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[2016] ZAKZDHC 52
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W.L v S.H and Another (2205/2016) [2016] ZAKZDHC 52; [2017] 1 All SA 652 (KZD) (3 November 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL LOCAL
DIVISION, DURBAN
CASE
NO.: 2205/2016
In
the matter between:
W
L
APPLICANT
And
S
H
FIRST
RESPONDENT
SHEPSTONE
& WYLIE ATTORNEYS
SECOND
RESPONDENT
JUDGMENT
Date
delivered: 3 November 2016
SISHI J
Introduction
[1] In this application
the Applicant seek an order in the following terms.
“
1.
That the First Respondent is directed to attend and participate in an
enquiry to be conducted by the office of the Family Advocate,
Durban,
on a date and time to be determined by it, on not less than five days
written notice thereof;
2. That it is directed
that no person, including any representative of the Second
Respondent, or any person instructed by the Second
Respondent, may be
present during the enquiry to be conducted by the office of Family
Advocate, Durban, as provided for in paragraph
1 hereof;
3. That the Second
Respondent is interdicted and restrained from allowing any of its
employees, or instructing any of its employees,
including but not
limited to Estelle De Wet, to be present during the enquiry, as
provided for in paragraph 1 hereof;
4. That, alternatively to
paragraphs 2 and 3 hereof, and in the event of the office of Family
Advocate deeming it necessary to allow
the First Respondent to have
legal representation on her behalf at the enquiry, as provided for in
paragraph 1 hereof:
4.1 the Applicant shall
be entitled to be interviewed separately and without the presence of
the First Respondent and any employee
of the Second Respondent, or
any person representing the Second Respondent present at the
Applicant’s interview with the
office of the Family Advocate,
Durban.
4.2 the First
Respondent’s legal representative from the Second Respondent,
including but not limited to Estelle De Wet, or
any person instructed
by the Second Respondent to represent the First Respondent at the
enquiry on the basis of a watching brief
and shall not participate in
the said enquiry;
5. That the First and
Second Respondents are directed to pay the costs of this application
jointly and severally.”
[2] The relief sought by
the Applicant can conveniently be summarized as follows: He seeks
mandatory relief against the First Respondent
in paragraph 1 of the
Notice of Motion. The Applicant seeks declaratory relief in paragraph
2 of the Notice of Motion. The Applicant
seeks prohibitory relief
against the Second Respondent in paragraph 3 of the Notice of Motion.
As an alternative, the Applicant
seeks further declaratory relief in
paragraph 4 of the Notice of Motion. Finally, the Applicant seeks an
order directing the First
and Second Respondents to pay the costs of
this application. The First and Second Respondents seek an order
dismissing this application
with costs.
Background
[3] The Applicant and the
First Respondent are the unmarried father and mother respectively of
a minor child A., a boy born on […]
2013. It is evident that
A. has been the subject of dispute between the parties in all the
litigation referred to in in this application
which has gone through
our Courts.
[4] The Applicant herein
instituted the main application in these proceedings in March 2016.
In paragraph 1.4 of the Notice of Motion
he sought relief in the
following terms:
“
1.
That the office of the Family Advocate, Durban, is requested to
conduct an enquiry and submit a report to this Court setting
out
therein its recommendations regarding the relief sought by me in this
application subject to the following stipulations:
1.1 Any communications
between the parties or their representatives and the office of the
Family Advocate Durban shall be addressed
to the attorney of the
other party so as to provide for transparency in these communication
exchanges;
1.2 I
together with the First Respondent (and A.) shall attend an enquiry
of an office of the Family Advocate and the legal representatives
of
me and First Respondent are not permitted to attend the office of the
Family Advocate for the enquiry.
”
[5] In the founding
affidavit, the Applicant explained the reason why he sought relief on
such terms as follows. In the previous
proceedings he had
instituted proceedings against the First Respondent in this Court
under case number 10832/2014. The First Respondent’s
attorneys
had only communicated in writing with the office of the Family
Advocate in Durban privately and without including his
attorneys in
such communications, but the First Respondent’s attorneys also
attempted to obstruct the process of the enquiry
by insisting that
they attended the enquiry together with the First Respondent as her
legal representative. There is however no
agreement between the
parties in this regard.
Common cause facts
[6] The following facts
are either common cause or not disputed between the parties.
[7] Moodley AJ having
heard arguments in the main application made an order requesting the
office of the Family Advocate to conduct
an enquiry and submit a
report for consideration by this Court (as claimed by the Applicant
in subparagraph 1.4 of the Notice of
Motion).
[8] The Family Advocate
enquiry was set down on 14 April 2016.
[9] Only the Applicant
was interviewed in this enquiry, and because the First Respondent was
not interviewed, the Family Advocate
could not make recommendations
regarding the relief sought by the Applicant in the main application.
[10] The First Respondent
insisted on her attorney being present in the enquiry to observe the
interview of both the Applicant and
the First Respondent.
[10.1] The
Applicant objects to the First Respondent having her attorneys
present during the enquiry by the office of the
Family Advocate;
[10.2] Despite the
Applicant’s objection to the presence of the First Respondent’s
attorneys in the enquiry, he
would not object to the presence of the
First Respondent’s attorney, so long as he is interviewed
separately from the First
Respondent and the First Respondent’s
attorney only be present while the First Respondent is being
interviewed.
[10.3] The
Applicant and the First Respondent have reached a dead-lock in this
regard.
[11] Hence the Applicant
has instituted this application against the First Respondent for:
1. An order directing the
First Respondent to attend the enquiry alone and preventing her from
having her attorney present at the
enquiry;
2. Alternatively, and if
the Family Advocate would allow the First Respondent to have her
attorney present at the enquiry, then
he seeks an order entitling him
to be interviewed separately, without the First Respondent’s
attorney being present, and
the First Respondent’s attorney
shall only be allowed to observe the First respondent’s
interview on a watching brief.
Applicant’s
submissions
[12] The Applicant
submitted that the office of the Family Advocate is established in
terms of the Mediation in Certain Divorce
Matters Act 24 of 1987
(“The Mediation Act”).
[13] The Act provides
that the Minister of Justice and Constitutional Development:
“…
may
appoint one or more officers in the public service at each division
of the Supreme Court of South Africa (the High Court), to
be styled
the Family Advocate, to exercise the powers and perform the duties
granted or assigned to the Family Advocate by or under
this Act or
any other law
[1]
”
[14]
The Minister of Justice and Constitutional Development has under
section 5 of the Mediation Act made the regulations under
the Act
[2]
.
[15] Both the Mediation
Act and the regulations thereto show that the procedures followed by
the Family Advocate are fairly unregulated.
There are very few
prescriptive rules about how it should exercise its powers and
perform its functions.
[16]
With regards to the procedure to be followed by the Family Advocate
in the enquiry to be instituted for the purpose of the
report and
recommendation to Court on the welfare of minor children, the
regulations provide that the Family Advocate shall institute
an
enquiry in such a manner as may be deemed “expedient or
desirable
[3]
”.
[17] The Applicant
submitted that this Court has the power to grant the order sought by
the Applicant in paragraphs 1 and 2 of the
Notice of Motion. He
concedes that the order sought in paragraphs 2 in effect dictates to
the Family Advocate how it is to conduct
an enquiry in this matter.
This submission is based upon the following:
1.
The
Constitution provides that the High Court has the inherent power to
protect and regulate its own processes and to develop common
law,
taking into account the interests of justice
[4]
.
2.
The Family Advocate itself recognizes that its
office “…is an extension of the Court in that it assist
the Court when
it comes to minor children involved in a legal
dispute.”
3.
The
Children’s Act provides that all proceedings in a matter
concerning a child must respect, protect, promote, fulfil the
child’s
rights and best interests
[5]
.
4.
The
Children’s Act also provides that an approach which is
conducive to conciliation and problem solving should be followed,
and
a confrontational approach avoided
[6]
.
5.
The Family Advocate’s role in enquiries is
always at the outset, after advising both parties of the law, to
attempt to mediate
settlement between the parties. Only if the
disputes are not settled by mediation, does the Family Advocate make
recommendations
to Court.
6.
One of the important and necessary principles of
mediation is that it is conducted on a “without prejudice”
basis.
7.
The presence of an attorney in the mediation
proceedings violates the underlying principles of this process.
8.
The Family Advocate concedes that no policy has
ever been established by the Chief Family Advocate regarding the
presence of attorneys
during the enquiries.
9.
The order sought by the Applicant in this
application would therefore not violate any policy decision made by
the Chief Family Advocate
(or any regulations made by the Minister of
Justice and Constitutional Development) regarding this issue of the
attendance of the
legal representatives at the enquiry.
10.
The Mediation Act itself provides that the Family
Advocate shall exercise its powers and perform its duties in terms of
the Act
or any other law which will include common law.
11.
In
this regard it is also relevant to highlight the fact that the
Mediation Act expressly provides that the High Court can condone
any
non-compliance with the provisions of the regulations to the Act,
which in fact means that the High Court is empowered to regulate
procedures to be followed by the Family Advocate
[7]
.
[18] The Applicant
contends that not only does this Court have the power to grant an
order regulating the procedures to be followed
by the Family Advocate
in the conduct of its enquiry, as sought by the Applicant in
paragraph 1 to 3 of Notice of Motion, but the
relief sought by the
Applicant in this regard is also in the interest of justice.
He further contends that the relief
is also necessary in the light of
the conduct of the Second Respondent in these proceedings.
First Respondent’s
submissions
[19] The First Respondent
contends that the Court does not have the power to prescribe to the
Family Advocate how it should conduct
an enquiry. The First
Respondent contends further that the Family Advocate in Durban has in
the past allowed attorneys to be present
for the interviews of both
parties provided such is in the nature of the watching brief only.
According to the First Respondent
this is in accordance with the
existing directives of the office of the Family Advocate in Durban.
The First Respondent further
contends that in the light of the past
history in other matters, submissions by one or other parties are
either misunderstood or
not recorded correctly or overlooked. It is
logical and in accordance with the existing practice that the
attorney should be permitted
to attend as a watching brief.
[20] The First Respondent
contends that the submission by the Applicant that the Court has the
power to dictate to the Family Advocate
how it is to conduct the
enquiry is insufficient to establish that the Court has jurisdiction.
First Respondent further contends
that if the Applicant accepts that
the office of the Family Advocate is an extension of the Court, as he
has done, then it is arguable
that the duly appointed representative
of the First Respondent is entitled to be present at all times at the
Family Advocate to
ensure that matters are conducted fairly and
impartially and that there is an accurate recordal of all the
submissions by either
side since these are to be used, via the report
of the Family Advocate in Court proceedings.
The Issue
[21] The main issue to be
determined in this matter is whether the parties’ legal
representatives should be present at all
times during the interviews
conducted by office of the Family Advocate.
Evaluation
[22] It has been
indicated above that the Family Advocate is appointed by the Minister
of Justice and Constitutional Development
to exercise its powers and
perform its duties in terms of the Act or any other law. The Minister
has in terms of section 5 of the
Mediation Act made regulations under
the Act and it is clear from the Mediation Act and the regulations
that the procedures followed
by office of the Family Advocate in the
performance of its duties are fairly unregulated.
[23] Section 5(1) of the
regulations under the Mediation Act provides that the Family Advocate
shall institute an enquiry in such
a manner as maybe deemed
“expedient or desirable”.
[24] Although the
application papers in this matter were served on both the office of
the Minister of Justice and Constitutional
Development and the office
of the Family Advocate, neither party sought to be joined in the
proceedings. The issue of the non-joinder
of the office of the Family
Advocate was raised by the Court
mero motu
. Counsel for the
Applicant was, however, of the view that this matter could be proceed
without the office of the Family Advocate
being joined and indicated
that officials from the Family Advocate were present in Court
although they did not file any affidavits.
The issue was also raised
by counsel for the First Respondent. After hearing the parties the
Court was of the view that it is the
interest of justice to proceed
and accordingly proceeded to hear the application.
[25] This became
important to the Court because of the nature of the order sought by
the Applicant in paragraphs 1 and 2 of the
Notice of Motion.
As the order sought in paragraph 2 purports to dictate to the Family
Advocate how it is to conduct
the enquiry in this matter.
[26] Save for what is
stated in the correspondence referred to in the papers, the Family
Advocate has conceded that no policy has
ever been established by the
Chief Family Advocate’s regarding the presence of attorneys
during the enquiry.
Reference has been made to the
current standing directive at the Family Advocate’s office
where attorneys or representative
may be allowed to sit in the
enquiry but that they may not participate in the enquiry at all.
[27] No written policy
was placed before Court by any of the parties in this regard nor was
there any standing directive at the
Family Advocate placed before
Court dealing with this issue other than the correspondence referred
to by the parties annexed to
their papers.
[28]
Section 9 of the Children’s Act
[8]
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. This is
consistent with the objects of the Children’s Act as set out
in
section 2(b)(iv) which provides:
“
The
objects of the Act are
2a …
2(b) to give effect to
the following constitutional rights of children, namely –
(i) …
(ii) …
(iii) …
(iv) that the best
interest of the child are of paramount importance in every matter
concerning the child.”
[29] In determining the
issues in this matter this Court is enjoined by the Constitution and
the Children’s Act to take into
consideration the best interest
of the child.
[30] The First and Second
Respondents have contended that the First Respondent is entitled not
only to have her attorney present
when she is interviewed by the
Family Advocate, but also to have her attorney observe the Applicant
being interviewed by the Family
Advocate. This contention is made by
the Respondents on the basis that First Respondent has a
constitutional right to legal representation
in these proceedings.
Furthermore it has also been contended that the enquiry at the family
Advocate forms part of these proceedings,
she is therefore entitled
to have her attorney present to observe the interview of both
parties.
[31] Section 34 of the
Constitution provides that everyone has a right to have any dispute
that can be resolved by the application
of law decided in a fair
public hearing before a Court or where appropriate another
independent and impartial tribunal or forum.
[32]
The Constitutional Court in
Magidiwana
[9]
made it clear that section 34 deals with disputes that can be
resolved
by
the application of law
.
The Family Advocate’s findings and recommendations are not
necessarily to be equated to a resolution of legal disputes by
a
Court of law. The powers of the office of the Family Advocate are
limited to making findings of fact and recommendations.
[33] As correctly pointed
out by counsel for the Applicant, the Family Advocate’s role in
these proceedings is not to make
orders, findings, awards or rulings
of a judicial or quasi-judicial nature. It only makes reports and
recommendations that can
be considered by this Court. The report and
the recommendations made by the Family Advocate are not binding on
this Court, they
are just a guide.
[34] The First
Respondent’s constitutional right to a fair public hearing in
this matter could never be violated by not being
allowed to have her
attorney present at the Family Advocate enquiry.
[35]
In the same way as there is common law authority for an order
directing a parent to submit to interviews and assessments with
a
psychologist appointed by the other party (on the basis that any
constitutional right to privacy that one may have is trumped
by the
constitutional principles of the best interests of a minor child
concerned), the First Respondent cannot assert that
any
constitutional right that she may or may have in lieu of procedures
being followed which are in the best interest of the child.
[10]
[36] In my view there is
no reason why this procedure cannot be adopted in enquiries conducted
by the Family Advocate. The enquiry
conducted by the office of the
Family Advocate does not amount to legal proceedings contemplated in
section 34 of the constitution.
In my view legal representation of
the parties in these enquiries should not be permitted.
[37] Regulation 5(1) of
the Regulations to the Mediation Act provides, inter alia, that:
“
(1)
The Family Advocate shall as soon as practicable after the receipt of
a request to conduct an enquiry institute an enquiry in
such a manner
as he or she may deem expedient or desirable.”
[38] Section 6(2)(a) of
the Children’s Act requires that all proceedings, actions or
decisions in a matter concerning a child
must respect, protect,
promote and fulfil the child’s rights and best interests as set
out in the Bill of Rights subject
to any lawful limitations.
Section 6(4)(a) further provides that in any matter concerning a
child an approach which
is conducive to conciliation and problem
solving should be followed and confrontational approach be avoided.
[39] The behaviour and
the conduct of the parties in this matter is far from conciliatory,
it is highly confrontational and is not
consistent with the
provisions of the constitution and the Children’s Act.
[40]
On the same day Acting Justice Moodley delivered judgment ordering
the Family Advocate to conduct an enquiry and report to
the Court,
the First Respondent’s attorney Ms Estelle de Wet addressed an
email correspondence to the Applicant’s attorneys
of record and
to the Family Advocate. This correspondence is dated 22 March
2016
[11]
and paragraph 3 to 7
thereof are of particular importance and they read as follows:
“
3.
You will note that the last report prepared by your offices was
considered by Judge Vahed when he handed down his judgment on
30 June
2015 (at page 111 of the indexed papers) and it is my client’s
contention that nothing has changed since then that
warrants another
enquiry by your offices, and that the applicant’s insistence
that you do so amounts to an abuse of the process.
The time that you
will be devoting to this matter could and should more properly be
spent on matters which actually require investigation,
and not, as my
client contends, using your offices to effectively “appeal”
the Court order made by Judge Vahed, in
circumstances where leave to
appeal was refused.
4. In any event, most of
the relief which the applicant asks for does not fall within your
ambit (i.e. the name change etc.).
5. The enquiry by the
family Advocate is part of the Court proceedings and it is therefore
my client’s constitutional right
to be represented throughout
the proceedings including at the enquiry.
6. I will be present at
the enquiry and it is up to the Applicant if he wants to be
represented or not.
7. My client is also not
prepared to be in the same room as the Applicant as he has abused her
in the past and a perusal of all
of the reports attached to her
opposing affidavit will reveal that she feels threatened by him and,
whilst she is prepared to co-operate
with the procedure, she is not
prepared to be subjected to this. Unless she can be accommodated in
this regard, she will not attend
the enquiry.”
[41] A competent Court
has ordered that the Family Advocate conducts an enquiry in this
matter and an officer of this Court, Estelle
de Wet the First
Respondent’s attorney, suggests in this email that the enquiry
as ordered by the Court was unwarranted since
there was no change in
the circumstances. She further states that the time they would be
devoting to this matter could and should
be more appropriately spent
on matters which require investigations, and not, as her client’s
contends, using their offices
to effectively “appeal” the
Court order made by Judge Vahed in circumstances where the leave to
appeal was refused.
[42] The statement in the
above email that the First Respondent would not attend the enquiry if
her demands are not met is nothing
more than an attempt to prevent
the enquiry ordered by this Court from taking place. As the Family
Advocate correctly pointed out
in the supplementary report, this
conduct amounts to obstruction of justice in that despite the
standing Court order, the First
and Second Respondents will not allow
this to happen unless it is in their terms and rules. This conduct by
the First Respondent’s
representative not only undermines the
integrity of the office of the Family Advocate but also undermines
the integrity of this
Court especially in circumstances where there
is a Court order directing the Family Advocate to conduct an enquiry
and report to
this Court. It is therefore clear from the papers and
the correspondence attached thereto that the First Respondent’s
representatives
has been obstructive in this enquiry process.
[43] There is no doubt
that prior to the institution of this application, both parties
communicated with the office of the Family
Advocate without copying
such correspondence to each other. Both parties are therefore guilty
of such conduct.
[44] Furthermore the
direction dealing with legal representation at such enquiries
referred to above also includes options available
to either party in
a case of a dispute in respect of this aspect, one of the option is
that the party who does not wish to be in
the same room with the
other party’s attorney may be referred to another office of the
Family Advocate in terms of regulations
6 of the Regulations to
Mediation Act.
[45]
It is also clear from the papers that before the enquiry was set down
on 14 April 2016 the Applicant informed the office of
the Chief
Family Advocate in Pretoria that he objected to the presence of the
First Respondent’s attorney during the enquiry
when he was
being interviewed
[12]
. The
office of the Family Advocate in Pretoria thereafter advised the
Applicant in writing that, in the light of the fact that
he objected
to the presence of the First Respondent’s attorney during his
interview with the Family Advocate:
“
you
may also have your attorney present at the enquiry only for
observation purposes and not for participation, in which case the
“shuttle interview” where one party is interviewed
at the time will be conducted
[13]
.”
[46] The Applicant
notified the Chief Family Advocate that:
“
I
will accept the option of what you referred to as a ‘shuttle
interview’ where I am interviewed alone without the
respondent’s attorney present
[14]
”.
[47]
The Office of the Chief Family Advocate, Pretoria responded to this
written representation made by the Applicant by thanking
him for his
“understanding and co-operation in this matter
[15]
”.
[48]
The First and Second Respondents in their opposition to this
application contend that the Applicant has misconstrued what the
office of the Chief Family Advocate had in mind when it said that a
‘shuttle interview’ would be conducted with the
parties
being interviewed separately. The First and Second Respondents
contends that the office of the Chief Family Advocate did
not mean
that the First Respondent’s attorney was not entitled to be
present while the Applicant was being interviewed separately.
[16]
[49]
The First and Second Respondents even go so far as to place
documentary evidence before this Court in substantiation of their
affirming that the Applicant has misconstrued what the Chief Advocate
represented. The First Respondent in her answering affidavit
attaches
a letter addressed by the office of the Family Advocate, KwaZulu
Natal in an unrelated matter
[17]
(only the first page of this letter is put up, and other portions of
the letter are redacted).
[50]
The Respondent alleges that it is necessary to redact those portions
of the letter (and exclude the balance of the letter)
on the basis
that “it deals with the parties concerned in another matter”.
The Applicant has placed before Court a
full copy of this letter with
the only reduction being the name of the party concerned
[18]
.
[51] It is quite apparent
from the redacted portion of this letter that Advocate Khumalo, the
Senior Family Advocate in Durban,
explained therein that (in that
matter) the Applicant’s attorney “will be sitting in
during the
interview of the Applicant.
” The last part of
the redacted paragraph also clearly articulates that the Respondent
(in that matter) is “…
welcome to have your attorney sit
in during your interview”.
[52] The Applicant has
contended, correctly in my view, that the redacted paragraph quite
clearly demonstrates that the First and
Second Respondents
contentions regarding the First Respondent’s attorneys right to
be present while the Applicant is being
interviewed are not only
correct but in fact constitute blatant misrepresentations to this
Court.
[53] The office of the
Chief Family Advocate in Pretoria clarifies what was meant in this
letter dated 12 April 2016 (annexure ‘J’
to the founding
affidavits pages 46 to 47) by stating that:
“
one
of the options is that the party who does not wish to be in the same
room as the other party’s attorney may be referred
to the other
office of the Family Advocate
[19]
.”
Despite this
clarification, the First and Second Respondents persist with their
contentions in the supplementary affidavit delivered
thereafter.
[54] It is disingenuous
to suggest that the reduction was done on senior counsel’s
advice. The submission in the First Respondent’s
heads of
argument is that the contention regarding the reduction of the letter
from the Senior Family Advocate in Durban have been
explained, but
this is in any event again irrelevant because of the uncontroverted
statement that the Family Advocate in Durban
has previously allowed
attorneys to sit in on the interviews on both side cannot be
sustained in the light of the above. The contentions
regarding the
reduction of the letter are relevant for the purposes of this
application. There is other correspondence attached
to the papers,
which I found not necessary to deal with herein.
[55]
In the matter involving the same parties,
[20]
Vahed J stated that it is about time that both parties realize that
they create a mature, responsible and caring approach in their
interpersonal relationship so as to achieve the situation and routine
that works best for A., for it is ultimately A. that must
be the
victim in this process not either of the parties. Despite
this warning by Vahed J
,
the
parties have continued to litigate against each other and the present
application before Court is a clear indication that the
parties have
ignored this warning by Vahed J.
[56] In the present
application what is before this Court is nothing but a fight between
the parties which does not take into consideration
the interest of
the minor child.
[57] As indicated above
annexure ‘SLH2’ to the First Respondent’s opposing
affidavit is redacted. In this opposing
affidavit this Court is
referred to a portion that purports to support the First Respondent’s
case as regards the right to
legal representation whereas the rest of
the contents thereof were deleted. The same annexure was not issued
in respect of the
matter at hand, but it relates to a different
matter which was previously handled by the same office in respect of
which a similar
question regarding legal representation was
addressed. The Court has been referred to an unedited version of
annexure ‘SLH2’
to the opposing affidavit. The Family
Advocate in the supplementary report has correctly pointed out that
the mere fact that the
First Respondent obtained annexure ‘SLH2’
to the opposing affidavit that addressed a similar query suggests
that the
First Respondent was at all time aware of the position and
practice at the office of the Family Advocate, but had however,
decided
to unnecessarily prolong this matter which has at this stage
led to the present interlocutory application.
[58] I have not been able
to find any previous authority dealing with this particular issue,
viz the parties’ legal representations
during the enquiries
conducted by the Family Advocate. I have already dealt with the
policy and the directives of the Family Advocate
pertaining to this
issue earlier on in this judgment.
[59] In my view Family
Advocates should be able to conducts these enquiries freely and
unhindered by the presence of third parties
or legal representatives.
[60] As indicated above,
the enquiries conducted by the office of the Family Advocate are
legal proceedings or quasi-judicial proceedings
or commissions
wherein legal representation of the parties’ would be
permitted. Family Advocates should be free to conduct
these enquiries
without any involvement of third parties including watching briefs by
parties’ representatives and these
should be excluded at all
stages of the enquiries.
[61] In my view it would
not be in the interest of justice to set a precedent that parties
attending the interviews with the Family
Advocate should be entitled
to be accompanied by their attorneys. This would adversely affect the
mechanism of the interviews of
the parties by the Family Advocate
from the assessment of the parties and their suitability as parents
exercising care of and contact
with the children is based. Even
though the report and the recommendations made by the Family Advocate
are not binding to the Court,
they certainly play a role in making a
decision on any particular dispute between the parties. In my view,
if the parties are interviewed
in the absence of their legal
representatives that would go a long way in having the effect of
encouraging settlements of the dispute
between the parties.
[62] In my view it is not
in the interest of justice that legal representatives of the parties
be allowed to sit at enquires ordered
by Court in the office of
Family Advocates. The office of the Family Advocate is created by the
Mediation Act to perform its functions
in terms of this Act. It is
not an extension of the Court as the parties in this matter seem to
assume.
[63] In the circumstances
of this case, and in the absence of any regulation or policy dealing
with the legal representation at
such enquiries, I am of the view
that this Court has the power to regulate and direct how the office
of the Family Advocate should
conduct its enquiries.
[64] It is clear from the
conduct of both Respondents that if the order sought by the Applicant
is not granted, the First Respondent
will not attend the enquiry
ordered by this Court. This is certainly not in the best interest of
the minor child as this would
have the effect of unnecessarily
delaying the determination of the main application. The present
interlocutory application has
been occasioned by the behaviour of the
First and the Second Respondents.
[65] Considering all the
facts of this matter I am satisfied that the Applicant has succeeded
in making out a case for the grant
of the prayers sought in 1 and 2
of Notice of Motion.
Costs
[66] It is further
submitted that both the First and Second Respondents opposition to
this application and indeed their behaviour
prior to this application
which necessitated this application, warrant a costs order against
both of them and such costs to be
paid jointly and severally. The
Applicant submitted that the Respondents should pay the costs of this
application on an attorney
and own client scale, but no such claim
was sought by the Applicant in the Notice of Motion.
[67]
The First Respondent on the other hand prays for the dismissal of the
Applicant’s application with costs and such costs
to include
the costs of senior counsel.
[68] According to counsel
for the Second Respondent Mr
Pillemer
SC, the issues that
required determination related to the Second Respondent, further the
conduct of the First Respondent‘s
attorney, should lead to a
costs order
de bonis propriis
. The Second
Respondent abides the decisions of the Court on the main relief which
it opposed by its client the First
Respondent and who is separately
represented by counsel at the hearing.
[69] He submitted that
even if the Applicant is successful in the application and granted
the substantive relief that he seeks,
the relief that is sought is
against the Second Respondent in prayer 3 and prayer 4.2 is not
necessary, as it follows from the
other earlier part of the order
and, even if it is so to be included for clarity, it is not relief of
the kind that would attract
a separate additional order as to costs
against the legal representatives concerned. This submission appear
to be correct.
[70] Accordingly in
respective of the outcome of the application on the merits, no costs
order should be made against the Second
Respondent.
[71] The Applicant
however does basically seek costs against the Second Respondent which
therefore opposes the application on that
basis, otherwise abiding by
the decision of the Court.
[72] Counsel for the
Second Respondent contended that the substantive relief that is being
sought against the Second Respondent
is in effect an order for costs
de bonis propriis
and, that being so, he submitted that the
test as to when such an order would be made, is the applicable test
in this case.
[73]
Fabricius J in
Multi-Links
Telecommunications Ltd v Africa Prepaid Services Nigeria Ltd
[21]
at
paragraph 34 and 35 spelt out the position as follows:
1. It is exceptional to
order a legal representative to pay the costs out of his own pockets;
2. The obvious policy
considerations underlying the Court’s reluctance to order costs
against legal representatives personally,
is that attorneys and
counsel are expected to pursue their client’s rights and
interests fearlessly and vigorously without
endue regard for their
personal convenience. In that context they ought not to be
intimidated either by their opponent or even
by the Court.
3. Legal practitioners
must present their case fearlessly and vigorously, but always within
the context of a set ethical rules that
pertain to them which are
aimed at preventing practitioners from becoming parties to deception
of the Court.
4. The
Court acknowledged
that legal
representatives sometimes make errors of law, omit to comply fully
with the rules
of Court or err in other
ways related to the conducts of the proceedings. This,
the Court said, is an everyday occurrence.
This does not
however, per se ordinarily result in the Court showing its
displeasure by ordering the particular legal representative
to pay
the costs from his own pocket.
5. Such an order is
reserved for conduct which substantially and materially deviate from
the standards expected from the legal practitioners,
such that their
clients the actual parties to the litigation, cannot be expected to
bear the costs, or because the Court feels
compelled to mark its
profound displeasure at the conduct of an attorney in any particular
context. Examples are dishonesty obstruction
of the interests of
justice, irresponsible and grossly negligent conduct litigating in a
reckless manner, misleading the Court,
gross incompetence and lack of
care”.
[74] Counsel for the
Second Respondent contends that it is clear from the affidavits that
the Respondent’s attorney was at
all times acting in the
interest of her client and on her instructions based on advice.
He submits that the case of
costs
de bonis propriis
has simply
not been made in the papers. He finally submitted that
the case against the Second Respondent be dismissed
with costs.
[75] I must point out
that the conduct of the First Respondent’s legal representative
as set out above in this matter is completely
unacceptable.
It borders on the obstruction of the interests of justice.
It is not expected of an officer
of this Court to display an attitude
with borders around contempt of Court. Despite the above,
I am of the view that
her conduct does not justify a cost order
de
bonis propriis
.
[76] There is in my view
no reason why the costs should not follow the result in this matter.
Order:
[77] In the result I make
the following order:
1.
The First Respondent is ordered to attend and
participate in the enquiry to be conducted by the office of the
Family Advocate, Durban,
on the date and at the time to be determined
by it, on not less than 5 days written notice.
2.
It is ordered that no person including any
representative of the Second Respondent or any person instructed by
the Second Respondent
may be present during the enquiry to be
conducted by the office of the Family Advocate, Durban, as provided
for in paragraph 1
hereof.
3. The First and Second
Respondents are ordered to pay the costs of this application jointly
and severally the one paying the other
to be absolved.
___________________
SISHI J
COUNSEL
Counsel
for the Applicant
: Adv SI
Humphrey
Instructing
Attorneys
: Justin
Ducie Attorneys
Building
13
Greenstone
Hill Office Park
Emerald
Boulevard
Greenstone
Hill
Edevendale
Johannesburg
Gauteng
Ref:
Mr J Ducie
c/o
JH
Nicolson Stiller & Gashen
Clifton
Place
19
Hurst Grove
Durban
Ref:
Ms L Stemmet
Counsel
for the 1
st
Respondent
: Adv BL
Skinner
SC
Instructing
Attorneys
:
Shepstone & Wylie Attorneys
24
Richefond Circle
Ridgeside
Office Park
Umhlanga
Rocks
Durban
Ref:
EWD/SG/HARV26618.1
Counsel
for the 2nd Respondent :
Adv M Pillemer
SC
Instructing
Attorneys
:
Shepstone & Wylie Attorneys
24
Richefond Circle
Ridgeside
Office Park
Umhlanga
Rocks
Durban
Ref:
EWD/SG/HARV26618.1.1
Date
of hearing
: 21 June
2016
Date
of Judgment
: 3
November 2016
[1]
Section 2(1) of the
Mediation Act
[2]
Mediation in Certain
Divorce Matters Regulations 1990, published under GNR2385 of 1990,
GG12781 on 3 October 1990 as amended subsequent
thereto.
[3]
Regulation 5(1) of
Regulation under the Mediation Act.
[4]
Section 73 of the
Constitution.
[5]
Section
6(2)(a) of the
Children’s
Act 38 of 2005. The supplementary memorandum to the report by
the office of the Family Advocate, paragraph
4.1 at page 168
[6]
Section
6(4)(a) of the
Children’s
Act 38 of 2005.
[7]
Section 5 of the
Mediation Act
[8]
Children’s Act 38
of 2005
[9]
Legal Aid South
Africa v Magidiwana and Others
2015
(6) SA 494 (CC)
[10]
Per
Lopes J in
DEB
v MGB
Case
No. 4313/2013
KZN
(17 May 2013). Durban
[11]
Annexure D to the
founding affidavit at page 34
[12]
Annexure
G to the founding affidavit at p40
[13]
Annexure
J to the responding affidavit at p47
[14]
Annexure
K founding affidavit at p48
[15]
Annexure
L founding affidavit at p50
[16]
First
Respondent’s answering affidavit paragraph 12(g) at p113
[17]
First Respondent’s
answering affidavit annexure SL2 at p130
[18]
Applicant’s
supplementary replying affidavit annexure SRA1 at page 159 to 161
[19]
Supplementary memorandum
of the report of the office of the Family Advocate, Durban paragraph
5.2 at page 172
[20]
Unreported decision in
case no10832/2014 delivered on 30 June 2015(DBN)
[21]
2014
(3) SA 265
(GP)