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[2009] ZAGPPHC 52
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V Z v V Z (46716/08) [2009] ZAGPPHC 52 (14 May 2009)
SAFLII Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT OF SOUTH AFRICA
(NORTH GAUTENG HIGH COURT,
PRETORIA)
CASE NO: 46716/08
14/05/2009
UNREPORTABLE
In the matter between:
L G V Z
Applicant
and
V V V Z
Respondent
________________________________________________________________
JUDGMENT
________________________________________________________________
MURPHY J
1. The applicant and the respondent
are married and have been since 1998. The applicant is the mother
and primary care-giver of
the children who form the subject of the
application.
2. The substantive dispute between the
parties related to the custody of the children. The purpose of the
application was to restore
the status quo ante urgently in respect of
the children. The matter was eventually settled by means of an order
by consent in
which the applicant’s position as the primary
custodian was recognised and restored subject to reasonable contact
and access
rights being granted to the respondent pending a final
report of the Family Advocate dealing with the issues in dispute.
Ancillary
orders were made regarding the parties and the children
submitting themselves to therapy and evaluation.
3. The only remaining issue between
the parties was the question of costs in respect of which I reserved
judgment.
4. I do not propose to canvass the
evidence in any detail because I see no need to do so. The immediate
circumstances giving rise
to the application were that the
respondent, the father of the children, removed the children from the
care of the applicant because,
so he alleged, the applicant’s
psychological condition made it in the best interests of the children
that they be removed.
5. From the papers it appears that
both parties are experiencing psychological stress that has
contributed to and is evidently exacerbated
by the breakdown of their
marriage. Their behaviour, understandably, has been less than
exemplary. The applicant has used medication
to curb her anxiety and
by his own admission the respondent has abused alcohol and is
receiving counselling in that regard. One
particular piece of
evidence, Annexure J to the replying affidavit, (an email from the
applicant to the respondent’s sister)
is damning of the
applicant in that it reveals that on one occasion after taking
medication the applicant had a total lapse of
memory about whether
she had taken her children out of the bath after bathing them. In
the email the applicant expresses concern
about her own mental state
and its effect on the children.
6. Counsel for the applicant has
submitted that the respondent should pay the costs of the application
because he allegedly manipulated
the situation and was using the
children to assert control over the applicant in an unacceptable
fashion. There is probably an
element of such behaviour present.
However, having regard to the common cause facts and the disputed
allegations making up the
respondent’s version, despite the
order restoring custody to the applicant, I am unable to conclude, in
the light of Annexure
J, that the respondent acted entirely out of
malice, or manipulatively, when he refused to return the children
after they spent
a weekend with him. At best he was genuinely
concerned about the welfare of the children alternatively he may have
been motivated
by the lesser consideration of bringing home a message
to the applicant that she ought to be more mindful of her mental
state while
the children were in her care. At worst he was being
manipulative in what was manifestly a deeply fraught and traumatic
situation
for all concerned.
7. In matrimonial and custodial
disputes of this order, where there is an element of fault and
unreasonable conduct on both sides,
and where the settlement
ultimately produces a result which regulates the further conduct of
relationships in a desirable fashion,
as is this case, there will be
justification in making no order as to costs with the result that
each party will pay his or her
own costs. Such an order is
appropriate in this case. Both parties are also employed.
8. In the result, there is no order as
to costs.
JR MURPHY
JUDGE OF THE HIGH COURT
Date Heard: 4 December 2008
For the Applicant: Adv L Haupt,
Pretoria
Instructed By: Griesel &
Breytenbach, Pretoria
For the Respondent: Adv C
Bezuidenhout, Pretoria
Instructed By:Chris Fourie, Alberton