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[2014] ZAGPPHC 19
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Central Authority for the Republic of South Africa v R (6364/13) [2014] ZAGPPHC 19 (18 February 2014)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN THE HIGH COURT OF SOUTH AFRICA NORTHERN GAUTENG DIVISION,
PRETORIA
CASE
NO. 6364/13
DATE:
18 FEBRUARY 2014
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In the matter between:
THE CENTRAL
AUTHORITY FOR
THE REPUBLIC OF
SOUTH AFRICA
……………………………………
..
Applicant
and
E[…] S[…]
R[…]
…………………………………………
....
Respondent
JUDGMENT
1.
The applicant is the
Central Authority for the Republic of South Africa, designated as
such in terms of the Hague Convention on
the Civil Aspects of Child
Abduction (“the Convention”), which Authority is the
Office of the Family Advocate. The
Convention is part of South
Africa’s municipal law, having been incorporated into the
Children’s Act 38 of 2005. The
Chief Family Advocate delegates
her authority to other ad hoc Central Authorities. The applicant is
represented in these proceedings
by a family advocate in the
Authority’s Mbombela (Nelspruit) office, adv Bikiwe Mkhize,
(“Mkhize”), duly authorised
by the Chief Family Advocate.
2.
The respondent is E[...]
S[...] R[...], an adult South African citizen, residing at 5[…]
J[…] Street, M[…],
M[…], Mpumalanga.
3.
The respondent is the
mother of a boy, T[…] T[…] M[…], presently five
years old, having been born on the […].
(“the child”).
4.
The father of the child
is M[…] T[…] M[…], (“M[…]”),
a Zimbabwean national who, when last
heard of, was an unsuccessful
asylum seeker in the United Kingdom, (“UK”), formerly
resident at 2 W[…] Street,
G[…], M[…], UK.
THE BACKGROUND
5.
The respondent entered
the UK during 2004 on a two year working visa. When the visa expired
she stayed on in the UK and moved in
with friends in Birmingham. She
had met M[…] in 2006 and commenced a romantic relationship
with him. She fell pregnant in
2008.
6.
According to the
respondent, M[…] wanted her to terminate the pregnancy, which
she was not prepared to do. Their relationship
became stormy and they
separated until sometime after the child’s birth in Birmingham.
According to the respondent she and
M[…] separated prior to
the child’s birth. They reconciled thereafter, lived in council
homes depending on social
grants, and decided to apply for asylum at
M[…]’s suggestion. Their applications were turned down.
7.
Their relationship
remained stormy, while they lived in Liverpool and later in
Manchester, depending on social grants and being
accommodated in
council homes. The respondent relates that she was often assaulted by
M[…] and suffered verbal and emotional
abuse at his hands. As
illegal aliens neither the respondent nor M[…] could take up
employment in the UK, she contended.
8.
The respondent made
attempts to return to South Africa with the child, but could not
obtain M[…]’s consent to remove
the child from the UK’s
jurisdiction. Such consent was required by UK law even though the
respondent and M[…] were
never married.
9.
During February 2012 the
respondent obtained valid travel documents from the South African
embassy in London, allegedly on the representation
made by her to the
British Home Office under oath that the child’s father’s
consent could not be obtained, that she
was the child’s sole
custodian and that she was the child’s legal guardian.
10.
The respondent denies
that she removed the child illegally from the UK and claims that M[…]
consented, either expressly or
tacitly, to the child’s removal
to South Africa.
11.
The respondent arrived
in South Africa with the child on the 23
rd
February 2012
M[…] thereupon laid a charge with the UK police
and on the 23
rd
March 2012 approached the UK Central
Authority to obtain the immediate return of the child to what he
claimed was the child’s
habitual residence. The UK Central
Authority enlisted the assistance of its South African counterpart on
the 27
th
March 2012.
12.
Mkhize, having been
tasked to deal with this application, conducted an interview with the
respondent on the 26
th
April
2012 with an eye to effecting the voluntary return of the child to
the UK. The respondent refused to accede to this request.
She
described the conditions under which she and the child were forced to
live in the UK as intolerable, given the challenging
social milieu in
which they were forced to live under the constant threat of violence
and abuse from M[…]. The respondent
asserts that Mkhize agreed
with her that it was not in the child’s best interest to be
returned to the UK.
13.
In this context the
respondent emphasised that the child’s father had applied on
about six separate occasions for asylum in
the UK and had been turned
down every time. This meant that he was, and remains, an illegal
alien in that country, facing an uncertain
future.
14.
During the interview
with Mkhize respondent underlined that the child, a South African
citizen, is healthy, happy and well adapted
in a positive family
environment. She lives with her parents and is employed in the family
business. She was and is convinced that
the child’s best
interests will be compromised were he to be returned to the UK.
15.
Mkhize took no further
action until the end of January 2013. There is no explanation on the
papers why she allowed matters to lie
fallow until virtually the last
moment before the expiry of the one year period determined in Article
12 of the Convention for
the immediate return of the allegedly
abducted child:
'Article 12
Where a child has been wrongfully removed or retained
in terms of Article 3 and, at the date of the commencement of the
proceedings
before the judicial or administrative authority of the
Contracting State where the child is, a period of less than one year
has
elapsed from the date of the wrongful removal or retention, the
authority concerned shall order the return of the child forthwith.
The judicial or administrative authority, even where
the proceedings have been commenced after the expiration of the
period of one
year referred to in the preceding paragraph, shall also
order the return of the child, unless it is demonstrated that the
child
is now settled in its new environment.
Where the judicial or administrative authority in the
requested State has reason to believe that the child has been taken
to another
State, it may stay the proceedings or dismiss the
application for the return of the child."
16.
In
the founding affidavit Mkhize asserted that the child’s
habitual residence was the UK before the child was wrongfully removed
from the aforesaid jurisdiction. She disclosed that M[…] was
‘
an
asylum
seeker'
without dealing with any implication this status might have on his or
the child’s residence in the UK. The wrongfulness
of the
alleged removal or abduction was said to lie in the deprivation of
M[…]’s parental responsibilities. The Hague
Convention
therefore dictated that the child should be returned to the UK to
determine any dispute that might exist in regard to
parental rights
and responsibilities regarding the latter.
17.
In motivating the
applicant’s obligation in terms of the Convention to ensure the
mandatory return of the child to the jurisdiction
of the alleged
habitual residence, Mkhize opined as follows:
'If returned to the UK, T[…] will not face the
risk mentioned in the Hague Convention such as grave emotional abuse
and stress
or human rights abuse. UK is a country which respects the
rule of law, and it is a free and democratic State.'
18.
The urgency of the
application was caused by the need to apply
‘…
the provisions of the Hague Convention.'
The application was served upon the respondent with no
more than two days’ notice. The latter’s notice of
intention
to oppose was filed late according to correspondence
attached to the respondent’s affidavit. On the 5
th
March 2013 the court ordered the respondent to hand over
the child to applicant or its duly authorised representative within
twelve
hours of having been advised that the travelling arrangements
to return the child to the UK had been made. Failing compliance with
the order, the sheriff was authorised and directed to give effect
thereto.
19.
The order was not
enforced immediately. On the 2
nd
August 2013 the respondent launched what was called a
counter-application by way of urgency, seeking a reconsideration of
the order
in terms of Rule 6(12)(c), (the order having been granted
by way of urgency in the respondent’s absence); the setting
aside
thereof and an award of costs against the applicant upon the
punitive scale of attorney and client. In her affidavit motivating
the counterapplication, the respondent sketched the history of
her relationship with M[…] already adverted to above.
She
underlined that her student visa had expired and that her subsequent
application for asylum had been turned down. Before she
left for
South Africa she was therefore, according to her, an illegal alien in
the country of her son’s birth.
20.
She confirmed that
Mkhize had met with her and discussed the matter of the child’s
return to the UK with her. She added, however,
that Mkhize had agreed
with her that the child’s best interests required that the
status quo
be
maintained and that his return to the UK would not be advisable.
21.
The respondent’s
application was enrolled for the 13
th
August 2013. The file was delivered to the Judge’s
Chambers on the preceding Thursday to enable reading the file it was
evident
that the order to surrender the child was fraught with
potential harm being caused to the child, were it to be enforced in
its
existing terms. When the matter was called, it was discovered
that the file had been removed from the court room to which it had
been taken prior to the calling of the urgent roll. The court’s
registrar had been informed that the matter had been removed
from the
roll. The file was traced to the General Office and when it was
retrieved it contained a typed document purporting to
be a court
order. This document purported to record that this court had ordered
the removal of the matter from the roll. No such
order was ever made
and it could not be established who was responsible for procuring the
fake order. No notice to remove the matter
from the roll was filed at
any stage.
22.
The court is the upper
guardian of all minors. Apart from the fact that a matter had been
removed from the court without the court’s
authorisation or
knowledge, the court was deeply concerned that the existing order
might be, or had possibly already been, put
into operation. Enforcing
the order to surrender the child without more could, and probably
would, in this court’s strong
prima
facie
opinion, irrevocably prejudice the
child’s welfare and best interests. An enquiry was therefore
launched to establish the
correct state of affairs and to ensure that
the child’s best interests were safeguarded. The court was
indubitably entitled
and obliged to act in this fashion as the
child’s upper guardian and by virtue of section 28 (2) of the
Constitution.
23.
lt emerged that junior
counsel, who had no knowledge of the matter, had been briefed on the
morning of the 13
th
August
2013 merely to remove the matter from the court roll, apparently
because the applicant intended to oppose the respondent’s
counter-application and intended to file an answering affidavit in
due course. This counsel was responsible for removing the file
from
the court room after informing the court’s registrar that the
matter would be removed, without placing his presence
on record and
ensuring that the court consented to the proposed course of action.
In this he was clearly remiss. Had he followed
the proper practice
and informed the court of the fact that the matter would be removed
by agreement, the court would have raised
its concerns about the
child’s welfare with him before allowing the case to be
postponed or to be removed from the roll.
The practice manual of the
North Gauteng High Court provides as follows for the removal of
opposed applications:
‘
2.13 A party
who has enrolled a matter may not after enrolment, without the leave
of the court, file any further documents other
than a notice of
removal, a notice of withdrawal, a notice of postponement, a practice
note and an official document or report.
2.14
Parties who are
in terms of the rules entitled to file documents in matters that have
been enrolled shall do so by handing the document
to the supervisor
who shall stamp it and file it in the appropriate file.
2.15
When
a matter is removed from the roll by notice, the supervisor shall
stamp the notice of removal, file the notice in the file
and return
the file to the general office for filing. The supervisor shall also
delete the entry pertaining to that matter from
the register and sign
his or her name next to the deletion with the date of the deletion.
Other than this no entry may be removed
from the register of opposed
motions and no file may be removed from the secure location for any
purpose other than to take the
files to the senior judge in the
opposed motion court.'
These
rules apply equally to opposed urgent matters.
The manner in which the purported court order to remove
the matter from the roll came to be typed and placed in the file
remained
a mystery, however.
24.
As the court required a
number of issues arising from the papers to be addressed by the
parties with an eye to the further conduct
of the proceedings, the
matter was re-enrolled and the parties were requested to proceedings,
the matter was re-enrolled and the
parties were requested to attend
on the morning of the 16
th
August 2013. When the matter was called counsel appeared
for the respondent and Mr Netshifhefhe of the State Attorney’s
Office
represented the applicant Central Authority. It was common
cause that the existing order should not be enforced pending the
finalisation
of the respondent’s application. On behalf of the
Central Authority Mr Netshifhefhe placed the following on record:
‘…
we
have agreed with the respondent, that this matter be transferred to
the normal court because we have undertaken that we are not
going to
(enforce the order). I also want to place on record ... there was an
email that the reason why we did not get instructions
from the
central authority
...
it was because the central authority are moving offices, they will
only be available from the 26
th
of August to
determine the applicant is legally residing in England.'
25.
According to Mr
Netshifhefhe Mkhize was not aware of the fact that the respondent was
also an illegal alien in the UK, but that
this question would be
raised with their counterparts in England to establish the
respondent’s present status in the UK.
The court then placed seventeen questions on record for
the parties to deal with at the next hearing. These questions
related
to the parties’ respective status in the UK, what
knowledge Mkhize had of the parties’ status when the original
urgent
application to surrender the child was launched, who would
care for the child if he had to be surrendered without his mother
being able to accompany him, how the child would be maintained
financially, whether the child’s father might possibly be
deported from the UK as an illegal alien and what fate would befall
the child if such a deportation order were be enforced. The
parties
undertook to address these issues at the next hearing.
27.
The matter was
postponed to the 25
th
September
2013, the purported order removing the matter from the roll was set
aside and the court’s original order of the
5
th
March 2013 was suspended pending the finalisation of the
matter.
28.
On the 18
th
September 2013 the court received a hand delivered
letter from Mr Nesthifefe that had been copied to the respondent’s
attorneys
of record, which recorded that the applicant had been
unable to obtain ‘instructions’ from its counterpart in
England
or M[…], and that therefore ‘... we are unable
to file our papers as per Court direction and agreement between the
parties.
1
The
applicant thereafter failed to file any affidavit, even though
several of the questions dealt directly with the knowledge Mkhize
had
of the matter before the application to return the child to the UK
had been launched. No explanation was proffered under oath
why these
matters were not addressed.
29.
On the 25
th
September 2013 the respondent was represented by counsel
and attorney, but there was no appearance for the applicant. The
court
caused Mr Nesthifefe to be contacted telephonically to inform
him that his presence was required at court. According to the
information
conveyed to the court by respondent’s counsel his
reaction was that he was ‘too busy
1
to attend court. (His response was common cause when the
matter proceeded at a later date.)
30.
The court thereupon
issued a warrant for Mkhize’s arrest for failing to comply with
the court’s order of the 16
th
August 2013 and ordered both her and Mr Netshifhefhe to
attend court on 15
th
October
2013 to show cause why they should not be held to be in contempt of
court and be dealt with according to law. Mkhize was
further ordered
to deal with the questions the court had raised at the first hearing.
The matter was postponed to the 15
th
October
2013.
The
warrant for Mkhize’s arrest was suspended pending the hearing
on that date.
31.
The parties were
ordered to file their further papers on or before the 12
th
October 2013.
32.
On the 11
th
October 2013 the court received a letter from Mr
Netshifhefhe, which was not copied to the respondent’s
attorneys, in which
the court was informed that, as the 12
th
October 2013 was a Saturday,
‘…
we
are therefore taking the liberty of filing our papers on Monday 14
October 2013. We hope the above is in order.'
33.
Mkhize’s
affidavit was filed on the next court day, the 14
th
October 2013. Inasmuch as its content may be relevant,
it will be dealt with below. During the afternoon of the same day,
the Judge
received a call from Ms Pillay of the State Attorney’s
Office. She proceeded to inform the Judge that counsel who was to
represent Mkhize and Netshifhefhe was unavailable to attend the next
day, and that the matter would therefore have to be postponed.
Upon
enquiry whether the respondent’s attorneys were aware of her
call she answered in the negative. Her attention was pertinently
drawn to the fact that it was unacceptable to contact the Judge
directly in the absence and without the knowledge of the other
party
to the dispute and that, in any event, communications of the nature
under discussion needed to be made under oath in an affidavit.
In
spite of this stern advice Netshifhefhe shortly thereafter called
upon the Judge’s clerk to deliver a letter containing
a similar
message, requesting a hearing on the 16
th
October 2013.
34.
The
Judge thereupon advised the office of the State Attorney that he
could not deal with the matter in the absence of the other
party and
no decision could be taken without the latter’s consent. The
Judge’s written note was copied to the respondent’s
legal
advisers.
35.
The next morning the
applicant, represented by Ms Pillay, formally withdrew the
applicant’s opposition to the rescission application
and
consented to the order of the 5
th
March 2013 being set aside. A notice to this effect was
filed, but no costs were tendered. The respondent insisted upon an
order
rescinding the original order of the 5
th
March 2013 and an award for costs on the scale of
attorney and client as well as a finding that Mkhize and Netshifhefhe
were in
contempt of court. The original order was rescinded and the
matter was enrolled for the 5
th
December 2013 for argument on the remaining issues of
costs and the question whether Mkhize and Netshfefe were in contempt.
The
warrant for Mkhize’s arrest was cancelled once there was no
issue on the merits left to be decided by the court. (It should
be
added in parenthesis that there is ample authority that counsel’s
unavailability is no adequate ground for a postponement,
which
authorities it is not necessary to refer to at this stage. The court
granted the postponement because Mkhize and Netshifhefhe
might feel
prejudiced if they were represented by someone other than the senior
counsel they had consulted).
36.
Once the opposition to the rescission
application was withdrawn and the original order set aside, the
question of any contempt that
might have been committed upon the
court by Mkhize or Netshifhefhe no longer needed to be addressed in
summary proceedings to protect
the integrity of the process: S v
Mamabolo (E TV & Others Intervening)
[2001] ZACC 17
;
2001 (3) SA 409
(CC);
(2001
(1) SACR 686
;
2001 (5) BCLR 449)
, in particular at par [65], where
Kriegler J said: ‘It would be a very serious matter indeed,
calling for speedy and decisive
action, if the order had actually
been defied. The spectre of executive officers refusing to obey
orders of court because they
think they were wrongly granted is
ominous.'
37.
Should the court have
been of the opinion that the conduct complained of warranted
punishment, the matter must be referred to the
Office of the Director
of Public Prosecutions for its consideration; see: Mamabolo, supra at
para [51] and [52].
38.
Mkhize filed an
affidavit to explain her actions prior to the 5
th
December 2013, without dealing with the questions the
court had posed as set out above. Counsel for the applicant and the
two individuals
argued strenuously against a finding that Mkhize and
Netshifhefhe were in contempt. Relying upon Mkhize’s affidavit
he submitted
that whatever failure to comply with the ethics of their
professions, or to comply with the law and practice might be evident
from
its contents, no intention to insult or scandalize the court
could be attributed to them.
39.
Turning then to
Mkhize’s affidavit, the following allegations made therein are
relevant:
a)
.Mkhize states in par 34
of her affidavit that it was not disclosed in the original
application that Mr M[…] was an asylum
seeker ‘..
.as
this information was not at our disposal
..’.
This assertion is in stark conflict with her founding affidavit in
the principal application, which describes the child’s
father
as an asylum seeker in paragraph 8 thereof.
b)
She adds in par 34 that
the applicant could not have known under which circumstances
respondent was led to remove the child from
the UK as the mother did
not oppose the principal application. This statement appears to
contradict her allegation in the founding
affidavit that she
conducted a mediation meeting with the respondent as early as the
28
th
April 2012.
It would appear to be unlikely in the extreme that the reasons for
respondent’s flight from the UK would not be
discussed at this
juncture; as indeed testified to by the respondent. The assertion
that respondent did not oppose the principal
application is incorrect
as is evident from the facts already recorded.
c)
After obtaining the
order to return the child to the UK she met the respondent on the
13
th
March 2013 to
collect the child’s travel documents. Upon being informed that
no such document existed, she advised the respondent
to obtain such
as a matter of urgency.
d)
She advised the Chief
Family Advocate of these developments on the 14
th
March 2013.
e)
Meanwhile, the Chief
Family Advocate had requested her UK counterpart to ensure that the
child's father made appropriate travel
arrangements for the child’s
return.
f)
The father has failed to
communicate with the applicant or its UK counterpart ever since,
apart from sending a message that he had
referred the rescission
application to his solicitor.
g)
This led to the letter
of the 18
th
September
2013 being addressed to the presiding Judge and the respondent’s
attorneys of record by the State Attorney’s
Mr Netshifhefhe,
which has been quoted above
h)
Mkhize’s affidavit
continues in par 31 thereof:
‘
For the
reasons stated above, on 25 September 2013 there
was no
appearance on behalf of the applicant. It would have served no
purpose for the applicant to attend Court on the 25
th
September 2013
simply to inform the Court that the applicant holds no instructions
as mentioned in the preceding paragraphs. I am
advised that in the
circumstances, the Court ought to have granted the respondent the
relief sought..'
i)
After quoting the order
made by the court on the 25
th
September 2013, Mkhize continues:
‘
I
am
advised that it is unprecedented for a Court to hold a party to
proceedings in contempt for failure to oppose an application.
...I am
still dumbfounded by the Order of the Court since I do not know what
I did wrong or what part of the Court Order I contravened
or failed
to comply with. I am a family advocate and not an immigration
specialist The questions posed by the Court relating to
the
immigration status of mr M[…] and Immigration Laws of England
do not fall within my purview or my area of practice
..
.(B)esides,
the parties had agreed to remove the matter from the court in order
to enable the applicant to investigate the allegations
raised in the
respondent’s affidavit This arrangement
was
made
in order to alleviate unnecessary costs for the parties and to
attempt to resolve the matter out of court. I am advised that
it is
extraordinary for a court to override the agreement of the parties
and order that the matte be heard at the convenience of
the Judge
especially when the matter is not part heard. ’
j)
She concludes that, if contempt
of court was raised by the Judge himself, he would be a complainant
and would be biased against
herself and the State Attorney. She
denies any intention of holding the court in contempt. Netshifhefhe
did not file any affidavit
to explain his actions.
ANALYSIS AND FINDINGS
40.
The Convention can only
find application if a child has been removed unlawfully from the
jurisdiction of the child’s habitual
residence. (Article 3).
The concept of ‘habitual residence’ implies a stable
territorial link, as set out by N C Erasmus
J in
Senior
Family Advocate, Cape Town, & Another v Houtman
2004
(6) SA 274
(C) at para [7] to [11]:
'The father in this matter clearly bears the onus to
establish the jurisdictional prerequisites for the summary return of
EB to
the Netherlands. The question of onus was discussed as follows
by Scott JA in Smith v Smith2001 (3) SA 845 (SCA) ([2001]
3 All SA
146)
at 850J
:
“
.
.
(A) party seeking the return of a child under the
Convention is obliged to establish that the child
was
habitually resident in the country from which it was
removed immediately before the removal or retention and that the
removal or
retention was otherwise wrongful in terms of art 3. Once
this has been established the onus is upon a party resisting the
order
to establish one or other of the defences referred to in art
13(a) and (b) or that the circumstances are such that the refusal
would be justified having regard to the provisions of art 20
.'
The function of this Court is to decide whether the
Convention applies in this matter and if so, whether the limited
exceptions
that give rise to a discretion not to order the return of
the child are warranted.
Habitual
residence
[8]
The first matter at
issue is whether the father has established that the child
M/as habitually
resident in the Netherlands at the time of her removal to South
Africa, on 19 September 2002. Every case that is
brought pursuant to
the Hague Convention on the Civil Aspects of Child Abduction requires
the Court to determine the habitual residence
of the child in
question. This concept is key to the operation of all aspects of the
Convention, and yet, it is not defined by
the Convention itself.
Consequently, the expression habitual residence has been interpreted
according to 'the ordinary and natural
meaning of the two words it
contains, [as] a question of fact to be decided by reference to all
the circumstances of any particular
case'. The intention being to
avoid the development of restrictive rules as to the meaning of
habitual residence 'so that the facts
and circumstances of each case
can be assessed free of presuppositions and presumptions'.
[9]
However, the
fact that there is 'no objective temporal baseline' on which to base
a definition of habitual residence requires that
close attention be
paid to subjective intent when evaluating an individual's habitual
residence. When a child is removed from its
habitual environment, the
implication is that it is being removed from the family and social
environment in which its life has
developed. The word 'habitual'
implies a stable territorial link; this may be achieved through
length of stay or through evidence
of a particularly close tie
between the person and the place. A number of reported foreign
judgments have established that a possible
prerequisite for 'habitual
residence
1
is some 'degree of
settled purpose' or 'intention'.
[10]
A settled iniention or
settled purpose is clearly one which will not be temporary. However,
'it is not something to be searched
for under a microscope. If it is
there at all it will stand out clearly as a matter of general
impression.' Where there is no written
agreement between the parties
and where the period of residence fails to indicate incontrovertibly
that it is habitual, it is accepted
that the Court may look at the
intentions of the person concerned. In practice, however, it is often
impossible to make a distinction
between the habitual residence of a
young child and that of its custodians - it cannot reasonably be
expected that a young child
would have the capacity or intention to
acquire a separate habitual residence. In Re F (A Minor) (Child
Abduction)
[1992] 1 FLR 548
at 551 D Butler-Sloss J stated:
'a young child cannot acquire habitual residence in isolation from
those who care for him. ‘
Consequently,
although it is the habitual residence of the child that must be
determined, the desires and actions of the parents cannot be ignored.
. . . The concept of habitual residence
must..
. entail some element of voluntariness and purposeful design.'
It then becomes necessary to analyse the parents'
shared intentions regarding the child's residence. Where there is
contrary expressed
parental intent, as in this instance, it then
becomes necessary to determine whether the child has a factual
connection to the
state, and knows something of it, culturally,
socially and linguistically.
[11] It is clear
that habitual residence must be determined by reference to the
circumstances of each case.
’
Fabricius J adopted the same approach in Central
Authority v MR (LS Intervening)
2011 (2) SA 428
(GNP) at para [20] to
[22]:
'[20]
What does 'habitual residence
’
mean
in the present context?
This concept is not
defined by the Convention itself. It has been interpreted according
to 'the ordinary and natural meaning of
the two words it contains, as
a question of fact to be decided by reference to all the
circumstances of any particular case'. The
intention thereby is to
avoid the development of restrictive rules as to the meaning of
'habitual residence', so that the facts
and circumstances of each can
be assessed free of presuppositions and presumptions. However, the
fact, that there is no 'objective
temporal baseline' on which to base
a definition of habitual residence, requires that close attention be
paid to the subjective
intent when evaluating an individual's
habitual residence. When a child is removed from its habitual
environment, the implication
is that it is being removed from the
family and social environment in which its life has developed. The
word 'habitual' implies
a stable territorial link, which may be
achieved through length of stay, or through evidence of a
particularly close tie between
the person and the place. A number of
reported foreign judgments have established that the possible
prerequisite for 'habitual
residence' is some 'degree of settled
purpose' or 'intention'. A settled intention or settled purpose is
clearly one which will
not be temporary. However, it is not something
to be searched for under a microscope. If it is there at all it will
stand out clearly
as a matter of general impression. I do not lose
sight of the fact that it is often impossible to make a distinction
between the
habitual residence of a young child and that of its
custodians. See Senior Family Advocate, Cape Town, and Another v
Houtman2004
(6) SA 274 (C) paras 8-11.'
41.
An asylum
seeker is, by definition, a person who is attempting to establish a
new residence after her or his flight from danger,
violence,
oppression or discrimination. They are ‘
...
people who claim to be taking refuge in this
country
from persecution or conflict elsewhere
’
(per
Nugent J in
Minister
of Home Affairs & Others v Watchenuka & Another
2004
(4) SA 326
(A) at para
[1] Pending
the finalisation of any process to obtain permission to take refuge
in the country the asylum seeker has entered uncertainty
must prevail
whether residence of any permanence can become reality. It is
therefore conceptually difficult to reconcile the transient
state of
the asylum seeker’s presence in the country that is requested
to allow him to stay with the stable territorial link
that
characterises habitual residence. Mkhize has annexed to her affidavit
correspondence with the UK Central Authority in which
the latter
opines that immigration issues have no bearing on Convention
applications. This is incorrect. Asylum issues have been
considered
in several Convention cases in the UK, see e.g. R & F (Children)
(Abduction Removal Outside Jurisdiction)
[2008] EWCA Civ.854
, of
which the ruling of a three judge bench is recorded as follows:
‘
... return ordered, notwithstanding the period of
almost three years spent in the UK. it was in the best interests of
the children
to return to Mozambique, their mother; a failed asylum
seeker; having no realistic prospect of being allowed to remain.'
42.
Mkhize was clearly
aware of M[…]’s status as asylum seeker. Before she
launched the urgent application she consulted
the respondent. The
latter declares under oath that she disclosed the full circumstances
of the conditions that led to her returning
to South Africa. Absent a
denial by Mkhize, and in any event on the overwhelming probabilities,
the court must hold that Mkhize
was also aware of the fact that the
respondent was a failed asylum seeker when she swore to her founding
affidavit. By the same
token she must have been aware through her
discussions with the respondent that M[…]’s applications
for asylum had
failed. There can exist no shadow of doubt that she
was in duty bound, as an officer of the court, as a member of the
office of
the Family Advocate and as a deponent on behalf of an organ
of State litigating against a single mother, and most importantly in
the interests of the child who was the object of the application to
fully disclose these facts The mere recording of these circumstances
would have conveyed to the court hearing the application that
significant threats to the psychological, emotional and physical
health of the child could arise if the child were to be ordered to be
returned to the UK, as the boy of tender years might very
well be
forced to travel without his mother to be met by a father who himself
faced an uncertain future. By the same token Mkhize
was in duty bound
to investigate the question whether an asylum seeker, especially one
whose repeated applications had been refused,
could be said to have
established any residence at all in the UK, let alone a habitual one.
She was further clearly obliged to
point out to the court at the
hearing of the application that the applicant might not have made out
a prima facie case that the
Convention was applicable to the present
set of circumstances. She was equally in duty bound to earnestly
consider whether the
order she sought ought not to be made subject to
appropriate conditions to ensure the child’s safety and
emotional, psychological
and physical integrity.
43.
Even if Mkhize did not
appreciate all the implications of the child’s parents both
being unsuccessful asylum seekers in the
UK, she must have been aware
that this unusual feature might have an impact on the child’s
best long term interests, which
must be served in every Convention
application: Sonderup v Tondelli & Another
2001 (1) SA 1171
(CC),
in particular at para [26] to [35]. Goldstone J held that the child’s
best short term interests might be impaired by
ordering his or her
return to the jurisdiction of the habitual residence. Such a
limitation of the rights enshrined in section
28 (2) of the
Constitution was, however, justifiable in terms of section 36 thereof
as the long term interests of the child’s
custody and access
would best be served by allowing the courts of the habitual residence
to determine custody and other issues
relating to the child’s
wellbeing; always provided that there was no proof to the contrary as
envisaged in Article 13 of
the Convention:
'A
South
African court seized with an application under the Convention is
obliged to place in the balance the desirability, in the
interests of
the child, of the appropriate court retaining its jurisdiction, on
the one hand, and the likelihood of undermining
the best interests of
the child by ordering her or his return to the jurisdiction of that
court.
A
s
appears below, the court ordering the return of a child under the
Convention would be able to impose substantial conditions designed
to
mitigate the interim prejudice to such child caused by a court
ordered return.’
44.
The questions which
this court posed after the matter had been re-enrolled were in a
large measure directed at highlighting these
problems. Apart from the
fact that Mkhize ought to have appreciated their import prior to
launching the urgent application, her
comment upon the reasons why
the court reenrolled the matter on the 16
th
August is misplaced. The court was not afforded the
courtesy of having a copy of the respondent’s letter recording
the parties’
agreement to postpone the matter filed of record.
Once a matter has been enrolled the court must be advised if it is to
be removed
other than by notice filed in good time and served on all
parties to the dispute. Had this practice been followed the court
would
have been able to raise its concerns as explained above.
45.Our courts have often, as they are entitled and,
indeed, often obliged to do, required parties to supplement their
papers and
to provide further facts and argument to enable the court
to fully understand the matter at hand, and, in particular, to enable
the court to protect the interests of vulnerable individuals,
especially children. The dangers posed to the child by the
unqualified
order sought and granted in March 2013 ought to have been
self-evident. At the very least, the court might have wished to be
advised
why a rider should not be added to the order that the child
ought not to be surrendered unless and until there was proof that
M[…]
had established permanent residence in the UK. This was
part of the purpose of the questions put to the parties. It is very
difficult
to lend credence to Mkhize’s protestations that she
had no knowledge of immigration law and was unable to deal with the
court’s
questions regarding asylum. If she was indeed unable to
understand the import of the position M[…] and the respondent
found
themselves in, she was obliged to obtain expert advice on the
potential implications their status might have on the health and
happiness of the child before launching the urgent application.
46.
Her further suggestion that the court was holding her in
contempt for failing to oppose an application and was taking an
unprecedented
step by so doing, and that the court should merely have
granted the (by now unopposed) application for rescission of the
original
application is a misrepresentation of the facts. As at 25
September 2013, the applicant had not consented to the setting aside
of the original order, or abandoned its opposition to the counter
application for its rescission. That step was only taken in October
2013 as set out above. It would appear that the applicant was hoping
that if it and its legal advisers played possum on the 25
th
September 2013, the uncomfortable questions posed by the
court would go away through a default rescission judgment being
granted
in the applicant’s absence. Mkhize does not state
whether she and Netshifhefhe appreciated that the court had issued an
order
that must be complied with. As officers of the court they must
have been fully aware that court orders have to be implemented,
however irksome, irrational or wrong these orders may be, until the
orders are revoked or overturned on appeal. As Froneman J (as
he then
was), writing for the unanimous court, stated in Burchell v Burchell
case No 364/2005 (ECD) (not reported) at par 10:
'Compliance with court orders is an issue of
fundamental concern for a society that seeks to place itself on the
rule of law. The
Constitution states that the rule of law and
supremacy of the Constitution are foundational values of our society.
It vests the
judicial authority of the state in the courts and
requires other organs of state to assist and protect the courts. It
gives everyone
the right to have legal disputes resolved in the
courts or other independent and impartial tribunals. Failure to
enforce court
orders effectively has the potential to undermine
confidence in recourse to law as an instrument to resolve civil
disputes and
may thus impact negatively on the rule of law.'
(Footnotes omitted)
The failure to give effect to the court order may prima
facie be contemptuous of the court. Contempt is only such if there is
a
deliberate intention to insult or scandalise the court. Given
Mkhize’s and Netshifhefhe’s lackadaisical approach to
law
and practice it is possible that they simply failed to apply their
minds to what they were about when they attempted to avoid
the
unpleasant consequences the ill-advised application for the order to
surrender the child had caused, by doing as little as
possible. Much
as their actions fail to meet the standards of their professions, it
is not possible to conclude that the intention
to commit contempt is
the only reasonable inference to be drawn from their behaviour. There
will therefore be no referral of this
matter to the National Director
of Public Prosecutions.
47.
Unfortunately the neglect to obey the court’s
order was not the only failure on the part of the applicant and its
attorneys
to observe the Rules and practice of this court and the
ethics of their professions. In the first instance it was in stark
conflict
with the Rules and practice to send a letter on the 18
September 2013 to the court to inform it that no affidavits would be
filed
in spite of the court’s order to do so. Rule 27 is clear:
‘
27
Extension of Time and Removal of Bar and Condonation
(1)
In the absence
of agreement between the parties, the court may upon application on
notice and on good cause shown, make an order
extending or abridging
any time prescribed by these Rules or by an order of court or fixed
by an order extending or abridging any
time for doing any act or
taking any step in connection with any proceedings of any nature
whatsoever upon such terms as to it
seems meet
(2)
Any such
extension may be ordered although the application therefor is not
made until after expiry of the time prescribed or fixed,
and the
court ordering any such extension may make such order as to it seems
meet as to the recalling, varying or cancelling of
the results of the
expiry of any time so prescribed or fixed, whether such results flow
from the terms of any order or from these
Rules.
(3)
The court may, on good
cause shown, condone any non-compliance with these Rules.'
48.There has been no explanation for the failure to
observe the Rule. It is probable, given the history of this matter,
that the
applicant and its legal advisers were again playing possum
by failing to take the court into their confidence under oath. Such
approach to the court and its Rules is regrettable, to say the least.
The same applies to Netshifhefhe’s letter unilaterally
extending the deadline for the filing of Mkhize’s affidavit.
49 The same must clearly be said of Netshifhefhe's
refusal to attend court, even when expressly called to do so. His
answer that
he was too busy was rude and unbecoming of an officer of
the court. It might under different circumstances indeed be held to
amount
to actual contempt.
50.
Pillay's action in contacting the judge directly,
without the knowledge and consent of her opponent, is a flagrant
transgression
of the professional ethics. It is a fundamental
principle of the adversarial system that no party my approach the
court on its
own, least of all without the other party’s
knowledge.
“
A judge is
unjust who hears but one side of a case, even though he decide
justly.” Seneca (4 BC- AD65)’
Her telephone call placed the court in a difficult
position. It might have prejudiced the entire hearing.
51.
This litany
of failures on the part of Mkhize and the State Attorney’s
officers to observe both law and practice fills one
with disquiet.
The principal application should never have been launched in the
manner in which it was presented to court. The
health and happiness
of an innocent child was potentially jeopardised and both the court
and the respondent and her legal advisers
were put to unnecessary
trouble and inconvenience, The respondent was needlessly caused
distress and forced to incur unnecessary
costs, aggravated by
additional hearings, all through the neglect of officers of the court
employed by organs of state to properly
fulfil their professional
obligations. It is only fair that the applicant be ordered to pay all
of the respondent’s costs.
This expense will have to be funded
by the hapless taxpayer. Should failures of the nature highlighted in
this judgment occur again
on the part of the applicant or the State
Attorney, serious consideration will have to be given to hold the
individuals concerned
liable for the wasted costs in their personal
capacity, de bonis propriis.
ORDER:
1.
It is confirmed that the
order surrendering the child T[…] T[…] M[…] to
the UK in terms of the Hague Convention
on the Civil Aspects of Child
Abduction granted on the 5
th
March 2013 has been set aside.
2.
The applicant is ordered
to pay the respondent’s costs of the entire proceedings on the
scale of attorney and client.
Dated At Pretoria on this 18
th
day of
February 2014.
E Bertelsmann
Judge of the High Court