About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2009
>>
[2009] ZAGPPHC 292
|
|
J.D v E.D (52308/2009) [2009] ZAGPPHC 292 (18 September 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: 52308/2009
In
the matter between:
J.D. Applicant
And
E.D. Respondent
JUDGMENT
LEDWABA,
J
[1]
This is an opposed urgent application filed by the applicant wherein
he seeks full rights of contact and care to his minor child,
a [……],
born [……..] and that the relief be postponed pending
the finalisation of the family advocate
report. Furthermore, that,
pendent life, he be granted rights of contact specified in clause 4
of the notice of motion to operate
with immediate effect.
[2]
The respondent’s counsel raised two points in limine viz, that
the applicant did not advance sufficient grounds for the
matter to be
heard on an urgent basis in terms of Rule 6(12) of the Uniform Rules
and that this court does not have jurisdiction
to hear this
application.
[3]
For convenience sake, I directed the parties to argue the points in
limine and the merits together.
[4]
I will start with summarising the facts that are common cause between
the parties for a proper appreciation of the issues when
I deal with
the points in limine and the merits.
4.1.
Both parties are resident in Tzaneen at the district of Limpopo.
4.2.
They were […….] to each other in [……….]
on [……..] and their [……….]
still
subsists.
4.3.
The respondent issued divorce summons against the applicant in the
North-Eastern Divorce Court (NED court) to be held in Polokwane
in
July 2009, under case number P161/2009, wherein divorce, parental
responsibilities and rights and other ancillary relief are
sought.
4.4.
The parties were staying together and the respondent left the
applicant on or about 4
th
July 2009 to stay with her
parents. She took the minor child with her when she left the common
home.
4.5.
After the respondent and the child left, the applicant has been
visiting the child at the respondent’s parental home.
The
respondent allowed him to visit the child for some hours and did not
allow him to remove the child. According to the applicant,
the
respondent is alienating him from the child.
[5]
Respondent’s counsel, Mr. Botha submitted that at the beginning
of August 2009 applicant’s attorney informed the
respondent’s
attorney’s that if applicant is not allowed to remove the child
by 5
th
August 2009, when he exercises his visitation
rights, an urgent application will be launched in the High Court; see
annexure JD5
on page 44 thereof.
[6]
The respondent’s attorneys in their letter dated 4 August 2009
(annexure JD6) in response to the applicant’s attorney’s
letter, annexure JD5, inter alia, said the following:
“…
.naar
ten aansien van u dreigement om die Hoogeregshof op n dringende basis
te nader, wys ons u daarop dat daar geen redes vir dringendheid
in
hierdie aangeleentheid bestaan nie en dat daar geen basis vir so ’n
dringende aansoek bestaan nie en dat die aansoek geopponeer
sal word.
Ons
is deur die balju in kennis gestel dat die dagvaarding vandag op u
klient beteken sal word. ”
[7]
This urgent application was served on the respondent after summons
was served on the respondent.
[8]
The respondent in paragraph 3.14.3 of the opposing affidavit stated
the following:
“
3.14.3
I instructed my attorney to proceed to issue summons in the North
Eastern Divorce Court, as I do not possess the funds to
proceed with
defended litigation in the High Court of South Africa. It is
significant to note that, although the applicant states
that he is
not capable of contributing more towards the maintenance of Jessica,
he apparently is able to afford legal representation
in the High
Court of South Africa in respect of this application
[9]
The applicant’s response to the above paragraph is the
following:
“
I
take note of the allegations contained in this paragraph and would
like to place on record that I have borrowed the funds to bring
this
application from my parents as it is important for me to maintain a
proper relationship with Jessica. It is also very important
that my
parents have no contact with Jessica and it is impossible in the
circumstances, in the way that access is unilaterally
granted by the
Respondent and her parents, for my parents to have any contact with
her. They love her dearly and would like to
have a relationship with
their granddaughter. The only way for my parents to have contact with
Jessica is through Skype as they
live in the United States of America
and in the circumstances this is not possible.” (own
underlining).
[10]
Applicant’s counsel submitted that when the NED court and the
High court have concurrent jurisdiction on the pendent
lite
application brought by the applicant the proper forum to hear the
application is the court wherein the main action was instituted
unless if the matter is so urgent that it warrants the court in which
the main action is pending could not deal with the relief
sought
pendent lite.
[11]
In Venter v Venter
1970 (1) SA 11
the editors summary reads as
follows:
‘‘
Where
there is an action pending in either the Witwatersrand Local Division
or the Transvaal Provincial Division, even if there
is concurrent
jurisdiction, matters which are ancillary to the main action ought to
be decided in the same division.
A
divorce action was pending between the parties in the Witwatersrand
Local Division and was already on the roll of opposed cases.
Applicant applied for the temporary custody of the minor child of the
marriage pending the divorce action.
Held,
that the Court had no jurisdiction
[12]
The NED court have the same jurisdiction as any High Court in
relation to the divorce matters, see section 10(1 )(a) of the
Administration Amendment Act 9 of 1929. The applicant s counsel after
he was given an opportunity to file further heads of argument
on the
issue of jurisdiction. He submitted that if proceedings are pending
in the NED court same cannot oust the jurisdiction of
the High Court
which is the upper guardian of the minor children.
[13]
Significantly, in matters involving what is in the best interest of a
child, I am in agreement with what was said in Shawzin
v Laufer
1968
(4) SA 657
(A) at 662H-663A:
“
In
view of the circumstances of this case I think it necessary to make a
few comments on the duty of a Court, sitting as upper guardian
of
minor children, when it has to resolve a dispute concerning custody.
To the court, as upper-guardian, the problem of custody
is a somewhat
singular subject, in which there is substantially one norm to be
applied, namely the predominant interests of the
child. The
singularity of the subject is evidenced by a number of features. An
order of the court as to custody and access may
at any time be varied
by the Court for good cause. An agreement relating to custody may be
made an order of Court if the Court
is satisfied that what has been
agreed upon is in the best interests of the children, but such order
also can be varied by the
Court for good cause. Also, from the
procedural point of view, an application to vary an agreement is
different from the ordinary
application, in that the court need not
consider itself bound by the contentions of the parties and may, in
suitable cases, notwithstanding
the fact that the onus is on the
applicant to show good cause, depart from the usual procedure and act
mero motu in calling evidence,
irrespective of the wishes of the
parties. In the result, it could be said that, while in the form
there is an application for
variation of the order of Court, in
substance there is an investigation by the Court, acting as
upper-guardian...”
[14]
In this application before me, the main relief sought by the
applicant is that he be granted full rights of contact and care,
pendente lite, pending the finalisation of the family advocate’s
report. The respondent also prays for the parental rights
of care in
the divorce summons.
[15]
The principle in Venter’s case is, in my view, to avoid any
matter ancillary to the main issue to be dealt with in a
different
forum unless there are urgent and compelling reasons.
[16]
In terms of section 28(2) of the Constitution Act 108 of 1996, “A
child’s best interests are of paramount importance
in every
matter concerning the child. ”
[17]
My approach to the matter is that as much as the child’s
interest are of paramount importance there are no explicit urgent
grounds in this application persuading me to deviate from the
principle in Venter’s case.
[18]
The applicant could approach the NED court in terms of Rule 32 of the
NED court rules, for the relief sought in this application,
which is
similar to the Rule 43 proceedings of the Uniform Rules of this
court. The costs in the NED court would be lesser and
the court is
nearer to where the parties are resident.
[19]
The applicant in the application has not set out reasons why he is
approaching this court on a urgent basis for the relief
he could have
obtained in the NEDC on a ‘quicker’ procedure pending the
finalisation of the main action. Applicant
stated in his papers that
he has already instructed his attorney to request the office of the
family advocate to institute a enquiry
in terms of section 4
Mediation in Certain Divorce Matters Act 24 of 1987.
[20]
The respondent stated that she instituted the divorce proceedings in
NED court because she cannot afford the High Court costs.
[21]
Applicant failed to clearly furnish the court with reasons why he
could not bring this application in the NED court despite
being
informed that the issue of jurisdiction would be raised.
[22]
The applicant is not denied his right to visit the child, the issue
is that he wants to remove the child. I do not think that
there is an
urgent need in the interest of the child warranting that I should
entertain the application.
[23]
I therefore, make the following order:
The
matter is struck from the roll and the applicant is ordered to pay
the costs.
A
P LEDWABA
JUDGE
OF THE HIGH COURT