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[2013] ZAKZDHC 51
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M K v R K (168413/2013) [2013] ZAKZDHC 51 (27 September 2013)
IN THE KWAZULU-NATAL HIGH COURT, DURBAN
REPUBLIC OF SOUTH AFRICA
CASE NO: 1684/2013
In the matter between:
M K
Applicant
and
R K
Respondent
J U D G M E N T
Date delivered: 27 September 2013
THATCHER AJ
The applicant, who is 39 years old, and the respondent who is 32,
were married on the 25
th
January 2003. Within weeks of
their marriage, they moved to the United Kingdom where the applicant
took up employment. On the
27
th
April 2005, while they
were living in England, the respondent gave birth to A, a girl, who
is now 8 years old. The parties separated
on the 2
nd
March 2009, over five years ago, when the child was nearly 4 years
old. The respondent returned to South Africa with her.
It is unclear from the papers when the applicant returned to South
Africa, but in 2009 he brought an action for divorce in this
court.
That action is pending. Since May 2012 he has been employed as a
petroleum engineer in the Sultanate of Oman where he
will in all
likelihood be for the foreseeable future.
It would appear that from 2009, the parties have been unable to
agree on appropriate access to A for the applicant. This resulted
in
an application by him for defined access and this court making an
order on the 29
th
December 2010 that the applicant
receive unsupervised access during the second half of all school
holidays, and, importantly
for this case, telephonic contact at all
reasonable times. Given that the applicant now only returns to South
Africa about four
times a year, for most of the time he is limited
to telephonic contact with A which is obviously of great importance
not only
for him but to enable A to maintain a relationship with
him.
The applicant apparently returned to Oman on the 15
th
January 2013, after having spent the December 2012 / January 2013
school holidays in South Africa during which time A spent three
weeks with him, part of which they spent in Cape Town. According to
the applicant, he has not been able to speak to the child
on the
telephone since the 24
th
January 2013. This is
questionable. I say so because in his founding affidavit, deposed to
by him on the 16
th
February 2013, he states, importantly
in the present tense, as follows:-
"Although I telephone either the respondent's cellular phone
or her landline daily, I have been lucky to speak to A twice a
week
at best. When I do manage to get hold of the respondent, and A and I
are left to talk, our conversations generally last between
20 and 40
minutes."
The events leading to the applicant bringing this application are
the following. On the 25
th
January 2013, the applicant's
attorney addressed a letter to the respondent in which it was
alleged that the applicant had been
unable to maintain regular
telephonic contract with A because the respondent had failed or
refused or neglected to allow such
contact, he alleged, by not
answering her home telephone or cell phone. The respondent was told
that she was to facilitate telephonic
contract by making A available
to speak to the applicant and by answering her (the respondent's)
cellular telephone. An offer
was made to provide a cell phone solely
for the purpose of the applicant contacting A. The letter further
went on to state as
follows:-
"This [telephonic] contact must begin this evening failing
which our instructions are to approach court immediately for an
interdict forcing you to comply with this request or alternatively
charges will be opened against you at the police."
The letter addressed two further issues, namely A's school expenses
and the quality of the school she was attending. The letter
ended
with the following:-
"Kindly provide us with your responses to the above request
by close of business on 1 February 2013."
On the 28
th
January 2013, the respondent replied in a
lengthy email. She advised that the applicant is free to contact A
"at the reasonable time of 5 pm"
and she accepted
the applicant's offer to provide her with a cell phone. The
respondent then went on to deal at length with the
other issues
raised in the applicant's attorneys' letter concerning A.
On the 31
st
January 2013, the applicant's attorney sent a
further letter advising that a cellular telephone had been delivered
to the respondent's
mother on the 29
th
January 2013, but
that it had been returned because A was allegedly
"too small
for a cellular telephone"
. It was further alleged that the
applicant had tried calling at 5pm the previous day and there was no
answer from either the
home telephone or the respondent's cellular
telephone. The letter further stated as follows:-
"Our client is still being prevented from having telephonic
contact with A and in the circumstances if you do not grant our
client telephonic contract this evening between the hours of 17h00
and 18h00 or allow our client to provide the minor child with
a
cellular telephone and continue to allow this permanently, an
application to court will be brought against you without further
notice to you on an urgent basis and a punitive costs order will be
sought against you."
It is not known whether there was telephonic contact that evening.
There was, however, no written response to this letter, and,
it
would seem, no oral response.
On the 18
th
February 2013, this application was launched
as a matter of urgency and was set down for hearing on the 21
st
February 2013.
On that date the respondent was present in person and a
rule nisi
was issued with interim relief. That interim relief was as follows:-
"1(a) The respondent ... is ... directed to ensure that the
applicant shall have telephonic contact to (sic) the minor child
A
... daily between 17h00 and 19h00 for a duration of not less than 10
minutes per telephone call;
(b) The respondent is interdicted and restrained from interfering
with, or seeking to limit, the telephonic contract referred to
in
paragraph 1(a) above."
That relief was apparently granted by consent. I was advised by
Ms Konigkramer, who appeared for the applicant, that on that
day
it had been hoped to resolve the entire application, but it had not
been possible to do so because the respondent had declined
to consent
to an order for costs being made against her on the scale as between
attorney and client. The applicant apparently insisted
on a costs
order on that scale being made.
On the 10
th
March 2013, the respondent delivered a brief
answering affidavit, apparently drafted without legal assistance. In
that affidavit
she opposed only the grant of an order for costs
against her. She further stated as follows:-
"(a) The urgent application brought against me was
unnecessary and the grounds for this application are unfounded. I
strongly
deny the applicant's allegations, in particular that I have
deliberately restricted telephonic access to the minor child. This is
completely untrue. ...
(g) The applicant has not fulfilled his maintenance obligations
which has contributed detrimentally to my current parlous financial
situation. If I have to pay costs to the applicant such payment will
make matters worse not only for me but for our child."
She also alleged that she had been unable to gather information which
would demonstrate that she had not restricted the applicant's
telephonic access. In support of this she attached an affidavit
deposed to by her recording that she had requested a list of incoming
calls from Telkom.
On or about the 12
th
June 2013, the applicant delivered a
replying affidavit in which he stated that the limited content of
the answering affidavit
demonstrated that the respondent was acting
"in bad faith and unreasonably in denying and restricting
and/or restricting"
his contact with A. He pointed out that
it is not surprising that the respondent had been unable to put up
proof of
"incoming calls"
as, he understood, only
those calls which are answered are reflected on a telephone account.
(Thus the applicant was aware that
the respondent disputed that he
had attempted to telephone A on a daily basis but had been unable to
speak to her because of
the respondent's conduct. He persisted in
his contention that the respondent's conduct was unreasonable and
malicious and that
the respondent ought to pay the costs of the
application on the attorney and client scale. I will revert to the
significance
of the applicant's comment that it is not surprising
that the respondent had been unable to put up proof of
"incoming
calls"
later in this judgment.) The applicant in his
replying affidavit also stated as follows:-
"Further, the respondent refused to consent to a final order
being granted at the hearing of the application on 21 February
2013,
as she wished to "place her version" before this court."
On the 8
th
July 2013, the application was set down for
hearing on the opposed application roll on the 17
th
September 2013, it being clear that the only issue was the costs of
the application. On the 6
th
September 2013, the
applicant's heads of argument were delivered to the Durban Justice
Centre, who was now representing the respondent.
When I received the court file before the hearing, it contained both
the application papers and a separate bundle comprising
a notice of
motion dated the 9
th
September 2013 for an order that the
respondent be given leave to deliver a supplementary answering
affidavit, and to which was
attached a single affidavit deposed to
by the respondent. That affidavit dealt firstly with the grounds
upon which the further
affidavit ought to be admitted, and secondly,
her response to the applicant's replying affidavit. I read these
documents together
with the parties' heads of argument before the
hearing commenced.
At the hearing, Ms Konigkramer, for the applicant, sought the
adjournment of the matter in order to afford the applicant
the
opportunity of delivering yet another affidavit. As the respondent's
further affidavit had not yet been admitted into evidence,
I
requested Ms Gopal, who appeared for the respondent, to move her
application for the admission of the further affidavit and
to
address me on the merits of that application and she did so.
Thereafter Ms Konigkramer made submissions on why the application
to
admit the further affidavit ought to be refused.
After hearing argument, I ruled that the further affidavit should
not be admitted into evidence. My reasons are the following.
A court has a discretion whether to allow further affidavits and it
will only exercise its discretion to do so where there is
good
reason for doing so.
Hano Trading CC v JR 209 Investments (Pty) Ltd
2013 (1) SA 161
(SCA) at 164 E
In the case of
Porterstraat 69 Eiendomme (Pty) Ltd v PA Venter
Worcester (Pty) Ltd
2000 (4) SA 598
(C) at 617B-F, Davis, J
summarised the relevant considerations in such an application, which
he stated are:-
(a) the reason why the evidence was not led timeously;
(b) the degree of materiality of the evidence;
(c) the possibility that it may have been shaped to
"relieve
the pinch of the shoe"
;
(d) the balance of prejudice, namely the prejudice to the respondent
if the application is refused and the prejudice to the applicant
if
it is granted;
(e) the stage which the particular litigation has reached;
(f) the
"healing balm"
of an appropriate order as to
costs;
(g) the general need for finality in judicial proceedings.
The proposed further affidavit did not place before the court any
material evidence and essentially took the matter no further.
There
is therefore no prejudice to either party if it is not admitted.
There is a further reason why the supplementary affidavit should not
be admitted. Since the 7
th
March 2013, the only issue in
the application had been the costs of the application. The further
answering affidavit invited
the applicant to put up his telephone
records evidencing that he had telephoned the respondent but that
his calls had gone unanswered.
Ms Konigkramer submitted that if
the further answering affidavit was admitted, the applicant wished
the matter to be adjourned
so that he could place this evidence
before the court. According to Ms Konigkramer, the applicant
telephoned on Skype and that
system records when a number is
dialled, even when the call is not answered. Thus the admission of
the further answering affidavit
would result in the matter being
adjourned with further costs being incurred to afford the applicant
the opportunity to produce
evidence which he knew he should have
produced in his replying affidavit, but did not. It seemed to me
that it was in the parties'
interests and in the interests of
justice that the matter be finalised and that no further costs
should be incurred solely in
order to determine who was to pay the
costs of the application.
It was for these reasons that I ruled that the further affidavit
should not be admitted into evidence.
This brings me to the issue of the costs of the application.
Counsel for the applicant contended that not only had the applicant
been successful and so ought to be awarded the costs of the
application, but that those costs ought to be on a punitive scale
because the respondent's conduct had been unreasonable and
in bad
faith and that she was not justified in interfering with the
applicant's telephonic conduct with A.
One can sympathise with the applicant. Living overseas, his only
contact with A is via telephone. The respondent in her email
of the
28
th
January 2013 gave him an undertaking that he was
free to contact A at 5pm, and accepted his offer of a cellular
telephone to
facilitate telephone contact with A. It must have been,
to say the least, frustrating for him not to have been able to
exercise
this telephonic contact daily.
In addition, a second undertaking had been sought on the 31
st
January 2013 because he had still not been able to contact A daily.
Furthermore, by that date the cellular telephone that the
respondent
had agreed to accept to facilitate the telephone contact, had been
returned.
The applicant was therefore justified in bringing the application,
and thus ought to be entitled to his costs of the application.
That is not, however, the end of the matter. The respondent was
summoned to appear at court on the 21
st
February 2013 on,
at the most, three days' notice to her. On that date she appeared in
person and consented to an order that
she ensure that the applicant
has telephonic access with A daily between 5pm and 7pm for a
duration of not less than 10 minutes
per telephone call and that she
be interdicted and restrained from interfering with or limiting that
telephonic contact.
Ms Konigkramer submitted that the respondent ought to pay all of the
costs of the application on the attorney and client scale.
She
submitted that had the respondent consented to such an order on the
21
st
February 2013, final relief could have been obtained
on that date and no further costs would have been incurred. The
respondent
opposed any order that she pay the applicant's costs and
sought an order that the applicant pay her costs on the attorney and
client scale.
The principles in regard to the award of costs, including attorney
and client costs, were summarised by Holmes, JA in the case
of
Ward
v Sulzer
1973 (3) SA 701
(AD) at 706 G to 707 A as follows:-
"1. In awarding costs the Court has a discretion, to be
exercised judicially upon a consideration of all the facts; and, as
between the parties, in essence it is a matter of fairness to both
sides .. Ethical considerations may also enter into the exercise
of
the discretion ...
2. The same basic principles apply to costs on the attorney and
client scale. For example, vexatious, unscrupulous, dilatory or
mendacious conduct (this list is not exhaustive) on the part of an
unsuccessful litigant may render it unfair for his harassed opponent
to be out of pocket in the matter of his own attorney and client
costs ... Moreover, in such cases the Court's hand is not shortened
in the visitation of its displeasure."
When the respondent appeared in court on the 21
st
February 2013, she consented to the relief sought by the applicant
and only opposed the application on the question of costs.
When she
delivered her answering affidavit on the 9
th
March 2013,
again it was clear that the only issue was the question of costs. It
was also clear from her answering affidavit
that the respondent
persisted in her denial that she had deliberately restricted
telephonic access to the child. This denial
gave rise to a dispute
of fact, the applicant having alleged in his founding affidavit that
the respondent was making it extremely
difficult for him to have
regular telephonic contact with A. The applicant had an opportunity
in reply to put up proof of his
failed attempts to speak to A over
the telephone. He however did not put up any such evidence. Thus
this dispute of fact remains.
However justice requires that this
application be brought to finality and that the dispute of fact
remains is because of the
applicant's failure to put up evidence in
reply which would have gone some way to resolving this dispute.
I do not believe that her conduct can be characterised as vexatious,
unscrupulous, dilatory, mendacious or in bad faith. She
consented to
the relief sought by the applicant at the first hearing of the
application. While there is no evidence that the
respondent would
have been prepared to pay the applicant's costs on a party and party
scale, what we do know is that the applicant
has sedulously, and in
my view, unjustifiably, after the 9
th
March 2013
persisted in his demand that the respondent pay all the costs of the
application on an attorney and client scale.
The applicant, not
having placed any evidence before the court to refute the
respondent's denial that she had deliberately prevented
his
telephonic access to A, ought not to have persisted in seeking costs
on a punitive scale. He ought to have sought costs on
the party and
party scale, but he did not do so.
The manner in which the applicant placed the application before the
court is also a factor I take into account. The applicant
launched
the application on the 18
th
February 2013, some 18 days
after he had sought an undertaking from the respondent, and set the
application down as an urgent
one for hearing 3 days later, on the
21
st
February 2013.
When I queried this with Ms Konigkramer, she advised me that
the delay in launching the application was occasioned by the
applicant being out of the country and the difficulties associated
with getting his founding affidavit authenticated. That may
be so,
but this does not explain why, after a delay of some 18 days, the
application was set down for hearing a mere 3 days after
it was
brought.
There is no valid reason why the respondent should not have been
given a longer period in which to consider her position and
possibly
obtain legal assistance. The application was, by the time it was
launched, not so urgent that the respondent should
only have been
given 3 days to decide whether to oppose the application or to
obtain legal advice. Had the respondent been given
a reasonable time
to seek legal advice, wiser counsel may have prevailed and the
matter resolved at the first hearing.
The respondent sought an order that the applicant pay her costs on
the attorney and client scale. In the light of the facts I
have
described above, there is no basis for any order that the applicant
pay her costs.
Having regard to the facts of the matter, and seeking to be fair to
both parties, I make the following order in this application:-
The
rule nisi
granted on the 21
st
February 2013 is
confirmed in the following terms:-
The respondent is directed to ensure that the applicant shall have
telephonic contact with the minor child, A, a girl, born on
the 27
th
April 2005, daily between 17h00 and 19h00, for a duration of not
less than 10 minutes per telephone call.
The respondent is interdicted and restrained from interfering with,
or seeking to limit, the telephonic contact referred to in
paragraph
1.
The respondent is ordered to pay the costs of the application
incurred by the applicant up to and including the 10
th
March 2013.
Each party will bear his and her own costs incurred after the 10
th
March 2013.
_____________________________
THATCHER AJ
Application heard on:
17
th
September 2013
Counsel for the applicant:
Adv M Konigkramer
Instructed by:
Shepstone & Wylie
Counsel for the first respondent:
Adv T Gopal
Instructed by:
Durban Justice Centre
Judgment handed down on:
27
th
September 2013