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[2011] ZAKZPHC 31
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Jones v De Lange [2011] ZAKZPHC 31; AR458/2010 (19 May 2011)
1
REPORTABLE
IN THE KWAZULU-NATAL HIGH COURT, PIETERMARITZBURG
REPUBLIC OF SOUTH AFRICA
Case No.: AR458/2010
In the
matter between:
THOMAS
DAVID JONES
..............................................................................
APPELLANT
and
AMANDA DE LANGE
….............................................................................
RESPONDENT
JUDGMENT
SISHI J
Introduction
[1] This is an appeal against a judgment of Gorven J, who found in
favour of the respondent in a matter involving the enforcement
of a
court order.
[2] The respondent brought an urgent application in the court
a
quo
wherein she sought an order in the following terms:
That the respondent return the minor child Christopher Reece Jones,
to the applicant within three days of the granting of this
order.
That failing his return, the sheriff is authorised and instructed to
immediately remove the minor child Christopher Reece Jones
from the
respondent or any person in whose custody he may be and hand him
over to the applicant.
That the respondent bears the costs of the application.
That service by the sheriff Kempton Park of the scanned commissioned
application papers be deemed to be proper service”.
[3] After considering the papers and the argument, the court
a quo
ordered the appellant to return the minor child Christopher Reece
Jones to the respondent by 5pm on Saturday, 17 October 2009 and
ordered the appellant to pay the costs of the application.
[4] The appellant was granted leave by the court
a quo
to
appeal to this court. The respondent who appeared in person opposed
the appeal.
Background
[5] The parties were married to each other and two children, namely,
Christopher Reece and Tegan were born out of this marriage.
The
parties got divorced on 7 November 2003 in what was known then as the
Witwatersrand Local Division. Custody of the two minor
children,
Christopher and Tegan was awarded to the respondent. The appellant
was afforded reasonable access to the minor children.
The appellant
after the divorce, remained in Johannesburg and the respondent
returned to live in Durban with the two children.
This situation
pertained at the time the respondent brought an urgent application
against the appellant. Appellant re-married his
present wife,
Samantha Higgs, in July 2006 and remained living in Johannesburg. The
respondent also remarried, namely to one Peter
De Lange on 31 March
2007 and resided together with him in Pinetown, although at the time
of the application, they were no longer
living together.
[6] The appellant and his wife relocated to Switzerland on contract
in March 2008. In October 2008, the appellant returned to South
Africa for a visit. During his return, he had access to the children
and took them to Cape Town for holiday. On holiday he spoke
to them
about his enjoyable life in Switzerland.
[7] He then thought that it might be a good opportunity for
Christopher to spend some time with the appellant in Zurich
Switzerland,
especially as he had experienced so little quality time
with his father since the age of four (4).
[8] The respondent approached the appellant and the parties discussed
the possibility of Christopher spending some time with the
appellant
in Switzerland. The respondent considered this to be in the best
interest of Christopher in that it would afford Christopher
the
opportunity of bonding more deeply with the appellant. She further
thought that it would a wonderful opportunity for Christopher
to
experience Europe.
[9] After the parties had agreed on this temporary arrangement,
Christopher went to Switzerland with the appellant and his family
and
they returned from Switzerland on 29 August 2009. The parties had
agreed that the arrangement whereby Christopher would stay
with the
appellant in Switzerland would be reviewed after a period of one
year.
[10] When she spoke to him after his return from Switzerland, it
became apparent to her that although Christopher enjoyed Switzerland,
he had not developed the bond with the appellant that he had hoped he
would. Christopher expressed a desire to come back home and
live with
her and his younger sister.
[11] She discussed the matter with the respondent, the parties did
not reach agreement in this regard. The appellant suggested
that
Christopher stays with him until the end of the year. She insisted
that Christopher should be returned to her at the end of
the
September Holiday. The appellant had placed Christopher in an English
medium school in Gauteng for that year. The respondent
preferred that
Christopher should come home and complete his last term of grade 6
with his former peers at his previous school
which was an Afrikaans
medium school.
[12] The appellant took Christopher for the holidays from 23
September to 2 October 2009. According to the respondent, the
agreement
was that after the holidays, Christopher would be returned
to him and would spend the rest of the year at his old school with
her
at home. When the appellant returned the children on 2 October
2009 from the holidays, the appellant refused to return Christopher
to the respondent. The respondent took Christopher as he had been
placed in a school in Gauteng. The appellant therefore took
Christopher away with him against the Respondent’s wish.
[13] The respondent thereafter brought an urgent application before
the Court
a quo
for the return of Christopher and other
ancillary relief.
Issues on Appeal
[14] The full grounds of appeal are broadly stated as follows in the
Appellant’s Heads of Argument which were amplified during
argument:
The appellant was concerned that the matter proceeded to final
judgment without him being given the opportunity to put his
version
before Court, by way of a considered affidavit responding, where
appropriate, to the allegations made by the applicant
in her
founding affidavit.
On the facts as they stood, the Court
a quo
erred in dealing
with the matter as one of immediate urgency and in finding that it
would be in the best interest of the minor
child Christopher that
he immediately be returned to his mother.
Undue weight was attached to the anachronistic “rights of the
custodian parent”, and the modern concept of “
care”
now expressed in the Children’s Act 38 of 2000, was not taken
cognisance of.
The Court
a quo
erred in finding that it had jurisdiction to
hear the matter.
[15] Before dealing with the grounds of appeal, the Court was
informed that Christopher went for a holiday, and did not go back
to
his father. He is presently residing with his mother, the respondent.
The factual position is that Christopher is presently
with his
mother. This appeal has now become academic. Counsel for the
appellant conceded this appeal is about the issue of costs.
It would be appropriate in this appeal to first deal with the two
grounds of appeal, namely urgency and jurisdiction as they should
have been raised first in the Court a quo.
Urgency of the application
[16] Mr Rowan argued that the matter was not one of extreme urgency
or of such compelling urgency that it had to be disposed of
there and
then. The question of whether the application was urgent or not is a
matter which should have been raised on behalf of
the appellant in
the Court
a quo
as a point
in limine
. This issue could
have been argued in the Court
a quo
without filing any
answering affidavit.
[17] When a matter is found not to be urgent, the Court is entitled
to refuse to enrol it and to strike it from the Roll.
“
See:
Commissioner
, SARS v Hawker Air Services (Pty) Ltd
[2006] ZASCA 51
;
2006 (4) SA 292
SCA at 299 G
and 300 E/F”
[18] There is no indication from the record that Mr Murray who
appeared for the appellant in the Court a quo ever raised the issue
of lack of urgency in this application. This issue is therefore being
raised for the first time in this appeal.
[19] In paragraph 7.7 of the appellant’s Heads of Argument, it
submitted that the Rule 49.11 papers reveal that the appellant
was
advised that at that hearing issues relating to jurisdiction and
urgency would be raised, and that if these were not successful,
he
would then be given an opportunity to file an answering affidavit.
[20] I have already indicated in this judgment that no application to
have this matter adjourned was made in the Court
a quo
and
that the issue of urgency was never raised in the Court
a quo
as a point
in limine
or in any other manner.
[21] In making this submission, Mr Rowan lost sight of the fact that
the Rule 49.11 Application papers were not before the Court
a quo
when the application was made, and therefore are not relevant for
the purposes of determining this appeal.
[22] In any event, matters involving custody, care or primary
residence of minor children are treated on an urgent basis. The Court
a quo
considered that the respondent was a custodian parent in
the matter. It also considered the temporary arrangement between the
parties
that the child stay with the appellant for a period of 12
months, that the circumstances had changed, and that Christopher the
minor child wanted to return to his mother.
[23] In my view, the submission that the Court
a quo
erred in
dealing with the matter as one of immediate urgency and in finding
that it would be in the best interest of the minor
child, Christopher
that he immediately be returned to his mother, has no substance. The
Court
a quo
did not err in this regard.
Jurisdiction
[24] An objection to the jurisdiction of the Court should be taken
in
limine
and if this is not done before
litis contestatio
has been reached, that party will be assumed to have submitted to the
court’s jurisdiction “
See: Commercial Union
Assurance Co. Ltd v Waymark N.O.
1995 (2) SA 73
(TKGD) at 80 D-E”
The Court either has jurisdiction or it does not have jurisdiction to
deal with the matter.
[25] If the Court finds that it has no jurisdiction to deal with the
matter, that is the end of the matter. If the Court finds
otherwise,
it proceeds with the matter. That is an important reason why this
issue of jurisdiction should be raised at the beginning
of the
proceedings.
[26] It was contended in the appellant’s heads of argument
before us that the Court
a quo
did not have jurisdiction to
hear the matter. In the course of argument counsel for the appellant
indicated that he was not able
to pursue this point with any degree
of vigour, but he did not abandon it.
[27] The case made by the respondent in the Court
a quo
was
that she and Christopher were ordinarily resident within the area of
jurisdiction of this Court, and that his custody was awarded
to her
by the Witwatersrand Local Division when she and the appellant were
divorced. Counsel for the appellant submitted that the
concept of
“custody” of a child has been overtaken by the provisions
of the Children’s Act, No. 38 of 2005. It
is not entirely clear
what this submission means. The
Divorce Act No. 70 of 1979
still
refers to the custody of children.
Section 1(2)
of the Children’s
Act provides that in addition to the meaning assigned to the terms
“custody” and “access”
in any law, and the
common law, those terms must be construed to also mean “care
and “contact” as defined in
the Children’s Act.
[28] Section 19(1) (a) of the Supreme Court Act 59 of 1959 provides
that a Provincial or Local Division shall have jurisdiction
over all
persons residing or being in and in relation to al causes arising and
all offences triable within its area of jurisdiction
and all other
matters of which it may according to law take cognisance.
[29]
Van Tonder v Van Tonder
2000 (1) SA 529
OPD
was a
case in which a child had been unilaterally removed by the
non-custodian parent from the custody of the custodian parent.
In
dealing with the question of jurisdiction the Court said at 533 J and
further that the applicant’s complaint concerned
the breach of
her prima facie right to have the child in her custody. At 534 I and
further the Court pointed out that an order
for the return of the
child could be enforced even though the child was then in the
territorial jurisdiction of another division
of the High Court.
Effectively the child was removed from the custody of the mother
within the area of the Court’s jurisdiction
and the Court held
that it was not necessary for her to go to the Court to whose
jurisdiction the child had been taken.
[30] In the circumstances, I am satisfied that the Court
a quo
had jurisdiction to entertain the application.
Whether appellant was denied the opportunity to place his case
before Court.
[31] Mr Rowan argued that the Court
a quo
acted with undue
haste and consequently erred in making the order it did. The
appellant should have been given an opportunity to
put his case
before Court. The Court asked Mr Rowan more than once if Mr Murray
who represented the appellant in the Court
a quo
had asked for
an adjournment in order to file answering affidavits to respond to
the respondent’s allegation as set out in
her founding
affidavit. The Court even referred Mr Rowan to page 1 of the
transcript where at the commencement of the proceedings
in the Court
a quo
, the Judge asked the following question:
“
Are you here to resist the order, or are
you here to ask for an adjournment or what is the position?”
[32] This question was directed to Mr Murray who represented
appellant in the Court
a quo.
Mr Rowan submitted that Mr
Murray in the Court
a quo
did not say he wanted an adjournment
in so many words, he submitted that Mr Murray got drawn at the outset
into an argument which
was a full argument but he kept on saying that
the problem was that the appellant’s version was not before
Court.
[33] What is clear from the reading of the record is that at no stage
did Mr Murray who appeared on behalf of appellant in the
Court
a
quo
applied for an adjournment so that he could file an affidavit
in response to the allegations made by respondent in the founding
affidavit. He actually chose to argue the matter as it stood.
[34] Mr Rowan argued that the Court should have, of its own accord
granted an adjournment of this matter as the Court is the upper
guardian of all minor children. It was therefore improper for the
Court
a quo
to make a snap decision.
[35] Mr Murray in the Court
a quo
cannot now complain that he
was not given an opportunity to file an affidavit when it is clear
from the record that he was obviously
content to argue the matter on
what was before Court then. He never asked for an adjournment to be
given an opportunity to file
affidavits. He can therefore not
complain that he was denied an opportunity to file answering
affidavits especially when the Court
specifically asked him, more
than once if he wanted an adjournment or not.
In the circumstances, I am satisfied that this ground of appeal has
no substance and falls to be rejected.
Whether the Court a quo attached undue weight to the rights of
the Custodian Parent
[36] In the Court
a quo
the matter was treated on the basis
that both parents are good parents. The boy was not in danger either
emotionally or physically.
The respondent, who had a valid custody
order approached appellant to have the boy returned to her, appellant
refused. She then
approached the Court to have the Court order
enforced.
[37] Counsel for the appellant submitted that the modern concept of
“
care”
now expressed in the children’s Act
38 of 2005 was not taken cognisance of.
[38] Counsel for the appellant submitted that there should have been
an allowance for the provisions of the new Children’s
Act to be
applied namely, the child to be a participant in the proceedings to
let his feelings be known, and professional intervention
sought so
that one could get an independent evaluation rather than the
subjective views of the mother.
[39] Counsel for the appellant has referred to a number of the
provisions of the Children’s Act in the Heads of Argument
which
includes Section 12(2), Section 20(b), Section 18(2), Section 18(4),
Section 31 and Section 9. In my view, in presenting
the argument,
Counsel for the appellant lost sight of the fact that the Court
a
quo
was not dealing with a custody enquiry. There was already a
custody order in existence made in 2003 giving the custody of the
minor
child to the respondent. That order had not been altered or
varied by any competent Court. The provisions of the Children’s
Act of 2005 do not affect the custody arrangements made in that court
order.
[40] Section 314 of the Transitional Provisions of the 2005
Children’s Act provides as follows:
“
Anything done in terms of a law
repealed, “in terms of Section 313 which can be done in terms
of a provision of this Act,
must be regarded as having been done in
terms of that provision of this Act”
[41] In any event this whole argument relating to the Children’s
Act of 2005, was not placed before the Court
a quo
, it is
brought in for the first time during this appeal.
[42] In the circumstances, I am satisfied that the argument that the
Court
a quo
attached undue weight to the rights of a custodian
parent has no merit and falls to be rejected.
Costs
[43] On the issue of costs, Counsel for the appellant submitted that
the proper way to approach these cases, and that that has
been the
case over years where parents are acting bona fide in the best
interest of their children, parties are normally ordered
to pay their
own costs. The Court a quo should never have granted costs against
the appellant.
[44] In the light of the findings already made earlier on in this
judgment, namely that all the grounds of appeal referred to above
have no substance, there is, in my view, no reason why this Court
should interfere with the costs order made by the Court
a quo
.
I am satisfied that the Court a quo did not commit any misdirection
which entitles this Court to interfere with its judgment including
the costs order made. There is no reason why the costs of this appeal
should not follow the result.
[45] In the result, the appeal should fail.
[46] I make the following order:
The appeal is dismissed with costs.
_________________
SISHI J
_________________
D
PILLAY J I agree
_______________________
PLOOS
VAN AMSTEL J I agree
Representatives
Date of Hearing : 23 February 2011
Date of judgment : 19 May 2011
Appellant’s Counsel : Advocate P.A.C. Rowan SC
Appellant’s
Attorneys : Kohler Inc.
11
th
Floor Metlife Building
391 Smith
Street
DURBAN
Ref:
Martin Kohler/01/L2064
Tel: 031
306 4616
Respondent’s Counsel : In person
Respondents
Attorneys : BERGMANS ATTORNEYS
Attorneys
for the Respondent
Mooney
Ford Attorneys
C/O Venn
Nemeth & Hart Inc.
281
Pietermaritzburg Street
PIETERMARITZBURG
Telephone
: 033 355 3106
Ref: PRJ
Dewes/Brenda/32m170510