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[2009] ZAGPJHC 114
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V v V and Others (2003/20813, 2007/9126) [2009] ZAGPJHC 114 (29 April 2009)
SOUTH GAUTENG HIGH COURT, JOHANNESBURG
Case
No. 2003/20813
2007/9126
Date:29/04/2009
In
the matter between:
V
v. V & Ors
MEYER, J
[1] Mrs
V, who is the first respondent in these proceedings, is the wife of
Mr V. He is the applicant in this application. Mrs V was
formerly
married to Mr S. He is the second respondent in this application.
B, who is the third respondent, and M, who is the
fourth respondent,
were born from the former marriage relationship between Mrs V and Mr
S. When their marriage relationship was
dissolved by order of this
court, Mrs V was awarded the custody of the two minor children and Mr
S access to them.
[2
] Mr
and Mrs V have been desirous of emigrating to New Zealand with B and
M for the past few years. Mr S refused to consent to
the minor
children emigrating with their mother, and Mrs V accordingly launched
an application under case number 2003/20813 in
which she seeks leave
to remove B and M from the Republic of South Africa for the purpose
of emigrating to New Zealand (‘the
relocation application’).
This application is not finalised and is opposed by Mr S, who, in
turn, launched a conditional
counter application wherein he seeks the
interim custody of B and M while Mr and Mrs V ‘investigated the
environment in New
Zealand’.
[3
] Another
dispute that arose between Mr S and Mrs V is Mr S’s access to
or contact with the two minor children. This dispute
culminated in
Mr S launching an application under case number 2007/9126 wherein he
seeks the restoration of his access to B and
M (“the access
application”). This application is also not finalised and is
opposed by Mrs V.
[4
] On
19 June 2007, Victor AJ made an order referring the disputed issues
in the access application for the hearing of oral evidence
and
consolidating the relocation application with the oral evidence to be
given.
[5
] The
Centre for Child Law launched an application on behalf of B and M to
intervene in
inter
alia
the
relocation and access applications. On 11 June 2008, Victor J granted
such relief. The minor children are presently independently
represented by the Centre for Child Law and counsel has also been
briefed to represent them. They wish to emigrate to New Zealand
with
their mother and Mr V and they do not wish their father’s
contact to be restored.
[6
] Mr
V now applies for leave to intervene in the relocation and access
applications. The grounds upon which he relies in his founding
papers in support of such relief are essentially: that, although Mrs
V had been represented by Deneys Reitz Attorneys and by counsel
until
about the end of 2008, she is not presently legally represented and
Mr V wishes to render support and active assistance to
his wife in
her preparation for and conduct of the hearing; that Mr V wishes to
testify on a number of aspects relevant to the
issues that have been
referred for the hearing of oral evidence; and that Mr S has made an
attack on him in his affidavits and
Mr V wishes to set the record
straight or clear his name. Mr V’s application for the
granting of leave to intervene is opposed
by Mr S. The Centre for
Child Law has given notice that the minor children abide the decision
of this court.
[7] It is made
clear in his replying affidavit that Mr V is not seeking to legally
represent Mrs V in her conduct of the legal proceedings.
The support
and assistance that Mr V wishes to render to his wife in her
preparation for and conduct of the hearing, do not, in
my view,
establish ‘a direct and substantial interest in the
subject-matter’ of the litigation. See
United
Watch and Diamond Co. (Pty.) Ltd. And Others v. Disa Hotels Ltd. and
Another
1972
(4) SA 409
(C), at p 416.
[8
] The
evidence which Mr V wishes to give appears to be relevant to the
issues that are to be determined at the hearing of oral evidence.
Mr
V will, whether or not he is granted leave to intervene, probably be
called as a witness at that hearing by either Mrs V or
by the Centre
for Child Law on behalf of the minor children, or even by Mr S. Mr
V, Mrs V and the minor children are essentially
on the same side in
respect of the issues to be determined at the hearing of oral
evidence. It is also to be noted that a subpoena
to give evidence
was served upon Mr V on behalf of Mr S when the matter was previously
set down for hearing on 26 August 2008.
[9] In
Wynne
v. Divisional Commissioner of Police and Others
1973
(2) SA 770
(E.C.D), Addleson J said this at p 776A – B:
‘
Where there is an attack on the
character of a person who is not a party to the litigation, it is
conceivable that there may be
a limited right to intervene, provided
that it will be essential, for purposes of the judgment, that the
correctness of such attack
be considered and decided as part of the
Court’s reasons for determining the issue between the parties.
See, for example,
the authorities referred to earlier in this
judgment.’
[10] In his
answering affidavit in these proceedings, Mr S
inter
alia
states
that Mr and Mrs V indoctrinated the minor children against him and
alienated them from him; that, because of the conduct
of both Mr and
Mrs V, ‘the best interests of B and M have been gravely
prejudiced’; that Mr S believes that the abrupt
termination of
his contact with the minor children ‘was orchestrated’ by
Mr V; that Mr V ‘deemed it fit to interfere
with every aspect
of Mr S’s ‘parenting’ of the minor children; that
Mr V ‘insisted on involving himself
and conducted himself in a
negative and obstructive manner’ towards Mr S; that Mr V ‘has
made various efforts to obstruct
and prevent’ his access to the
minor children ‘and has in fact been successful in doing so for
almost three years’;
that Mr S considers Mr V ‘to be the
continuing primary problem in the matter.
[11
] Various
allegations have also been made of manipulative, intimidating,
interfering, and obstructive conduct, or attempts at such
conduct, on
the part of Mr V in relation to the court appointed case manager, Dr
Wilke, and other experts and persons. It is alleged
that Mr V ‘…
has been a proverbial ‘troublemaker’ throughout these
proceedings …’
[12
] Although
Mr V will probably in any event be called as a witness, I am of the
view that he should be granted leave to intervene
in the consolidated
proceedings that have been referred for the hearing of oral evidence.
[13
] Many
of the allegations made against Mr V are ‘directly in issue
between the litigating parties and would necessarily have
to be
decided in the course of the judgment on the merits.’
Wynne
(supra)
at p 774A – H. It ‘… will be essential, for
purposes of the judgment, that the correctness of such attack be
considered and decided as part of the Court’s reasons for
determining the issue between the parties.’
Wynne
(supra)
at p 776A – B.
[14
] Also,
if the damaging allegations against Mr V were to be proved, and it is
not suggested that they will be proved, orders that
the court might
wish to make in the best interests of the minor children may
conceivably directly involve Mr V, such as to require
his
participation in certain actions or his refraining from certain
conduct, despite the formulation of the relief prayed for in
the
respective notices of motion.
[15] It is common
cause between all the parties that the litigation must come to an end
and be finalised expeditiously. The matters
on which Mr V intends to
testify and many of the allegations made against him relate to the
issues that have been referred for
the hearing of oral evidence. To
direct Mr V to file separate affidavits in the relocation and access
applications and for the
other parties to answer thereto, will, in my
view, result in unnecessary delay and the incurrence of unnecessary
additional costs.
A single affidavit in which Mr V briefly sets out
his intended evidence and answers to the allegations made against him
insofar
as they are relevant to the issues that have been referred
for the hearing of oral evidence should, in the circumstances,
suffice.
[16
] In
the result the following order is made:
Mr
V
is joined as the second applicant in the application under case
number 2003/20813 (‘the relocation application’)
and as
the second respondent in the application under case number 2007/9126
(“the access application”).
Mr V is ordered to
file an affidavit within ten days of the date of this order, which
affidavit must contain a brief summary of
his intended evidence on
the issues that have been referred for the hearing of oral evidence
in terms of the court order granted
by Victor AJ on 19 June 2007,
and a brief answer to the allegations made against him insofar as
they are relevant to such issues.
Any party may, on
proper notice to all the other parties, approach this court for an
amendment of paragraph 2 of this order or
for further directions as
to the further procedure in the
consolidated proceedings that have been referred for the hearing of
oral evidence.
The costs of this
application, including the costs that were reserved on 3 March 2009,
are to be costs in the cause.
P.A. MEYER
JUDGE OF THE HIGH COURT
29
April
2009