is unlikely that another
court would come to a different decision,
and therefore the application for leave to appeal should be refused.
She submitted that
in this regard, the respondent resorted to
self-help in violation of two court orders and throughout her
answering affidavit had
initially maintained that if so ordered by
this Court, that she would accompany the minor to Luxembourg.
Furthermore, that she
changed this position on the eve of the hearing
of the application when she was permitted to file a further
supplementary affidavit,
which affidavit only considers her own
interest and fails to take into account the rights and interest of
the father towards his
child.
[11]
Ms. Van Der Westhuizen, the minors'
court appointed curatrix, also expressed an opinion, that it would
not be in the best interest
if the minor is not returned to the
jurisdiction of Luxembourg as ordered by this Court.
[12]
Having carefully considered the grounds
of appeal together with the arguments presented and more importantly
taking into account
the judgment of this Court, I am not persuaded
that the appeal would have a reasonable prospect of success nor does
there exist
a compelling reason why the appeal should be heard. The
judgment of this Court had regard to the provisions of the Children's
Act,
the previous case law on point and importantly the evidence
presented before this Court, by way of affidavits and reports and
concluded
that the minor should be returned forthwith, as it would be
in the best interest of the minor.
ORDER
[13]
In the result, the following order is
made:
13.1.
The application by the respondent (Ms.
H[….]) for leave to appeal against the order of 15 March 2019,
is accordingly refused
with costs.
C. J. COLLIS
JUDGE GAUTENG DIVISION
PRETORIA
APPEARANCES:
For
the First Applicant:
Adv. C. Woodrow
Instructed
by:
The State Attorney PRETORIA
For
the Second Applicant:
Adv. S. Liebenberg
Instructed
by:
Du Randt Du Tait Pelser Attorneys.
For
the Respondent:
Adv. C. Van Schalkwyk
Instructed
by:
Couzyn Hertzog & Horak Inc.
Curatrix
Ad Litem:
Adv. L. Van Der Westhuizen
Date
of hearing:
06 May 2019
Date
of judgment:
09 May 2019
[1]
Judgment Collis
J
delivered 15 March 2019
[2]
Section 275
of the
Children's Act 28 of 2005
, sets out the Hague
Convention is in force in South Africa subject to the provisions of
the
Children's Act
[3]
Article 1 of the Convention
[4]
2015 (2) SA 193
(CC)