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[2009] ZAGPJHC 120
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S v V and Others (2003/20813,2007/9126) [2009] ZAGPJHC 120 (11 December 2009)
SOUTH GAUTENG HIGH COURT, JOHANNESBURG
Case No. 2003/20813
2007/9126
DATE:11/12/2009
In the matter between:
MR.
S
........................................................................................................
Applicant
and
MRS.
V
.........................................................................................
First
Respondent
B
..............................................................................................
Second
Respondent
M
.................................................................................................
Third
Respondent
MEYER, J
[1] This is an
application in terms of Rule 33(4) of the Uniform Rules of Court.
[2] The applicant,
Mr. S, and the first respondent, Mrs V, were formerly married. B,
who is the second respondent, and M, who is
the third respondent,
were born from the former marriage relationship between Mrs V and Mr
S. Mrs V is now married to Mr V, who
is also a party to the
proceedings forming the subject-matter of this interlocutory
application.
[3
] 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’.
[4
] 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.
[5
] 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. Paragraph 1 of the order is presently relevant.
It reads:
‘
1. That the
matter is referred for the hearing of oral evidence on the following
issue:
1.1 What access the
Applicant should continue to exercise to the minor children born of
the
marriage between the Applicant and Respondent and which is in the
best interests of the minor children;
1.2 Whether there
has been parental alienation of the children by the Respondent and
her husband, V;
1.3 Whether the Applicant has sexually
and/or physically and/or psychologically and/or emotionally abused
the minor children;
1.4 The
Application issued in the above Honourable Court under case number
2003/20813 for the relocation of the Respondent and the
minor
children to New Zealand, which is currently pending, is to be
consolidated with the oral evidence to be given in the present
matter, it being recorded that the issue of access before the court
in this application, has a direct and material bearing on the
outcome
of the relocation application in regard to the issue of access upon
relocation.’
[6] The relief
presently claimed by Mr. S in terms of the notice of motion is the
following:
‘
1. That in terms of Uniform
Rule 33(4), the issue set out in paragraph 1.1 of the Order of Her
Ladyship, the Honourable Ms Justice
Victor dated 20 June 2007 being
Annexure “A” to this Notice of Motion, namely what access
the Applicant should continue
to exercise to the First and Second
Respondents which is in the best interests of the First and Second
Respondents, be decided
first and separately and in such manner as
this Honourable Court may deem appropriate, from any other questions
and/or the issues
set out in paragraphs 1.2 to 1.4 of Annexure “A”
(“the remaining issues”).
2. That the
remaining issues be postponed
sine
die
.
3. Costs only in
the event of opposition on the scale as between attorney and client,
alternatively
on such basis and/or scale as the Honourable Court deems appropriate.
4. Further and/or alternative relief.’
[7] The issues of
parental alienation and abuse are part of the access or contact
question and cannot, in my view, be separated
for later decision.
The determination of contact will obviously require an evaluation of
inter
alia
the
issues of parental alienation and abuse. It will simply be
inappropriate to grant the relief in the form in which it is prayed
for in the notice of motion and I need not dwell on this any further.
[8] I nevertheless
consider whether the relocation question should be separated from the
access or contact question and be postponed for later adjudication.
The separation of the contact and relocation questions and the
postponement of the relocation question until the final determination
of the contact question will shorten the trial about contact to a
certain measure. A consideration of the overall convenience,
however, involves factors other than the actual duration of the
hearing. The litigation between Mr. S and Mrs. V concerning their
minor children has gone on for many years. The best interests of the
minor children demand that the litigation be brought to finality.
A separation is likely to cause considerable delay in the reaching of
a final decision on the remaining issue. Considering
the manner in
which the litigation has proceeded over the past number of years, it
seems to me unlikely that the determination
of contact will result in
finality and the curtailment of future litigation. Also, a
separation will result in a duplication of
evidence since some of the
same witnesses will probably be called to testify on each of the
issues. The questions of relocation
affect the question of contact
and
vice
versa
.
The questions are inextricably linked. Both may be awarded and the
contact designed to fit the relocation, or only one or none
may be
awarded by the trial court determining the issues referred to in the
order of Victor, J.
[9
] In
all the circumstances I am not satisfied that the question of contact
and other issues may conveniently be decided before and
separately
from the question of relocation. The expeditious disposal of the
litigation will, in my judgment, be best serve by
ventilating all the
issues at one hearing. See:
Denel
(Edms) Bpk v Vorster
2004
(4) SA 481
(SCA), para 3.
[10] I need not
make any costs order since the first respondent and Mr. V represent
themselves in person and I was informed that
The Centre for Child Law
does not seek a costs order against the applicant in this
application.
[11
] In
the result the following order is made:
The application is dismissed.
P.A. MEYER
JUDGE OF THE HIGH COURT
11
December 2009