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[2016] ZAECELLC 9
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N.E.B v M.T.B (EL1311/2016, ECD3211/201) [2016] ZAECELLC 9 (1 December 2016)
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
(EAST
LONDON CIRCUIT LOCAL DIVISION)
CASE
NO: EL 1311/2016
ECD
3211/201
In
the matter between:
N.
E.
B.
Applicant
and
M.
T.
B.
Respondent
REASONS
FOR THE ORDER POSTPONING THE MATTER ON 24 NOVEMBER 2016
MBENENGE
J:
[1]
The applicant and the respondent are awaiting judgment in a divorce
action launched before the Regional Court, East London reserved
way
back on 29 July 2016.
[1]
[2]
Pending the finalization of the divorce action, the minor children
born of the marriage between the parties, namely K. B. (a
boy born on
[.....] 2005) and L. B.(also a boy born on [....] 2009), have become
the subject of a custody scramble between their
estranged parents.
[3]
In the midst of orders previously granted by the lower courts which,
in light of the view I have taken of this matter, are of
no moment
for present purposes, the applicant resorted to this court seeking,
by way of urgency, an order mainly-
3.1
declaring that “
the children’s court order under
application number 14/1/4-52/2011 be of no further force and object
pending judgment to be
delivered in the divorce proceedings between
the parties and that the Regional Court order in terms of Rule 58
dated 24 July 2014
made under case number EC/EL/RC638/11D and
confirmed on 6 October 2016 be the prevailing order pending the
outcome of the divorce
proceedings between the parties
;”
and
3.2
directing the respondent to “
immediately deliver the minor
children to the residence of the applicant at her residence at 1434
NU10, Mdantsane, together with
whatever belongings of the minor
children are to be found there, such as school uniforms and the
like
.”
[4]
The application was heard on 12 October 2016 on which day this court
(per Bacela AJ), pursuant to an
ex tempore
judgment, ordered
that the minor children be delivered to the applicant’s
residence at Mdantsane.
[5]
The order referred to in paragraph [4] above attracted the launch of
an application whereby leave is being sought by the respondent
to
appeal to the Supreme Court of Appeal “
against
the whole of the ex tempore judgment and order of Madam Justice
Bacela (AJ) delivered on 12 October 2016
.”
Such leave is sought despite the impugned order being liable to be
construed as one for the interim custody of the minor
children
pending the outcome of the parents’ matrimonial action whose
judgment remains reserved by the Regional Court.
[2]
[6]
The applicant now seeks an order in terms of section 18 of the Act
directing that the order of 12 October 2016 granted in her
favour be
operative pending the outcome of the application for leave to appeal
and any resulting appeal that may be noted.
The application is
being opposed.
[7]
When the matter came before me I expressed concern about the
challenges associated with hearing the section 18 application without
the benefit of the reasons for the impugned order.
[3]
My view was that the court whose judgment is the subject of the
application for leave to appeal would be better placed to
pronounce
even on the section 18 application. The parties’ counsel,
somewhat grudgingly, gave heed to my concern.
After engaging in
talks and reaching agreement in relation to custody and access rights
to the minor children, I postponed the
matter to 07 December 2016, on
the following terms:
“
1.
The matter is postponed for hearing on 7 December 2016 by the
Honorable Madam Justice Bacela
(AJ) on which date:
1.1
the application for leave to appeal the order dated 12 October 2016
shall be heard; and
1.2
the
application in terms of section 18 of the Superior Courts Act shall
be heard.
[4]
2.
The record of proceedings which are subject of the appeal sought
shall be made
available to the parties by 29 November 2016.
3.
The respondent (applicant) in the application for leave to appeal is
granted
(two) days upon receipt of the record to supplement his
papers regarding the application for leave to appeal.
4.
Until the finalization of this application as per paragraph 1.1 and
1.2 above
the minor child shall spend alternative weeks with the
parties, the children to be returned to other party by 17:00 on
Sunday each
week alternating.
5.
Costs occasioned by the postponement shall be in the cause.
6.
All reserved costs shall stand over for determination by the court
hearing the
section 18 application. To that end, the parties
shall deliver any affidavits they may wish to file by Friday 02
November
2016. The respondent shall deliver his affidavit on
the question of the reserved costs by Wednesday 30 November 2016, and
the applicant hers an answer to that of the respondent by Thursday 1
December 2016. The respondent shall deliver her replying
affidavit, if any, by Friday 2 December 2016.
7.
Reasons for the postponement of the section 18 application shall
follow in due
course.”
[8]
Below are my reasons for the order I granted. In part, the
practical difficulty of hearing the section 18 application
before the
hearing of the leave to appeal application is also dealt with in
these reasons.
[9]
Section 18 of the Act upon which the applicant’s cause of
action is founded, in so far as relevant hereto, reads:
“
(1)
Subject to subsections (2) and (3), and unless the court under
exceptional circumstances orders
otherwise, the operation and
execution of a decision which is the subject of an application for
leave to appeal or of an appeal,
is suspended pending the decision of
the application or appeal.
(2)
Subject to subsection (3), unless the court under exceptional
circumstances orders
otherwise, the operation and execution of a
decision that is an interlocutory order not having the effect of a
final judgment,
which is the subject of an application for leave to
appeal or of an appeal, is not suspended pending the decision of the
application
or appeal.
(3)
A court may only order otherwise as contemplated in subsection (1) or
(2), if the
party who applied to the court to order otherwise, in
addition proves on a balance of probabilities that he or she will
suffer
irreparable harm if the court does not so order and that the
other party will not suffer irreparable harm if the court so
orders.”
[10]
The section sets out the test for leave to put into operation and
execute an order pending the appeal process in fresh terms.
It
overtakes judicial authority that predates its enactment.
[5]
In the manner in which it is couched
,
section 18 makes it possible for a litigant to launch an application
envisaged therein even before an application for leave to
appeal has
been heard. In my view, especially regard being had to
the nature of the dispute between the parties, a
consideration of the
section 18 application before the application for leave to appeal is
heard does give rise to some difficulty.
In terms of section
17(1)(a) and (b) of the Act, leave to appeal may only be given where
the judge concerned is of the opinion
that the appeal would have a
reasonable prospect of success or there is some other compelling
reason why the appeal should be heard.
Entertaining the section
18 application before the leave to appeal application is heard would
mean that even the most frivolous
of litigants would, if successful,
be able to frustrate a victor with a strong case who wants to put
into operation and execute
an order, or a loser (with a strong case)
who seeks leave to appeal.
[11]
Section 17(2)(a) of the Act provides that leave to appeal may be
granted by the Judge against whose decision an appeal is to
be made
or, if not readily available, by any other Judge of the same court or
Division. In terms of section 48 of the Act
any person who has
been appointed as an acting Judge of a Superior Court must be
regarded as having been appointed also for any
period during which he
or she is necessarily engaged in the disposal of any proceedings in
which he or she has participated as
such Judge, including an
application for leave to appeal that has not yet been disposed of at
the expiry of his or her period of
appointment.
[12]
It is not the intention of the parties in this matter to have the
related leave to appeal application heard by a Judge other
than the
one against whose decision the appeal sought is to be made, as indeed
enquiries made have revealed that she is readily
available to hear
the leave application. All indications were that by the time
the leave to appeal application is heard by
Bacela AJ the transcript
embodying the
ex tempore
judgment would have come to hand
timeously, and the respondent supplemented his grounds for leave to
appeal.
[13]
In my view, it is expedient and proper to have the section 18
application heard immediately after the application for leave
to
appeal or simultaneously therewith by the Judge concerned, as indeed
she is better placed to pronounce on the matter and enquire,
in so
far as it may be necessary
,
into whether or not the appeal
sought enjoys a reasonable prospect of success, or whether the
opposition to the section 18 application
is a mere frivolous attempt
to delay the winning litigant her relief.
[14]
In the
Incubeta
[6]
case, the court decided the case without recourse to the merits and
to the
ex
tempore
judgment
whose transcription would not come about rapidly. As far as I
could have ascertained from a reading of the
Incubeta
case,
apart from exceptional circumstances (which are said to be fact
specific) that must be established is the question of weighing
the
competing parties’ interests (“
balance
of convenience or hardship”
).
[7]
In the instant matter, however, unlike in the
Incubeta
matter, the transcribed
ex
tempore
judgment will be availed to the parties timeously, and the Judge
concerned has availed herself to hear the leave to appeal application
rapidly. Moreover, the interest of the minor children, with
this court as upper guardian thereof, and not the competing interests
of the parties, is paramount.
[15]
I am also of the view that an approach that renders the judgment a
vacuous gesture undermining the role of courts in the ordering
of
social relations
[8]
ought to be
avoided as far as is possible. I distance myself from adopting
an approach that determines exceptional circumstances
and weighs
probabilities in isolation, without due consideration to the
underlying judgment. At the risk of being repetitive,
there can
be a proper consideration of exceptional circumstances and weighing
of balance of convenience against the background
of the merits of the
case and the judgment subject to the application for leave to appeal
or the appeal itself.
[16]
On the issue of costs, it was argued on behalf of the respondent,
that the applicant should pay the costs occasioned by the
postponement. The issue I raised with the parties is quite
novel and is based on the peculiar circumstances prevailing in
this
case, for which none of the parties is to blame. The applicant
is not to blame for having set down the section 18 application
before
me. I found the stance adopted by the respondent to have been
opportunistic, hence I did not uphold the same.
There remains
the question of reserved costs. The parties have been afforded
the opportunity to deliver further papers and
ventilate themselves on
the issue of costs, to enable the court hearing the section 18
application to pronounce properly on the
reserved cost issue.
_________________________
S
M MBENENGE
JUDGE
OF THE HIGH COURT
Counsel
for the Applicant
:
Ms D
Mostert
Instructed
by
: Wesley
Pretorius and Associates
Ground Floor, Pilot Mill
House
East London
Counsel
for the Respondent
:
Mr S G
Poswa
Instructed
by
: F T
Dengana Attorneys
22 Oxford Street
East London
Date
heard
: 24 November 2016
Date
postponement order issued :
24 November 2016
Date
reasons handed down
:
01
December 2016
[1]
This flies in the face of item 5.2.6 of the Norms and
Standards for the Performance of Judicial Functions issued by the
Office of the Chief Justice, which provides:
“
Judgments,
in both civil and criminal matters, should generally not be reserved
without a fixed date for handing down. Judicial
Officers have
a choice to reserve judgments
sine die
where the
circumstances are such that the delivery of judgment on a fixed date
is not possible. Save in exceptional
cases where it is not
possible to do so, every effort shall be made to hand down judgments
no later than 3 months
after the last hearing.”
(Emphasis added.)
[2]
In terms of section 16(3)(c) of the Superior Courts Act 10 of 2013
(the Act) “
notwithstanding
any other law, no appeal lies from any judgment or order in
proceedings in connection with an application for
the interim
custody of a child when a matrimonial action between his or her
parents is pending
.”
[3]
As at the time the matter served before me the
ex
tempore
judgment
subject to the application for leave to appeal had not been
transcribed.
[4]
Nothing
in this order should be construed as directing the Judge concerned
to hear the leave to appeal and section 18 application
simultaneously. Her discretion remains unfettered.
[5]
Incubeta
Holdings (Pty) Ltd v Ellis
2014 (3) SA 189
(GJ) at 194 B-D (where Sutherland J held that one
must now look exclusively to section 18 when leave is sought to
execute on
an order pending an application for leave to appeal or
the appeal itself i.e. whether or not exceptional circumstances
exist
(which involves a finding of fact) and proof on a balance of
probabilities of the presence or absence of irreparable harm).
[6]
Supra.
[7]
Ibid.
[8]
Compare
Incubeta
(supra
)
at para [28].