About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2019
>>
[2019] ZAGPPHC 1000
|
|
F v F (93463/2016) [2019] ZAGPPHC 1000 (26 July 2019)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED.
CASE NUMBER: 93463/2016
26/7/2019
In
the matter between:
F[….],
L[….]
Applicant
and
F[….],
D[….]
P[….]
Respondent
In
re
the matter
between:
F[….],
D[….]
P[….]
Plaintiff
and
F[….],
L[….]
Defendant
REASONS
FOR JUDGMENT
LE GRANGE AJ:
[1]
Before
me was an application, brought under
section 27(1)(b)
of the
Superior
Courts Act 10 of 2013
, in terms whereof the applicant/defendant seek
to have the action, instituted by the respondent/plaintiff in this
court on 30 November
2016, transferred to the Gauteng Local Division,
Johannesburg.
[2]
On
date of hearing of the matter, I found that it would not be in the
interest of justice if the matter is further delayed and hence
granted my judgement forthwith. The application for transfer was
dismissed with cost of two counsel. Herewith are my reasons for
judgement:
[3]
The
relevant portion of
Section 27(1)
of the
Superior Courts Act
provides
:
"If any proceedings have
been instituted in a Division or at a seat of a Division and it
appears to the court that such proceedings
-
(a)
... ;
or
(b)
Would be more conveniently or
more appropriately heard or determined
-
(i)
at any seat of that Division; or
(ii)
that court may, upon
application by any party thereto and after hearing all other parties
thereto, order such proceedings to be
removed to that other Division
or
seat,
as
the case may be."
(Own emphasis)
[4]
Applicant (per N Breytenbach):
is of the view that the
transfer should be granted for the following reasons:
1.
There are currently two matters before
two courts:
(i)
the
matter instituted on 13 April 2016 in the Gauteng Local Division (the
Jhb-matter) in terms whereof the respondent seeks the
setting aside
(based on misrepresentation) of a settlement agreement entered into
between the parties hereto in December 2014,
following a breakup
between them, dealing with a wide range of issues, Including all
property issues between the parties, as well
as a parenting plan with
regards to care, contact, and maintenance pertaining to the parties'
minor child (Lyla Rose, born on 26
April 2010).
(ii)
the
matter instituted on 30 November 2016 in the Gauteng Division (the
Pta-matter) in terms whereof respondent seeks an order restoring
contact with the minor child which is met by a counter claim by
respondent, in essence for the opposite relief.
2.
Both
matters resolve around and are based upon the same settlement
agreement, the same dispute, the same conduct and the same incidents
between the parties. Further as respondent, in the Jhb-matter, seeks
the setting aside
inter al/a
of
the maintenance provisions, as contained in the settlement agreement
and the repayment of the amount of R 3.5 million without
any tender
to maintenance, it reflects on his inability to be granted parental
rights and responsibilities and hence a cardinal
factor which must be
taken into account by the court adjudicating the claim for contact.
3.
It
would be more convenient and/or more appropriate that the matters be
dealt with simultaneously (an application for consolidation
to follow
the granting of the transfer, the entitlement thereto not being
common cause) as to obviate any unnecessary legal costs
and the
duplication of evidence.
4.
The
family advocate aside, some of the experts, the legal representatives
and the parties are based in, or conduct business from
Johannesburg,
which also makes it more convenient for the matter to be heard in
Johannesburg.
[5]
Respondent
(per M Feinstein
&
J
Burger):
in opposition of the relief
claimed, contended that:
1.
The
transfer would inevitably result in undue delay as the entire process
conducted this far by the office of the family advocate,
Pretoria
(which started in April 2017, now two years in the making) need to
start afresh in Johannesburg. The undue delay would
be contrary to
section 6(
4
)(b) of the
Children's Act 38 of 2005
, which provide
that:
"[i]n any matter
concerning a child ... a delay in any action or decision to be taken
must be avoided as far as possible."
2.
Although
some evidence may overlap, the essential elements pertaining to the
two actions are not the same, as the action for contact
is not based
upon the settlement agreement and/or the setting aside thereof.
3.
The
distance between Pretoria and Johannesburg should not be the
determined factor as the parties, the witnesses and/or the legal
representative are neither paupers nor stranger to travel the
distance between Johannesburg and Pretoria.
[6]
In my view the test then to be applied is whether it will be (taking
into account
the distance of travel, a possible delay and/or a
possible consolidation of the actions) more convenient or more
appropriate for
the Gauteng Local Division, Johannesburg to
adjudicate the matter.
Distance as factor
[7]
It is common cause that most, but not all relevant persons (parties,
experts and representatives)
are from Johannesburg. Depending on the
exact location (not being provided in the papers) it may be more
convenient for some to
travel to the centre of Johannesburg and for
others to the centre of Pretoria.
[8]
It is however general knowledge that the trip of 54 km, between
Johannesburg and Pretoria,
usually takes less than 30 minutes on the
well-known Gautrain which link the two cities, at a current cost that
rage between R49
and R75 (one way) depending were you embark and
disembark) and should in my view (considering cost and convenience)
not be a determined
factor anymore in this day and age, unless
specific and special circumstances and/or substantial prejudice can
be shown to exist
or that may materialize.
[9]
Applicant failed to show any such specific and special circumstances
or prejudice,
nor was any evidence tendered by the experts and/or
legal counsel which bemoaned the traveling to Pretoria.
Delay caused by transfer
[10] It is
common cause that advocate Salome Langeveld-Goosen (as appointed
family advocate), has already
conducted her investigation and made
various recommendations as contained in her report pertaining to the
contact between the respondent
and the minor child. Failure by the
applicant to cooperate with the recommendations of the family
advocate led to an application
and an order was granted by Mokose J
on 12 March 2019 in terms whereof the family recommendations are to
be Implemented forthwith.
There is no pending appeal to this order
(the procedural entitlement thereto, not common cause) although
reasons were requested
and to date not provided.
[11]
Although I am not convinced by the respondent, that the entire
process, undertaken thus far by the
office of the family advocate In
Pretoria, will start afresh with a consequential two years of waste,
I can safely conclude that
undue delay will most likely result from
the transfer of the matter from the office of one family advocate to
that of another (both
of them normally overburden with matters) and
that certain thoughts, considerations and labour will be lost in the
transfer.
[12] What
needs further consideration is the fact that the affairs pertaining
to the child's interest is
uncertain for the last four (4) years and
according highly undesirable.
[13] This
matter should be finalised to a point of certainty one way or the
other without further undue
delay.
[14]
The applicant to urge this as well. If
she is right in her view and her counter claim succeeds, this will
give finality to the matter,
to the best interest of the minor child.
[15]
It however seems that the applicant
is
unduly delaying the matter.
Applicant's denial (in para 12 of her replying affidavit) that this
application is nothing more than
an attempt to avoid having to give
effect to the recommendations contained in the final report of the
family advocate dated 30
August 2018, which resulted in an order of
court, is
contra
to
her intention to appeal the latter and her attack on the family
advocate with her words (as contained in her statement, dated
7 March
2019, and in opposition of the respondent's application for
implementation):
"As will be more fully
obvious from the said chronologies, the office of the family advocate
has always shown bias towards
me, in favour of the [respondent]. The
case has not been dealt with objectively and the Family Advocate and
her various agents
have always commenced interaction with me with a
sentiment of me being the offending and/or guilty party. The
recommendations of
the family advocate are based on false
representations
..
the report
...
falls to be set
aside completely and the process of the Family Advocate's
investigation in this matter needs to be restarted afresh."
[16]
It
is noticeable that this attack was not put forward in this
application (purposefully left out in the founding affidavit) as a
further ground for the transfer of the matter to the office of a new
(Johannesburg) family advocate, which then makes one wonder
if the
applicant's statement
supra
in
opposition of the respondent's application to implement the family
advocates final report, and the indication of a threatened
appeal, is
not just an attempt to have the matter delayed.
Adjudication of both actions
simultaneously
[17] In
adjudication of this issue, I could not find more appropriate words
(albeit different relief sought)
than that of Van der Schyff AJ in
the matter of
M.K. v M.C (Born HJ,
a matter heard in the
Johannesburg Local Division under case number 15986/2016, where It
was stated that:
[24]
This court sits as the Upper
guardian of all minors within its jurisdiction.
The discretion that is to be exercised when decisions pertaining to
the best interests of children are to be made is unique, and
not to
be circumscribed in the narrow or strict sense of the word as it
is
explained in Bezuidenhout v
Bezuidenhout 2005 (2) 187 (SCA) para 17. Satchwell J stated in LW v
DB 2015 JDR 2617 (GJ) para 5 that
the discretion to decide whether or
not a child can accompany a parent who leaves the jurisdiction of the
court, requires no onus
in the conventional sense. This approach is
in line with the principle set out by the Supreme Court of Appeal in
Jackson v Jackson
2002 (2) SA 303
(SCA) para 5 that where the
interests of minor children are involved, the litigation amounts to a
Judicial investigation of what
is in their best interests.
The
court is not bound by the contentions of the parties.
That slavish adherence to technical procedural requirements might
result in a court not being able to decide an Issue in the best
interests of a child, has been recognised in the unreported judgment
of Matojane J in DJB v MDP case number 30377/2008 decided
in 2010 in
the North Gauteng High Court, Pretoria, para 12. Here,
the
court held that the most important consideration in the case is the
physical, psychological and emotional well-being of the
minor child
under the circumstances, and that technical procedural objections
might shift the focus and undermine efforts to determine
the best
interests of the child.
[25]
This investigation involves an
application of law to the facts. This in turn, requires a holistic,
case-specific analyses. The court
must, in the words of Murphy J in
Cunningham v Pretorius, acquire
‘an
overall impression and brings a fair mind to the facts set up by the
parties. The relevant facts, opinions and circumstances
must be
assessed in a balanced fashion and the Court must render a finding of
mixed fact and opinion, in the final analysis a structured
value
judgment, about what it considers will be in the best interests of
the minor child.
'
[26]
It is a pity that the parties in this matter were not guided to
solve their disputes in a way other than through adversarial
litigation.
Since the issue of the summons in May 2016, the
conflict between the parties, and the acrimony and animosity have
only been fuelled
by the legal process.
(Own emphasis added)
[18]
The
court as upper guardian of all minor children, hearing the claim and
counterclaim pertaining to the parental rights and responsibilities,
is not bound by the contentions of the parties and similarly not
bound by the
inter partes
agreement
(pertaining to the child, maintenance towards, or contact rights) or
the setting aside thereof; more so, in this event
where compliance
with, and enforcement of, the settlement agreement is put in issue;
and even more so, as this settlement agreement
was never made an
order of court and hence
never
under
judicial overview of the upper guardian of the minor child.
[19]
I
can also see no reason why the Johannesburg court hearing the claim
for the setting aside of the settlement agreement, on the
basis of
misrepresentation (based upon events that took place prior to the
conclusion of the settlement on 1 December 2014) should
consider the
evidence of multiple experts pertaining to the current physical and
emotional wellbeing of the minor child and the
fitness of the parties
to assume parental rights and responsibilities.
[20]
The
court, adjudicating the parental rights and responsibilities, should
in my view bring a fair mind to the facts as set out by
the parties
and the experts and should not to be clouded with irrelevant matter.
[21]
Although r do not regard a possible delay as the main consideration
in this transfer application, I
do take it into account with my view
that this court can and should finalise the matter, pertaining to the
minor child and any
contact and deterioration of the relationship
between the respondent and the child, one way or the other,
forthwith, without undue
delay and without irrelevant evidence
pertaining to the enforceability of an
inter partes
settlement.
[22] I
therefore conclude that it would not be more convenient or more
appropriate for the Local Division
of Johannesburg to hear or
determine the matter pertaining to contact and parental
responsibilities. It is for the abovementioned
reasons that I granted
the order as contained in paragraph 2,
supra.
AJ
LE GRANGE
ACTING
JUDGE OF TH E HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
APPEARANCES
For the Applicant:
Adv. N Breytenbach on the instruction of JM
Berkowitz Inc.
For
the Respondent: Adv. M Feinstein and
Adv. J Berger on the
instruction of Schuler Heerschop
Pienaar Attorneys.