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[2013] ZAGPPHC 123
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X.K.V v M.S.V (2006/12) [2013] ZAGPPHC 123 (15 May 2013)
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IN
THE HIGH COURTOF SOUTH AFRICA (NORTH GAUTENG, PRETORIA)
CASE
NO: 2006/12
DATE:15/05/2013
In
the matter between:
XK-V
…...........................................................................................................
Applicant
and
MSV
..................................................................................................................
Respondent
JUDGMENT
MAKGOKA,
J:
[1]
The applicant seeks, on an urgent basis, a variation of an order of
this court made on 22 June 2012. The application is opposed
by the
respondent. The parties are involved in an acrimonious divorce
pending in this court. On 22 June 2012 a rule 43 application
brought
by the respondent came before court. In that application, the
respondent sought, among others, primary residence of the
parties’
three minor children, aged 10, 3 and 2 years old, respectively. The
younger children are girls. At that stage, the
two elder children’s
primary residence was with the respondent. Upon hearing the matter,
the court (Msimeki J) made an order
directing the Family Advocate to
urgently investigate the best interests of the children with regard
to their primary residence
and contact. Pending that investigation
and report, the status quo in respect of the minor children remained.
[2]
On 7 September 2012 the Family Advocate released an interim report,
in which it is recommended that the applicant be referred
for
pathological tests regarding allegations of alcohol abuse, and for
both parties to chose one psychologist to conduct psychological,
emotional and behavioural assessment of the minor children and of the
parties, as well as their parenting skills and capabilities.
[3]
On 25 March 2013 the elder children visited the applicant in Mthatha,
Eastern Cape, for the school holidays. The children were
supposed to
return to Gauteng when schools re-opened on 9 April 2013. The
applicant did not return the children, claiming that
both of them had
expressed their reluctance to return to Gauteng. As a result, on 10
April 2013 the applicant launched an urgent
application, set down for
12 April 2013 at 11h00. In the application, she prayed for the
issuance of a rule nisi calling upon respondent
to show cause on 18
April 2013 at 10h00 why an order varying the order of 22 June 2012,
placing the primary residence of the elder
children with the
applicant, should not be made ‘final’ pending the
finalization of the rule 43 application referred
to above.
[4]
The respondent served an answering affidavit on 12 April 2013. On the
same day, the applicant removed the matter from the urgent
roll of 12
April 2013, and simultaneously enrolled the application on the urgent
roll of 16 April 2013. The matter was however,
not placed on the
roll, as apparently, the registrar of Prinsloo J, who was in the
urgent court during that week, declined to accept
the papers.
[5]
On 19 April 2013, the respondent, accompanied by members of the South
African Police Service (SAPS) showed up at the applicant’s
residence in Mthata and demanded that the two children be returned to
his care, as per the order of 22 June 2012. Eventually, the
elder boy
left with the respondent, but for reasons which are controversial,
his little sister remained in Mthata with the applicant.
[6]
On 8 May 2013 the respondent brought a contempt application against
the applicant for failing to release the girl to his primary
residence as per the order of 22 June 2013. The court (Maumela J)
issued an order that the girl be returned to the primary care
of the
applicant as per the court order of 22 June 2013. The contempt
application was postponed sine die, and the applicant was
granted
leave to file her answering affidavit in the contempt application,
within 20 days of the order.
[7]
On 13 May 2013 the applicant launched, on an urgent basis, an
application in terms of rule 43(6) seeking to vary the court order
of
22 June 2013 in such a manner as to award primary residence of the
two elder children to the applicant, pending the finalization
of the
pending rule 43 application. The application was set down on the
urgent roll of 14 May 2013.This is how the application
came before
me. The practice directive of this court provides that if an
application is not filed (bound, indexed and paginated)
by 12h00 on
the previous Thursday (subject to to the degrees of ascending
urgency), the application will not be heard and it will
be struck off
the roll. The founding affidavit, though paginated, is not indexed.
The answering and replying affidavits are both
neither paginated nor
indexed. The papers are not bound. The court file is in an
unorganised, disgraceful and confusing state.
When I received the
file, it was very difficult to follow what was being sought. The
applicant’s founding affidavit in the
application launched on
10 April 2013, was not on the court file, and was only handed up in
court during argument.
[8]
Ms. Ensiin, counsel for the respondent argued that the relief sought
by the applicant is incompetent, as, so was the argument,
there was
no order in terms of rule 43. As such, so counsel contended, there
can not be a variation of a non-existing order. Counsels
submission
in this regard is premised on the fact that the rule 43 application
had been postponed sine die, and no order was made.
I disagree. The
order awarding the interim primary residence of the two elder
children to the respondent, is an ‘order’
capable of
being varied in terms of rule 43(6).
[9]
However, that is not the end of matter. Urgency remains heavily
disputed. I turn now to consider that aspect. Mr. Makhambeni,
counsel
for the applicant, urged me to disregard the clearly non-compliance
with the directive of this court concerning urgent
applications.
Counsel submitted that I am entitled to do so under the rubric ‘in
the interest of the minor child’.
It is correct that the
practice directive remains only that - a directive, and in suitable
circumstances, a Judge, exercising a
discretion, may depart from the
directive.
[10]
In the matter before me, as outlined above, the matter has been on
the urgent roll on 12 April 2013, where it was removed,
as clearly,
the matter could not be heard as the respondent had only filed his
answering affidavit that morning. But this should
have been foreseen
by the applicant. Given the acrimonious history between the parties,
it was more than likely that the application
would be opposed, and
that the application was unlikely to be heard that day. In this
regard, para 8 of the practice directive
provides:
‘
In
accordance with the Republikeinse Publikasies judgement an applicant
may choose to set the matter down on any Tuesday (or other
day, in
accordance with the degrees of urgency referred to in Luna Meubel
Vervaardigers), but is the applicant does not wish to
have the matter
heard on that day at the time indicated it is wrongly enrolled and
the procedure abused. If an applicant anticipates
that the
application will be opposed it is essential that the respondent and
the applicant be allowed reasonable times for the
filing of answering
and replying affidavits before the roll closes at 12:00 on Thursday.
If these affidavits cannot be filed in
time and the matter cannot be
heard at the time indicated in the notice of motion the procedure is
abused’.
[11]
Then there was a failed attempt to place the matter on the roll on 16
April 2013. Even at that stage, the matter was not ripe
for hearing
as the applicant had not yet filed her replying affidavit, which was
only deposed to on 18 April 2013, and filed only
on 3 May 2013.
Therefore, even if the matter was enrolled for 16 May 2013, the
likelihood is that it would not have proceeded,
for the reason that
the full set of papers were not before court.
[12]
There is no credible evidence that the lives of the two elder
children are in any manner, in imminent danger while in the primary
residence of the respondent. Children, especially of that young age,
are impressionable, and may express unhappiness about this
or that
factor while in the care of a parent. But that is no basis to suggest
imminent danger to them. I therefore come to the
conclusion that the
applicant is abusing the process of this court. Apart from abuse of
the process of this court, the applicant
has demonstrated total and
flagrant disregard for the most basic requirements of the practice of
this court regarding pagination
and indexing, which I have set out in
detail in paragraph [6] above.
[13]
The application has to be struck from the roll. I have to consider
the question of costs in light of my finding that the applicant
disregards, and abuses the process of this court. In disputes
relating to children where the parties are acting in the interests
of
the children there is no winner or loser and accordingly in the
normal course each party should pay its own costs (Mcall v Mcafl
1994
(3) SA 201
(C) at 209B-C; KG V CB
2012 (4) SA 136
(SCA) 160H-I).
[14]
In the present case, I am satisfied that the applicant’s
conduct is far remotely connected to the interests of the minor
children. She seeks an order uprooting the elder children from their
familiar environment, on the flimsiest of excuses. She caused
the
elder boy to miss about two weeks of school. I cannot see how that
can be in the interests of the child. She must be ordered
to pay the
costs.
[15]
In the result the application is struck off the roll with costs.
TM
MAKGOKA
JUDGE
OF THE HIGH COURT
DATE
OF HEARING : 14 MAY 2013
JUDGMENT
DELIVERED : 15 MAY 2013
FOR
THE APPLICANT : ADV P W MAKHAMBENI
INSTRUCTED
BY : SANDILE MAJAVU INC, PRETORIA
FOR
THE RESPONDENT : ADV ENSLIN
INSTRUCTED
BY : NGENO & MTETO ATTORNEYS, PRETORIA