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[2019] ZAFSHC 138
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AP v FP (6385/2017) [2019] ZAFSHC 138 (29 August 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
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 63
85/2017
In
the matter between:
A
P
Applicant
And
F
P
Respondent
CORAM:
VOGES, AJ
HEARD
ON:
22 AUGUST 2019
DELIVERED ON:
29 AUGUST 2019
[1]
The parties in this application are involved in a protracted divorce
action under case number 6385/2017. Both parties
desire to be
awarded care and residency of their minor child.
[2]
After a Rule 43 hearing primary residence of the child was awarded to
the respondent
pendente lite
, subject to certain conditions.
[3]
As the Applicant was not amenable to the report/recommendations of
the Family Advocate and allegations of substance abuse were
made
between the two parties, the Applicant was of the opinion that the
three of them (Applicant, Respondent and child) should
be evaluated
by a psychologist. At the time of the Rule 43 hearing the
Respondent was not opposed to this idea.
[4]
The Applicant obtained an appointment with one Dr Giada Del Fabbro
for 6 February 2019 and the Respondent’s attorney was
so
informed on 18 January 2019. He responded on 21 January
2019: “We have noted the date and will make
the necessary
arrangements with client and the minor.”
On
23 January 2019 a further letter was forthcoming from the attorney
stating: “Unfortunately the client is of the view
that
your client must follow the rules and proper protocol and serve the
necessary notice in terms of rule 36. Unfortunately
our client
also holds the view that your client is requesting this examination
not in our best interest but merely to satisfy his
curiosity”
[5]
With reference to the Respondent’s refusal to the use of a
forensic psychologist, as previously agreed, the Applicant’s
attorneys informed the Respondent’s attorneys on 9
April 2019 : “… is ons in die proses om
‘n
aansoek in die hof te rig tot die effek. Hierdie aansoek sal
eersdaags op u beteken word.”
[6]
On 12 April 2019 a notice of motion was served on the attorneys of
the Respondent under Case number 6386/17 wherein the Applicant
applies for the following relief:
1. That the applicant be
authorized to appoint Dr Giada Del Fabbro, a qualified and registered
clinical psychologist practicing
at the Village Medical Centre, 12
Seventh Avenue, Parktown North, Gauteng to conduct a psychological
evaluation and assessment
as reasonably required by De Del Fabbro in
order to report to the applicant and the respondent as to the award
of the parental
rights and responsibilities in respect of the care
and contact of the minor child, A P, born on […] 2014, as
contemplated
in section 18(2) of the Children’s Act, 38 of 2005
and any matters regarding the best interests of A related thereto;
2. That the respondent be
directed to sign and provide the written consent, annexure “F14”
to the founding affidavit
to Dr Del Fabbro within 5 days after the
date of the granting of this order;
3. That the respondent be
ordered and directed to make A and herself available for and attend
the psychological evaluation and any
and all interviews,
consultations, assessments or other related and required assessment,
evaluations or processes as reasonably
required by Dr Del Fabbro, on
the dates to be determined by Dr Del Fabbro on reasonable notice to
the respondent;
4. That the applicant be
directed to compensate the respondent for the reasonable travelling
costs at the rate of R1.73/km and accommodation
to be arranged by the
applicant for the respondent and A for attending the evaluations;
5. That the applicant be
ordered and directed to make a copy of any and all reports issued and
received by Dr Del Fabbro to the
respondent and/or the respondent’s
legal representatives within 7 days from the date of receipt thereof;
6. That the costs of this
application be paid by the respondent, alternatively that the costs
of this application be costs in the
main action instituted under case
6386/2017;
7. Further and/or
alternative relief.
[7]
On 26 April 2019 the respondent filed a Notice of Intention to Oppose
and on 14 May 2019 she filed her Answering Affidavit,
setting out her
reasons for not attending the appointment with Dr Del Fabbro in
February 2019. It can be summarized in short
as:
·
She was not aware of the nature of the
proposed examination
·
The psychologist was chosen by the
Applicant;
·
The confirmation of arrangements was made
by the attorney under the impression that she will be agreeable;
·
No formal notice was given to her;
·
She was not prepared to enter into a
contract with Dr Del Fabbro
Eventually,
in par 22 she states “I will nevertheless consent to the
enquiry demanded by the Applicant in the hope that this
can lay his
reservations to rest.”
[8]
On 21 June 2019 a Notice of Set Down was served on the respondent’s
attorneys setting down the matter for trial on 22
August 2019 under
case number 6385/2019.
[9]
On 22 August 2019 Mr De Beer, for the Respondent, argued as a point
in limine
that case 6385/2019 (the divorce action) was set
down for trial as per the Plaintiff’s Notice of Set down and
that it should
be struck from the roll due to non-compliance with the
Mediation in Certain Divorce Matters Act, 1987 and that costs should
be
awarded to the Respondent as she came to court prepared for the
divorce trial.
Interestingly
enough the Respondent filed heads of argument under case number
6386/2019, dealing with the Applicant’s application.
[10]
It is clear from the papers that the wrong case number was
erroneously inserted on the Notice of Set Down.
It
is equally clear that the Respondent was fully aware that it was the
application that was set down on the role of opposed motions
and not
the divorce trial. Both parties came to court prepared to argue
the application of the applicant.
Because
of the urgency that the matter of the primary residency and care of
the minor child be finalized and because the incorrect
case number
was a bona fide error the court directed that the hearing of the
application should proceed. This order did not
prejudice any
party in any way.
[11]
With reference to
Muller v Groenewald
, unreported judgment of
ECD case no 2624/11 Mr De Beer persisted with the argument that Rule
36 is/can be applicable and that the
Applicant did not give proper
notice to the defendant.
Rule
36 is applicable to proceedings where damages in respect of bodily
injuries are claimed and medical examination is required.
In
this matter the psychological evaluation of the respondent is
required for a proper investigation into the primary care and
residence of the minor child. As pointed out in
Muller
v Groenewald
, supra the court, as
upper guardian of minor children, plays a far more inquisitorial and
active role in such matters and the court
should exercise its
jurisdiction in terms of the common law and the Children’s
Act.
I
am not convinced that the procedures of Rule 36 are applicable.
[12]
It was common cause between the parties that the Respondent has since
subjected herself and the child to evaluation by Dr Del
Fabbro.
The relief sought has thus become moot and only the matter of costs
was argued.
[12]
For the applicant it was argued that costs for this application
should be awarded to the Applicant, as the Respondent withdrew
her
consent for the evaluation, necessitating the Applicant to bring the
application to force her to comply with something she
had previously
agreed to. After she decided to subject herself to the
evaluation process, she did not file a letter of consent,
but instead
filed an opposing affidavit and heads of argument. By so doing,
unnecessary costs were incurred.
[13]
On behalf of the Respondent it was argued that this is an interim
application and that costs should only be decided during
the main
trial. The submission is that the trial court will first have
to decide whether the evaluation by Dr Del Fabbro
was necessary to
adjudicate the matter.
[14]
The general rule in matters of costs is that the successful party
should be given his costs on a party to party scale.
This rule
should only be departed from in exceptional circumstances. The
determination of an appropriate order is in the
discretion of the
court, who should exercise this discretion judicially. See in
this regard:
Erasmus,
Superior Court Practice D5-7
Intercontinental
Exports (Pty) Ltd v Fowels 1999(2) SA 1045 (SCA) at par [25]
In
Baptista v Stadsraad van Welkom
1996 (3) SA 517
(O) op
521A word verwys na die “…
basiese beginsel dat die
suksesvolle party op sy koste geregtig is en dat van sodanige reël
slegs indien spesiale omstandighede
aanwesig is, afgewyk sal word’
.
[15]
In
Intercontinental Exports (Pty) Ltd v Fowels
,
supra at par [27
]
it was pointed out that the purpose of
an award of costs is to indemnify a party.
[16]
In this matter the Respondent’s actions - to withdraw her
consent and to oppose the application of the Applicant - were
the
cause of this action to proceed. Voluminous papers were
prepared in order to put the application before court. Costs
were
incurred to do so. All this was not necessary, especially so as
the Respondent is now indicating that she is prepared
to have an
independent report obtained and even desirous of such.
[17]
As prayers 1 and 3 of the Applicant have already been complied with
prayers 2 and 5 also became moot. It is thus not
necessary to
make any order in respect of those prayers.
[18]
Although the Respondent consented to the tariff for travelling during
the interim custody ruling, she still protests the tariff
of R1.73
per kilometer tendered by the Applicant for travelling to the
psychologist. It was submitted that this matter be
argued
during the main trial.
[19]
In the premises of the above the following orders are made:
1. The Applicant must
compensate the Defendant for reasonable travelling costs for
attending cessions with Dr Del Fabbro at the
rate of R1.73 per
kilometer. Any claim for a higher amount to be argued
during the main trial.
2. The Respondent must
pay the Applicant’s taxed party and party costs for this
application.
__________
VOGES,
AJ
On
behalf of Applicant: Adv. C.P. Ploos van Amstel
Instructed
by: Peyper Austen Attorneys
Bloemfontein
On
behalf of
Respondent
: Adv J. M de Beer
Instructed
by: Jacobs Fourie Attorneys
Bloemfontein