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2024
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[2024] ZAFSHC 145
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B v K (441/2020) [2024] ZAFSHC 145 (13 May 2024)
FLYNOTES:
FAMILY
– Interdict –
Harassment
and abuse
–
Applicant
bemoans that respondent threatens her with contempt of court
proceedings – That she will be arrested when
she arrives in
South Africa and feels intimidated and harassed thereby – So
called “threats" are all lawful
remedies which
respondent has at his disposal to compel applicant to comply with
divorce order – WhatsApp messages
do not constitute
harassment, illegitimate threats, abuse or intimidation –
Rule nisi discharged.
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
YES/NO
Of
Interest to other Judges:
YES/NO
Circulate
lo Magistrates:
YES/NO
Case
no: 441/2020
In
the matter between:
B
Applicant
and·
K.
Respondent
CORAM:
VAN ZYL,
J
HEARD
ON:
30 NOVEMBER 2023
DELIVERED
ON:
13 MAY 2024
[1]
The parties hereto
got married to married to each other on 10 January 2015 and were
divorced by an order of this Court on 9 March
2022, which divorce
order incorporated a Deed of Settlement concluded between the parties
on the same date.
[2]
One minor child was
born from the marriage relationship between the parties, a boy, born
on 3 March 2017 ("the minor child”).
[3]
In order to protect
the identity of the minor child the identity of the parties is not
revealed. I will refer to the mother as
"the
applicant”,
who
was the plaintiff in the divorce action, and to the father
as
"the
respondent”,
who
was the defendant in
the
divorce action.
[4]
This is the extended
return date-
of
a rule
nisi
which
initially served on an urgent and
ex
parte
basis
before one of my colleagues, when,
inter
alia,
the
following order was made:
"2.
That a Rule
Nisi
be
issued
herewith...
2.1
The Respondent is
ordered and directed not to assault, insult, threaten, harass,
verbally abuse, physically abuse, emotionally abuse
and/or to [sic]
intimidate the Applicant and/or the minor child.
2.2
The Respondent is
ordered not to enlist the help of another person to commit any of the
acts mentioned in
prayer
2.1
supra.
2.3
The Respondent
is
interdicted
and restrained from being within a distance of fifty (50) metres from
the Applicant's person.
2.4
It is declared that
the Respondent's contact rights, as set out in paragraph 3.3 and 3.4
of the Deed of Settlement and which was
made and Order of Court on 9
March 2022, be suspended pending the finalization of an Application
to be instituted for the Amendment
of the Respondent's contact
rights.
2.5
It is declared that
pending the finalization of the Application referred to
·in
prayer 2.4,
supra,
that
the Respondent will exercise his contact rights with the minor child
as follows:
2.5.1
Telephonic contact
once a week at 19h00 UK time on a Friday;
2.5.2
Supervised and/or
supported contact.
2.6
The Applicant is
ordered to issue the Application for the Amendment of the Deed of
Settlement referred to in prayer 2.4
supra
within a
period of thirty (30) days from dated of the confirmation of the Rule
Nisi
as
a Final Order of Court.
2.7
The Respondent is
ordered and directed to pay the Applicant's costs.
3.
That prayers 2.1
to 2.5
supra
shall
serve as an
interim
interdict against the Respondent
with immediate effect
until the return date.
4.
…”
[5]
Although lengthy, it
is crucial to repeat the terms of the aforesaid Deed of Settlement,
dated 9 March 2022, in respect of the respondent's
rights of contact
which was
made
an order of
Court
under the above case number in the divorce action between the
parties:
"2.
That
primary residence of the minor child be awarded to the Plaintiff.
3.
That
specific responsibilities and rights with regard to contact with the
minor child as contemplated in Section 18(2)(b) of the
Children's
Act. Act 38 of 2005 be awarded to the Defendant in the following
manner:
3.1
The
.
Defendant to
have reasonable telephonic and/or audio-visual contact with the minor
child via Zoom/Vhatsapp call/Vhatsapp video call
for at least one (1)
hour every second day between 18:00 and 19:00 South African time.
3.2
Contact in
South Africa during 2022:
3.2.1
The minor child to
visit the Defendant in South Africa for a period of two (2) weeks
during the minor child's long school holiday
in August 2022;
3.2.2
The minor child shall
be accompanied to South Africa by an adult family member as agreed
upon by the parties or the Plaintiff;
3.2.3
The parties to be
jointly liable for the flight costs of the minor child in August
2022;
3.2.4
The Plaintiff to have
sleepover contact with the minor child on the first weekend of the
August 2022
·
visit;
3.3
Contact in
South Africa from 2023 onwards:
3.3.1
The minor child to
visit the Defendant in South Africa for a maximum period of three (3)
weeks over the minor child's long school
(summer) holiday, such
contact to coincide with the minor child's academic term and/or
school calendar for the year;
3.3.2
The minor child shall
be accompanied
on
the flight to and from South Africa by an agreed-upon adult family
member until he reaches the age
of
ten
(10)
years
old,
thereafter
the
minor
child
shall
be accompanied to and
from South Africa by an agreed-upon adult family member,
alternatively
the parties shall
arrange for the minor child to travel to and from South Africa on a
direct flight using unaccompanied minor services;
3.3.3
Should the Plaintiff
accompany the minor child to South Africa then and in that event the
Plaintiff shall be entitled to sleepover
contact with the minor child
during the first weekend of such visit;
3.3.4
The parties will be
jointly liable for the minor child's flights to and from South
Africa, including any fees incurred because of
the use of the
unaccompanied minor services;
3.4
.
Contact
in the UK from date of Court Order:
3.4.1
The Defendant shall
have the right to reasonable and unsupervised contact with the minor
child at such times as the Defendant visits
the United Kingdom, for
any period not exceeding four (4) weeks at a time, subject to
the
following:
3.4.1.1
Should such contact
occur during the minor child's school term, the Defendant shall
exercise contact as follows:
3.4.1.1.1
Contact shall occur
after school hours and the minor child is to be returned home to the
Plaintiff before 18:00 pm.
3.4.1.1.2
The Defendant may
attend extra-mural activities and transport the minor child to and
from such activities;
3.4.1.1.3
Sleepover
contact
every weekend;
3.4.1.2
Should the contact
occur during any of the minor child's school holiday periods
(excluding the long school holiday), the Defendant
shall exercise
unrestricted contact with the minor child;
3.5
The Defendant shall
give the Plaintiff at least one (1) calendar month's prior notice of
his intention to travel to the United Kingdom
to exercise his contact
rights;
3.6
The Defendant's
contact rights towards the minor child in the UK, as specified herein
above, is subject thereto that contact with
the minor child on
Christmas day will alternate between the
·
parties;
3.7
The Plaintiff will
provide all information relating to the physical, educational and
emotional care of the minor child to the Defendant;
3.8
Video
call/Skype/zo
·
om
or other electronic contact with the minor child with the Defendant
on the birthday of the minor child and the Defendant;
3.9
In the
·
event
that the Defendant visits the minor child in the United Kingdom on
the birthday of the minor child, the minor child's birthday
is to
be shared equally
between the parties.
4.
Should
the Defendant in
future
take up residency
in
the United
Kingdom, the Defendant shall be entitled to reasonable contact with
the minor child.
5.
That
a
Parenting
Plan
annexed
hereto
marked
as
Annexure
"X"
,
be incorporated into
the Settlement Agreement and made an Order of Court
.
"
[6]
The aforesaid
Parenting Plan,
inter
alia,
determines
as follows:
“
Passport
and Traveling:
3.1
The parties shall
ensure that the child's passport
is at all times valid
to enable him to travel internationally and they shall timeously take
all such steps which may be necessary
to renew the child's passport.
3.2
If the child is to
travel with the consent of both parents, each parent shall sign all
the necessary affidavits, visa applications,
consents and other
documents which may be necessary to enable the child to travel."
[7]
.
The respondent is
opposing the application and is seeking an order that the rule
nisi
be
dismissed with costs on an attorney and client scale.
Background:
[8]
The applicant is a
citizen of the United Kingdom
·
(“the
UK") by birth
.
After the divorce of
her parents during 2011, she however remained in South Africa with
her mother. During 2020 the applicant decided
to move back to the UK,
together with the minor
child.
The
respondent
remained
in
South Africa. Summons in the divorce action between the applicant and
the defendant was
issued in
February
2020 and, as previously stated, they got divorced after having
concluded a Deed of Settlement on 9 March 2022.
[9]
The parties have been
having a very acrimonious relationship, especially in respect of
contact rights of the respondent with the
minor
child.
This
resulted,
inter
alia,
in
numerous
correspondence between the applicant's attorney of record and the
respondent's attorney of record.
[10]
At paragraph [40] of the founding affidavit the applicant stated that
"on 18 August 2023, the Respondent addressed various
WhatsApp-messages to
me
stating
that
he
no
longer
has a
South African Attorney of Record,
that he will appoint
a
new Attorney of record in the United
Kingdom and that he
is
departing for the United
Kingdom
on Thursday,
24
August
2023".
[11]
With reference to the
last-mentioned
event,
the applicant stated at paragraph [13] of the founding affidavit
under the heading of
"urgency"
as follows:
"For
reasons which will become more evident from the averments contained
in paragraphs hereunder I fear that the Applicant
will arrive at my
house and remove the minor child, that he might assault me and that
he will remove the minor child from the United
Kingdom. For this
reason, I urgently require the assistance of the Honourable Court to
grant me the relief sought."
THE
MERITS:
[12]
I will succinctly
deal with the most relevant averments made by the respective parties
.
The
founding affidavit:
[13]
In
addition to
the above-mentioned
averments which the
applicant made
in
support of
the
alleged
urgency of
the
application,
the applicant relies on,
inter
a/ia,
the
following allegations in her founding affidavit:
1.
The respondent
physically assaulted the applicant by hitting her
in
the face with
an open hand during 2016
.
2.
The applicant at the
very next paragraph of the founding affidavit, paragraph 21
,
avers as
follows:
"I
was afraid
that history will repeat itself and that the Respondent will,
considering his short temper, continue assaulting me, or
the minor
child for that matter, in future. As such I arrived at the conclusion
that it was no longer
in
the best
interest of myself and/or the minor child to remain in such a toxic
and abusive
relationship and for these reasons I have issued a Summons out of the
Free State High Court on 3 February 2020 under
Civil Case Cover
number 441/2020."
3.
During June 2022 the
applicant, in compliance with the Deed of Settlement, applied for a
passport for the minor child so that he
could visit the respondent
in
South Africa during
his 2022 school holidays. It was not possible to obtain a passport
timeously for the minor child, because of
a certain backlog with the
applicable state department, which cannot be contributed to the
applicant.
4.
Thereafter the
relationship between the applicant and respondent
deteriorated and
the respondent kept
on
abusing
the applicant verbally, threatening and harassing her, which
averments are, according to the applicant, substantiated by
copies of
WhatsApp messages attached to the founding affidavit.
5.
The respondent
subjects the applicant to constant emotional onslaught and abuse,
while the respondent, knowing very well that the
applicant is not
available, would then repeatedly phone the applicant in order to
create the impression that the applicant is ignoring
his calls and
does not allow him to exercise his contact rights, whereafter he
complains about it. When st)e informs the respondent
that they are at
home and available to answer his phone calls, he ignores them. The
applicant mentioned examples of when this,
according to her,
happened, starting with examples of 19 December 2021 and 30 December
2021, respectively.
6.
The respondent is
accusing the applicant of committing a criminal offence and of
bribery. He is threatening the applicant with contempt
of
court proceedings and
he is further threatening the applicant by informing her that she
will be arrested should she set foot in
South Africa
.
7.
The applicant has
repeatedly informed the respondent that his accusations are not true
and requested him to stop his false accusations,
to stop harassing
her and intimidating her.
8.
The applicant has
been severely traumatized as a result of the physical
abuse she
was subjected to
during the existence
of
their
marriage relationship and she is being treated for Post
Traumatic Stress Disorder, while the respondent's continued
harassment is not beneficial to her health and is causing substantial
stress for her.
9.
According to the
applicant it is evident from the WhatsApp messages that she has been
subjected to unprecedented harassment and
emotional abuse. The
planned visit to
the
UK is nothing else than a step-up in his approach to harass the
applicant and she is afraid that his conduct will escalate to
physical altercations and that he might even assault the applicant
as he has done in the
past.
10.
The respondent is
abusing the present order to harass the applicant and the minor
child.
11.
Even if the
applicant's fear of a physical assault does not materialize, the
applicant still needs the urgent intervention of the
Court since she
can no longer tolerate the respondent's continued emotional and
psychological abuse, threats and harassment.
12.
An amendment to the
Deed of Settlement requires the urgent intervention of the Court in
as far as the respondent's contact rights
are concerned
.
Alternatively,
should the Court be of the view that it does not possess the
necessary jurisdiction to grant such
an
order,
or
that
another
Court
will
be
better
suited
to consider the
aforementioned relief, that the.
respondent's
contact rights be suspended pending the finalisation of an
application to be instituted in an appropriate Court. The
existing
Order is no longer in the best interest of the minor child.
13.
The applicant believes that
with one or two contact sessions the respondent
will behave,
but
the
moment
he is
allowed
to
take the minor child
with him for an extended period of time, the risk of him assaulting
the minor child will increase significantly
.
14.
The applicant is
concerned that should the respondent be allowed to take the minor
child with him in the UK, he will not return
the minor child but
rather attempt to return with the minor child to South Africa.
15.
The
applicant is
concerned that should she
return
to
South
Africa the respondent
will
refuse to return the minor child.
16.
The time, duration
and amount of telephonic contact no longer serves the best interest
of the minor child.
17.
The applicant has
already consulted with a solicitor in the UK and
they are in
the process of
preparing an application to amend the respondent's parental rights
and obligations in order to ensure that the best
interest of the
minor child is ultimately served
.
The
answering affidavit:
[14]
The respondent
relies,
inter
alia,
on
the following allegations in his
answering affidavit:
1.
The application was
launched without any reason, it was not urgent, it amounts to an
abuse of process and as such the rule
nisi
should be
discharged
and
the Court should grant a punitive costs order against the applicant.
2.
The Whatsapp messages
attached to the founding affidavit do not warrant the Order granted
against the respondent.
3.
This
Court does not have
jurisdiction to
grant
an
order
in respect of
the
care
and
contact rights relating to
the
minor child
.
The only Court which
currently has such jurisdiction is
the Court in
the UK where the
minor child resides.
4.
The respondent has
indeed departed to the UK. He, however, never had any intention of
removing the minor child from the applicant's
care, assaulting the
applicant or removing the minor child from the UK.
5.
The applicant
blatantly and dishonestly distorted the facts pertaining to the slap
with an open hand during 2016
.
The applicant
slapped the respondent twice as though it was a joke and the
respondent asked her to stop immediately, that it was
not funny and
that it hurts
.
When the applicant
thereafter tried to slap the respondent a third time, he caught her
wrists and in a serious manner again requested
her to stop slapping
him
.
The
applicant
then
slapped the respondent for a
third time in
the face
.
This slap was
so hard that both the respondent's eyes started watering with tears.
The respondent then instinctively slapped the
applicant
with an open hand in
the face
.
This was not a very
hard slap and
was
merely done to show her that she should stop with her actions
.
He could see
that the applicant did not expect that he would ever lift a hand to
her and she started crying
.
The respondent
immediately consoled her, they talked things over and it was never an
issue again.
6.
There was no abuse or
toxic behaviour from the respondent's side during the marriage
relationship
.
The applicant was not
subjected
to
physical abuse during
the
marriage relationship and such allegations are untrue and made with
the intent to mislead the court
.
7.
The
applicant blatantly
disregards the
Divorce
Order by failing to comply with the terms of the Deed of Settlement.
Although the respondent is currently in the UK, the
applicant is
refusing to allow the respondent to have contact with the minor
child. This conduct amounts to parental alienation.
The applicant
does not want to allow any relationship between the respondent and
the minor child.
The
applicant should not be heard by the Court whilst in Contempt
of the Divorce Order
.
8.
The reason why the
respondent has not been having physical contact with the minor child
is due to the applicant's failure to comply
with the
terms of
the Deed
of Settlement,
specifically with regard to
the
contact in South Africa during 2022. Although the
respondent has
telephonic / audio-visual contact with the minor child
,
this contact
has been problematic due to the applicant's conduct in frustrating
such contact as far as possible.
9.
According to the
respondent the WhatsApp messages attached to the founding affidavit
do not depict abusive conduct on his part,
but rather shows the
manners in which the applicant frustrates his contact with the minor
child. According to the respondent It
shows attempts by
"a
desperate
father to have contact with his child whilst being frustrated to do
so".
10.
The respondent
did not abuse the
applicant verbally and did not threaten or harass her. The respondent
did not subject the applicant
to
constant
emotional
onslaught or
abuse.
The
fact
that the applicant made several phone calls to the applicant shows
that the applicant did not answer his calls during the times
when he
was allowed to have contact with the minor child
.
According to
the respondent, the WhatsApp messages, when read in context, show a
continuing frustration of the respondent's contact
rights in respect
of the minor child.
11.
The respondent is
currently in the UK and are being assisted by "Justice for
Fathers" who will enlist a mediator in an
attempt to reach an
agreement with the applicant regarding the respondent's contact
rights.
In
one message which the respondent sent to the applicant, he made it
clear that his intentions of travelling to the UK were to
visit the
minor child and to get the authorities and UK Court involved in the
dispute between the applicant and the respondent.
The respondent never
had any intention of removing the minor child from the applicant's
care.
The
only reason why he required a copy of the minor child
'
s
passport
was
due to the fact that a valid passport is required
in
terms of the
Divorce Order and that British Immigration requires proof of the
minor's passport for the respondent's supportive parent
Visa.
According to the respondent the applicant knows full well that he
would not be able to remove the child from the UK with
only a copy of
the minor child's passport
.
12.
According to the respondent
he is not an aggressive and short tempered man. The allegation
that he
will
assault the minor child is
baseless and
shocking.
According
to him
.
he
"has never
and will never assault my child'.
The
applicant is
mala
fide
in
making
such allegations.
•
13.
The applicant has
obtained a Court Order in the UK, which is confirmed by an email form
the applicant's solicitor attached to the
answering affidavit. It was
obtained in the absence of both the respondent and his attorneys.
According to the respondent the fact
that the applicant obtained such
an order is indicative thereof that the present application was
unnecessary
and amounts to
an abuse of process.
The
applicant does not want the respondent to have any contact with the
minor child and therefore launched the present application
in an
attempt to prevent the respondent from having contact with
the minor child
.
The interim
Court Order which the applicant obtained does in any event not assist
her in the UK as it is an order of a foreign Court
which has no final
effect.
14.
The
respondent has
not subjected the
applicant
to
any emotional
or
psychological
abuse.
He is also
not
intimidating,
insulting, abusing or
harassing her.
15.
The respondent no
longer intends to bring any Contempt of Court application against the
applicant. The applicant's unfounded fear
of being arrested and
detained does not warrant an interdict being granted against the
respondent,
as
the South African authorities will in any event not arrest or detain
the applicant without just cause.
The
replying affidavit:
[15]
In the replying
affidavit the applicant,
inter
a/ia,
makes
the following averments in response to the answering affidavit:
1.
In general, the
applicant persists with her version as contained in the founding
affidavit insofar as the respondent's version differs
from hers.
I am not going to
repeat such averments and will concentrate on
responses specific to
the answering
affidavit.
2.
The
respondent
is
misleading
the
Court
and
distorting
the
truth to the extent
that a punitive costs order should be granted against the respondent
3.
In the past the
respondent abused the applicant and he assaulted her and the minor
child. The applicant referred to paragraph 6.4
of her Particulars of
Claim filed in the divorce action where she stated that the
respondent has assaulted the applicant.
4.
The
.
respondent's
admission that he slapped the respondent, which he attempts to
justify and down play, is in contrast to his plea
filed in
the divorce action
where he
denied
that he
assaulted
the applicant and what he told the Social Worker during an evaluation
conducted by
the offices of the
Family Advocate when he also denied that he assaulted the applicant.
The applicant denies that she slapped the
respondent as averred in
his answering affidavit and also denies that
-
they
resolved the issue after the respondent slapped her.
5.
In addition to the
applicant having been assaulted, the respondent also hit the minor
child.
6.
The respondent
verbally abused the
applicant.
7.
The
applicant admits that
the
respondent
arrived in
the UK on 24 August
2023 and that she issued the application in the UK Court on 19
September 2023 which now governs the respondent's
interim contact
rights in the UK. According to the applicant, after the respondent's
arrival and until the issuing of the aforesaid
application in the UK,
the respondent never requested to see the minor child. Even after the
Interim Order was granted in the UK,
the respondent
again exercised none
of his allocated contact rights.
8.
The applicant denies
that the respondent never assaulted the minor child and referred to
incidents which the respondent admitted
to the
Family Counsellor and
which was
recorded
in
her
report.
9.
The applicant has
been advised by her Solicitor that in the absence of a Disclosure
order, the parties are not at liberty to attach
the Interim Order or
the e-mail already attached to the answering affidavit. They are also
not allowed to provide details regarding
the Court proceedings in the
UK. The applicant's solicitor approached the UK Court to obtain the
necessary permission to disclose
the Interim Order, but the request
has not been finalised
.
10.The
proceedings in the UK are so-called Children Court proceedings and as
such that Court will not grant an Order interdicting
the respondent
from assaulting, insulting etc the applicant. The applicant therefore
still requires an Order from this
Court in
the present
application. The
respondent is
using
the Divorce Order as a tool to harass and threaten the applicant.
11.
The applicants
conclude her replying affidavit with the following paragraph 48.4:
"Lastly
now that the
UK Court has granted an Interim Court order, there is basically two
Court Orders governing our parental rights and
responsibilities. As
matters stand, I have no guarantee that the Respondent will comply
with the Interim Court Order, even upon
his return to South Africa,
and I have a legitimate fear, considering our history of conflict,
that the Respondent may even argue
in months to come, should he not
be satisfied with the Orders granted by the UK Court, that the same
is not enforceable in South
Africa. There cannot be two different
Court Orders and this is why I require a declaratory Order suspending
the Respondent's contact
rights as is sought in prayer 2.4 of the
Notice of Motion to prevent that
uncertainty
and
any
potential
conflict
between
us
as
for
long
as the
necessary investigations are
conducted by the UN Court."
The
respondent
’
s
further
affidavit:
[16]
During an earlier
occasion when this matter served before a different Judge, that Judge
granted leave to the respondent to file
a further affidavit in
response to the applicant's allegations regarding the respondent's
alleged assaults of the minor child.
[17]
The respondent denies
that he physically assaulted the minor child
as
alleged
and
described
by
the
applicant
and
gives
his
version
of the relevant incidents. According to the respondent the
applicant's allegation that he assaulted the minor child is untrue
and simply
made in
an attempt
to obtain an
interdict which she
is not entitled to.
Urgency:
[18]
In both his written
heads of argument and during his oral arguments, Mr Els, on behalf of
the respondent, contended that the application
was not urgent and
should not have been heard and granted as such
.
[19]
I, however have to
agree with the
submissions
of
Mr
Coetzer, on behalf of the applicant, that the issue of urgency has
already been decided upon by the Judge who issued the rule
nisi
hearing.
That decision cannot be revisited, although I will return to this
aspect when I deal with costs
.
Contempt
of court and the right to be heard:
[20]
It is the
respondent's contention
.
that the
Applicant is
in
Contempt
of Court for failing
to comply with the provisions of the Divorce Order and as such she
should not be heard until she complies with
the said provisions.
[21]
It
is indeed so that a
Court
may
refuse to
ear
a person
who is in
Contempt of Court
until such contempt has been purged
.
This is, however, not
an absolute rule. To preclude a person from a hearing may cause great
injustice and as such a Court must exercise
its
discretion
based
upon
the
circumstances
of
the
case.
See
Di
Bona v Di Bona
1993
(2) SA 682
(C) at 688 - 690 B.
[22]
In the present matter
there is a dispute of fact as to whether the applicant is in wilful
and ma/a
fide
contempt
of the Divorce Order. I am not called upon to adjudicate this
dispute
.
In
the circumstances of the present matter and in view of my conclusions
and findings later in the judgment, I consider it just
and in the
interest of both the respondent and the minor child to allow the
applicant to be heard in this matter.
Jurisdiction
in respect of contact with the minor child:
[23]
The
following statutory
provisions are
applicable
in
this
instance regarding
the variation of a
Court Order dealing with contact and care of a minor child:
1.
Section 8(1)
of the
Divorce Act, 70 of 1979
, determines that an Order in
respect of
-
custody
or guardianship
or
access to a child made in terms of the said Act, may be rescinded or
varied if a Court finds that there is sufficient reason
for it.
2.
Section 8(2)
of the
Divorce Act states
further that a Court, other than the Court which
made the Order, may rescind
,
vary or
suspend such Order if the parties are domiciled in the area of
jurisdiction of such Court, or if the applicant is domiciled
in the
area of jurisdiction of such Court and the respondent consents to the
jurisdiction
of
the Court.
3.
Section 28(1)(a)
of
the
Children's Act, 38 of 2005
, states that a party may apply to a
High Court, a
Divorce
Court or a
Childrens
Court for an Order extending or circumscribing the exercise by that
person of any or all
of
the parental responsibilities
and
rights that person has in respect of a child.
4.
Section 29(1)
of the
Children's Act states
further that the aforementioned application may
be brought in the High Court, a Divorce Court or a Children's Court
within whose
area of jurisdiction the child concerned is ordinarily
resident.
5.
Section 21
of the
Superior Courts Act, 10 of 2013
, states that a Division of the High
Court of South Africa
has jurisdiction over all persons residing or being in and in
relation to all causes arising within its area
of jurisdiction.
[24]
In the matter of
Di
Bona v Di Bona,
supra,
the
following is
stated at 695 E to
696 D:
"In
our law, and English law would appear to be the same, the only Court
that has jurisdiction to order the handing over of
children and to
authorise, if need be, the Sheriff to take the children from one
parent and to hand them over to another, is the
Court of the place
where the children are to be found and where they are living and
under whose judicial guardianship the children
are
at
the
time
of
the
making
of
the
order
.
In
South
Africa the Supreme
Court is not bound by a foreign order of Court relating to the
custody of or access to children who are in South
Africa and who are
not, and were not, in a foreign country, the Court of which has
purported to make such order. The function and
duty of the South
African Court, where a dispute arises as to the custody
of or access to the
children, is to establish what is in the best interests of the
children, whatever another Court may have found
in this regard and to
make its own order accordingly.
It
has to
form an independent
judgment
on the
evidence before it and in the course of doing so it may give such
weight to a foreign custody or access order or an order
relating to
the well-being of the children as the circumstances
may justify, but it
is certainly not bound by such foreign order nor will it grant
process in aid of the enforcement of such an
order without the
enquiry which I have mentioned. (See
Martens
v Martens
1991
(4) SA 287
(T)
at
292;
Matthews
v
Matthews
1983
(4)
SA
136
(E);
Desai
v
Desai
1987
(4)
178
(T);
Abrahams
v
Abrahams
1981
(3)
SA
593
(B);
Zorbas
v
Zorbas
1987
(3)
SA
436
(W);
and
Riddle
v
Riddle
1
·
955
(2)
SA
739
(Q at
744-5, which decision
was cited with approval and applied in
Katz
v Katz (supra
at
379D-G).)
The
refusal of Courts of a country where the chil ren are to
enforce custody and
access orders made by a foreign Court is based not only upon the
propositions
aforementioned
but
also
upon
other
legal
grounds.
Both in South Africa
and in England, a foreign order of Court may be enforced only if it
is a final and conclusive judgment or order,
that is to say, if the
judgment is
regarded
by the Court
which made it as
res
iudicata.
A
judgment which is variable by the Court which pronounced it is not a
final order
and
will
never
be
enforced
by
the
Courts
of
any
other
country. (See
Dicey
and Morris (op cit
at
428)
.
)
An order
for the custody of, or access to, children is
par
excellence
a
variable
and not a
final
order, and will not be enforced
per
se
in
England
if granted
in this
country. This
Court
accordingly
has
no
jurisdiction
to
make
an
effective
order
in respect of children who are in England and no longer within South
Africa.
In
any event, this Court clearly has no jurisdiction to order the
handing over of a child which
is
in another
jurisdiction where the writ of Court does not run
.
(See
Ceronio
v Snyman
1961
(4) SA 294
(W)
at
297H- 2988,
applying
Coomb
v
Coomb
1908
TH
241
;
Anderson
v
Van Vuuren
1930
TPD 118
,
Martine
v Large
1952
(4) SA 31
(W).)
This
Court accordingly
has
no jurisdiction to entertain the proposed action
insofar as it relates to an
order for the return of the children from England to South Africa and
for the handing over of the children
to applicant pursuant to
whatever rights of access to the children he may have
.
He must have
recourse to the appropriate English Court, which is the upper
guardian of these two children, to seek his remedies
in this regard
.
"
(My emphasis)
[25]
In
the judgment
of
N.A.N
v C.N
(2425/2016)
[2017] ZAECPEHC 61
(14
December 2017) at
paragraph [22]
the
following is
stated:
"[22]
The terms of
section 29
are clear and unambiguous and, in my view,
serve as an overriding determinant of jurisdiction in circumstances
where a court is
called upon to terminate, suspend or circumscribe
the parental rights and responsibilities of a parent.
The
requirement is that the minor child must be ordinarily resident
within the area of jurisdiction of the court.
This is a
territorial limitation of jurisdiction." (My emphasis)
[26]
In
the matter of
J.5
v W.F
JDR
1572 at para [46]
the
court stated as follows:
"In
light of the above, I am of the view that if
the relief sought in
prayer 4.5 of the amended notice of motion entails limitation or
extension of parental responsibilities, the
matter falls outside the
scope of the Court's jurisdiction. If, however, the relief sought is
a declaratory order in which the
applicant's rights as co-holder of
parental responsibilities and rights and co-guardian of the minor
children is to be defined,
the position changes. A declaratory order
will not change the
status
quo but merely
delineate the parties' rights and responsibilities as it is informed
by the settlement agreement and the relevant
sections of the
Children's Act "
(My
emphasis)
[27]
From
the aforesaid
legislation and case law, it is
evident that the only
Court which has
jurisdiction over the
care and
contact rights in
respect of the minor child, is the Court in whose jurisdiction the
minor child is residing; hence; the relevant
Court in the UK.
[28]
With regard to a
declaratory
order,
the following is stated in the judgment
of
Sex
Worker
Education
and
Advocacy
Task Force
v
Minister
of Safety and Security and Others
2009 (6) SA 513
(WCC)
at paras [35] to [37]:
"[35]
I now deal with the relief sought by applicant, namely declaratory
and
interdictory
relief.
[36]
It is trite that a court has a discretion to grant declaratory
relief in terms of s
19(1)(a)(iii) of the Supreme Court Act 59 of 1959. In
Cordiant Trading
CC
v
Daimler
Chrysler
Financial
Services
(Ply) Ltd
2005
(6)
SA
205
(SCA)
([2006)
1 All SA 103)
at 213E - G, it was held that the said section requires a two-stage
approach. Firstly, the court must be satisfied that the applicant
has
an interest in an existing, future or contingent right or obligation.
Secondly, if the court is satisfied that such an interest
exists,
it
must be
considered whether or not the order should be granted
.
This latter
stage involves the exercise of a discretion with due regard to the
circumstances of the case.
[37]
As explained by Erasmus
Superior
Court Practice
at
A1-34/34A, a court
may,
in
the
exercise
of
its
discretion
whether
to
grant
or
refuse a declaratory
order, decline to
deal with the matter where there is no actual dispute. It may also,
in the exercise of its discretion, decline
to grant a declaratory
order if it regards the question raised before it as hypothetical,
abstract or academic.
Nor
will a court grant a declaratory order where the
issue
has
already been decided by a court of competent jurisdiction,
or where the legal
position has been clearly defined by statute. See
Garment
Workers
'
Union,
Western Province, and Another v Industrial Registrar and Another
1967
(4) SA 316
(T)."
(My
emphasis)
[29]
The relief the
applicant
is
seeking in the
present matter in relation to the suspension/limitation of the
contact rights of the respondent to the minor child,
is a
.
far
cry from a declaratory order
.
The present
order is
clear and
unambiguous.
The
attempt to couch the
requested
relief
in the form of a
declaratory
order,
is
completely
without
basis
or
substance.
I
will
return
to
this aspect when I
deal with costs.
[30]
This Court,
consequently,
clearly
had and has no jurisdiction to have granted paragraphs 2.4, 2.5 and
2.6 of the rule
nisi
and same
should be discharged.
[31]
In the circumstances
it serves no purpose to deal with the merits or demerits of the said
relief claimed
.
•
Final
interdict:
[32]
It is trite that the
three requirements
for
a final interdict
are
the following:
1.
A clear right on the
part of the applicant.
2.
An injury actually
committed or reasonably apprehended
.
This means
that there must be
proof
of some act interfering with the applicant's right or a well-grounded
apprehension that such an act will occur.
3.
The absence of any
other satisfactory remedy available to the applicant.
[33]
With regard to a
clear right, it is being described as follows in
Erasmus,
Superior Court Practice,
at
RS 22, 2023, 06-14 & 06-15
:
"...but
a more correct rendering would be a
'
definite
right'. It is submitted that what
is meant by
the phrase
is
'a
right
clearly
established'. Whether
the
applicant has a right is a
matter of substantive law; whether that right is clearly established
is a matter of evidence. In order
to establish a clear right the
applicant has to prove on a balance of probability the right which he
seeks to protect."
[34]
An injury actually
committed must be a continuing one as the Court will not grant an
interdict restraining an act already committed.
[35]
The test for the
reasonable apprehension of an injury is an objective one. An
applicant must therefore show objectively that his/her
apprehension
is well grounded. Mere assertions of his/her fear is
insufficient. The
facts grounding the apprehension must be set out in the application
to enable the Court to judge for itself whether
the fear is indeed
well grounded
.
See
Erasmus,
Superior Court
Practice,
supra,
at
RS 22, 2023, 06- 16 &
D6-16A:
[36]
Factual disputes
rnust be resolved,
if
the parties do not request such issues to be referred for trial or
evidence in terms of rule 6(5)(g_,
by applying the
test enunciated in
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd,
namely
that the interdict sought can be granted only if the facts as stated
by the respondents, together with the admitted facts
in the
applicant's affidavits, justify the granting thereof. In
Nampesca
(SA) Products (Pty) Ltd and Another v Zaderer and Others
1999
(1) SA 886
(C) at 892 C it is stated as follows:
“
As
the
applicants are seeking relief which is final of nature and the
parties have not requested that any factual issues be referred
for
trial or evidence in terms of Rule 6(5)(g), such disputes must be
resolved by applying the test enunciated
in
Plascon-Evans
Paints
Ltd v Van Riebeeck
Paints
(Pty) Ltd 1984 (3) SA623 (A) at 634E-G, namely that the interdict
sought can be granted only if the facts as stated by the
respondents,
together with the admitted facts in the applicants' affidavits,
justify the granting thereof. Where there are disputes
of fact a
Court can decide the issues only if it is satisfied that there are no
real and genuine disputes of fact; that the respondent's
allegations
are so far-fetched or untenable that their rejection merely on the
papers is warranted; or that viva voce evidence
will not disturb the
probabilities appearing from the affidavits. (See Administrator,
Transvaal, and Others v Theletsane and Others
[1990] ZASCA 156
;
1991 (2) SA 192
(A) at
1978.)"
[37]
In
Soffiantini
v Mould
1956 (4) SA
150
(E)
at
154 G
-
H
the Court held as
follows:
"It
is necessary to make a robust, common-sense approach to a dispute on
motion as otherwise the effective functioning of the
Court can be
hamstrung and circumvented by the most simple and blatant stratagem.
The Court must not hesitate to decide an issue
of fact on affidavit
merely because it may be difficult to do so. Justice can be defeated
or seriously impeded and delayed by an
over-fastidious approach to a
dispute raised in affidavits."
Clear
right:
[38]
The applicant has a
clear right not to be assaulted, insulted, threatened harassed,
abused and/or intimidated and the same applies
to the minor
·
child. I consequently
agree with Mr Coetzer's submission that the first requirement for a
final interdict has consequently been
established.
[39]
I
will now
turn to
deal with
t
_
he
second
requirement
of an
injury
or injuries actually committed or reasonably apprehended.
Injury
actually committed or reasonably apprehended:
A:
Assaults or threats of assault on the applicant:
[40]
The one slap in the
face with an open hand by the respondent occurred during 2016
already. The parties differ as to what led up
to it and the long term
impact, if any it had on their relationship. I do not suggest that
the said slap was acceptable, not at
all. The fact is that it was and
is not a continuing injury. Nowhere is there any suggestion that the
respondent again assaulted
the applicant or even threatened to
assault her after that one incident.
[41]
The applicant in her
replying affidavit points out that already in the Particulars of
Claim which the applicant filed in the divorce
action, she averred
that the respondent has assaulted her. However, it is necessary to
also look at the counterclaim which the
respondent filed in
the divorce action
wherein he specifically also pleaded that the applicant assaulted the
respondent
"by
slapping him in his face".
[42]
If
the assault-incident
had such
a profound negative
impact upon their marriage relationship as averred by the applicant,
I find it strange and unexpected that the
minor child was still
conceived after that. incident and that the applicant remained in the
marriage relationship until February
2020 when the divorce action was
instituted. I would also have expected the applicant to have made
more of an issue about it during
the investigation by
the Family Counsellor
and the family advocate, which she did not.
[43]
The allegation by the
applicant that she was afraid that
"history''
would
repeat itself and that the respondent will
"continue
assaulting"
her,
causes her to presently have a reasonable apprehension that the
respondent will assault her, is
completely baseless
and unfounded.
B:
Assaults or threats of assault on the minor child:
[44]
Paragraphs 2.1 and
2.2 of the rule
nisi
provide,
inter alia,
for an
interdict against assaulting the
minor child. The one
averment in the founding affidavit in support hereof is a side-remark
in respect of the minor child at paragraph
21 of the founding
affidavit:
"I
was afraid
that history repeat itself and that the respondent will, considering
his short temper, continue assaulting me,
or
the minor child for that matter,
in
future". (My emphasis)
The
second remark is contained at paragraph 43.2 of the founding
affidavit where the applicant states that she believes that with
one
or two contact sessions the respondent will behave, but the moment he
is allowed to take the minor child with him for an extended
period of
time, the risk of him assaulting the minor child will increase
significantly.
[45]
In
my view no factual
basis or
foundation
whatsoever was made out in the founding affidavit for the aforesaid
relief.
[46]
It was only once
the
respondent denied in
the
answering affidavit
that
he
ever
and
will
never
assault
the
minor
child,
that
the
applicant saw it fit to
mention the incidents which she labels as “assaults".
The question once
again arises, as with the allegations regarding the slap in her face,
why the applicant did not consider those
incidents important enough
to
.
have mentioned
the
details
thereof
in
the
founding
affidavit.
The applicant
seemingly
did
not
consider
those
incidents
to have been assaults
in
the
true sense of the
word, otherwise one
would
have expected that she would have mentioned the details. rm not
implicating that same did not happen, since the respondent
himself
admits the occurrence
of
the three incidents as he did
in
the
report
of the
Family
Counsellor.
My
concern
lies
with
the applicant's
version, or the lack thereof in the founding affidavit, that it
constituted assault, as oppose to
the
respondent's version
in the report of the Family Counsellor and in his supplementary
affidavit.
[47]
In the report of the
Family Counsellor, the counsellor, with reference to
the three incidents,
stated that the applicant alleges that the respondent “
applies
harsh punishment”.
No
mention of "assault" was made by the applicant.
[48]
The Family
Counsellor, after having dealt with the incidents, concluded as
follows at paragraph
11.1
_
4
of her report:
"j)
From the
investigation
and collateral
contacted, none of the persons has ever witnessed or suspect
the
father of the
abuse of [the minor child] and they have never seen the father
inflicting physical harm or punishment upon [the minor
child].
k)
The undersigned is of
the opinion that the father's punishment upon [the
minor
child]
was
harsh
at
the
time
and
was
inflicted
when
the father was
aggravated by the [minor child's] negative behaviour and disobedience
as well as the physical harm that [the minor
child]
inflicted
on the father.
I)
The father is not
an abusive type of father at all
and it would be in
the best interest of the father, if the father could deal with his
frustrations better and seek assistance from
the Psychologist he is
involved with." (My emphasis)
[49]
All of the aforesaid
begs the question why the applicant agreed to the terms of the Deed
of Settlement in respect of the respondent's
contact rights
if
the applicant
feared that the respondent may harm or assault the minor child. No
explanation in this
regard has been forthcoming
from
the applicant.
[50]
In the circumstances
I have to accept the respondent's version and no proper case has been
out regarding alleged assaults or threats
of assault on the minor
child
.
C:
Insulting, threatening, harassing, verbally abuse or intimidating the
applicant/and or the minor child:
[51]
Mr Coetzer submitted
in his written heads of argument at paragraphs 20.1 and 20.3 thereof
as follows:
"20.1
One must merely peruse the various WhatsApp-messages to arrive at the
conclusion that the Respondent is guilty
of harassing the Applicant
by sending excessive WhatsApp- messages to the Applicant, by making
excessive phone calls and by constantly
threatening the Applicant of
Contempt of Court Proceedings, constantly accusing her falsely of
parental alienation and that he
is coming.
20.3
In addition to this the Applicant mentioned that the Respondent
blames her and he is short tempered. Couples with the fact
that he
terminated the mandate of his attorney, boarded a plane, never
approached the Court one can understand the Applicant's
fears and the
same cannot be dismissed as baseless."
[52]
Although it is true
that the respondent
informed the applicant on 18
August 2023
that he
no
longer has a
South African
attorney of
record
and
that
he will depart to
the
UK on 23
August
2023,
·
he advised the
applicant on 21 July 2023 already in a Whatsapp that
"seeing that
you are living under British jurisdiction I intent on taking our
matter to
a
British
Court".
The
applicant could not have had a
bona
fide
fear
that the respondent will merely pitch up at
her home,
take
Dylan
and
return to South
Africa.
The
applicant
must
surely
have
been
aware
that
the
respondent would not
be able to remove the minor child from the UN with only a copy of
the
minor child's
passport
.
[53]
As correctly pointed
out by the respondent in his answering affidavit, the abovementioned
message made it clear that the respondent’s
intentions of
travelling to
the
UN were to visit
the
minor child and to get the
•
authorities involved
between the applicant and him. This was a clear indication that he
did not have any intention of removing the
minor child from the
applicant's care. He also duly explained why he needed a copy of the
minor child's passport.
[54]
The applicant bemoans
the fact that the respondent
"threatens"
her
with Contempt
of Court
proceedings, that she
will be
arrested when
she
arrives
in South
Africa
etc.
and states
that
she feels intimidated
and harassed thereby. However, the so called “threats" are
all lawful remedies which the applicant
has at his disposal to compel
the applicant to comply with the Divorce Order. There is absolutely
nothing wrong with telling the
applicant that he will use his
remedies should she not comply with the Divorce Order.
To the contrary, it
is clearly indicative thereof that the respondent
is of no intention to
take the law into his own hands.
·
[55]
Already in the report
of the Family Counsellor the Counsellor pointed out and made mention
of the frustration
·
which the respondent
is experiencing. The following was,
inter
alia,
stated
at paragraph 11.11 and 11.20 of the report:
.
"The
father mostly has frustrations related to contact with [the minor
child] that he wants to discuss
with the mother, but
are unable to do so. …The
father
indicated that he has to phone a few times before the mother answers
in order for him to have a video call contact with [the
minor child].
He could see the mother was on the phone, but she ignored his calls.
The father fear that the mother will frustrate
contact the moment the
investigation of the Family Advocate is complete.
...
From the
investigation
it
was evident that there is chronic interference with visitation and
communication."
(My
emphasis)
[56]
I
have carefully
perused the
contents of
the Whatsapp messages
and the number of missed calls between the parties attached to the
founding affidavit. I agree with the contention
by Mr Els that the
said WhatsApp messages do not constitute harassment, illegitimate
threats, abuse
or intimidation. The
clear picture
which I get from the
said messages and calls is that of a caring and desperate father who
desires to have proper contact with his
minor
child,
but
whose
contact
and contact
rights to the minor
child
is
being severely and
ma/a
fide
frustrated by
the applicant. The
applicant is making it as difficult for the respondent as
she can.
[57]
I consequently find
that the applicant's application does not make
out
a
proper case
in respect of
the
second
requirement for
obtaining a final interdict.
[58]
I therefor deem it
unnecessary to
deal
with the third requirement of no other
satisfactory
remedy
available to the
applicant.
[59]
In
the circumstances
paragraphs 2.1 to
2.3
of
the rule
nisi
also
stands to be discharged.
Costs:
[60]
In
the
Law
of
Costs,
AC
Cilliers,
March
2024
SI
49
,
at
paragraph 12.11A
the
following applicable
principles are stated:
"Costs
orders in custody and access and similar cases
The
court is nowadays inclined to regard matters involving children as
different from ordinary civil matters. Accordingly, it appears
that
in applications for variation of custody orders (and similar cases),
the usual rule
(or,
at any rate,
the
tendency)
is
to make no order
as
to costs
....
On
the other hand, it has been held that in custody and access cases
there is no general
"rule"
that no order
as to costs should be made. This is well illustrated by a custody
matter
in
which the
English courts had also been involved. (
KLVC
v SDI and Another
[2015]
1 All SA 532
(SCA),
[2015] JOL 32761
(SCA)) The first respondent, an
unmarried father, had brought a successful application to the High
Court, which held, amongst other
things, that before
removing
their child from the
Republic,
the
appellant
ought
to
have
obtained the first respondent's perm1ss1on, or, otherwise, an
appropriate court order. In an appeal to the Supreme Court of
Appeal,
that court said the following in paragraph 39 of its judgment:
'It
is so that generally in cases involving children, for example those
concerning
rights
of
access,
courts
frequently
make
an
order
that parties must pay
their own costs because they are considered to be acting
in
the
best
interests
of
the
children
as
envisaged
by section 28 of the
Constitution.
I
have however
taken
into
consideration
the fact
that
in
'
the
present
proceedings
the
application
in
the
court a
quo
was
brought at the behest of the English court and that the first
respondent
was
put to the expense
of
bringing
the proceedings
in order
to
assist the English
court
in resolving
a difficult
issue
relating to
custody rights
pertaining to
the
child. Essentially this case revolved
_
around
the best interests of S to have access to her biological father.
The appellant adopted a
deliberately difficult and obstructive approach throughout this
litigation. In addition, she introduced
scurrilous and vitriolic
matters about the first respondent which were completely irrelevant
to the issue for determination
.
Undeterred by
the finding of the court a
quo,
she has
persisted in the present appeal with her frivolous
·
claims
with the sole purpose of denying the appellant his parental rights to
S. Undoubtedly her conduct deserves serious censure
from this Court
as it borders on abuse of the court process. In the circumstances, it
is appropriate that the appellant should
pay the costs of appeal.""'
[61]
In
the present
matter both parties
are
seeking
costs
against
each other on a punitive scale of attorney and client.
[62]
In
casu
the
application entails a combination of relief, being a prohibitory
interdict in
respect of
both the
applicant and
the minor child and
the variation/suspension of the respondent's contact rights.
[63]
It is trite that the
issue of costs falls within the discretion of
the
Court
.
[64]
In exercising my
discretion my starting point is that since this application
mainly deals with
the contact rights of
the
respondent
in respect of the minor child, it should, in general be approached on
the basis that each party is to pay his/her own
costs. However, there
are circumstances in the present matter which necessitates that I
have to reconsider the aforesaid general
rule
.
I do not
intend to deal with
·
all
those circumstances, but need to mention some of them.
1.
Although I am not
called upon to re-determine urgency, I have the advantage of having
"the full picture,, of the relevant facts
and circumstances
before me, which the Judge
who
issued
the
rule
nisi
did
not have. It is
now evident that not
only was there no basis to have issued this application on an urgent
ex parte
basis,
the
applicant did so realizing full well that this. Court does not have
the jurisdiction to have granted paragraphs 2.4 to 2.6 of
the rule
nisi.
The
applicant even acknowledged same in her own papers and the arguments
presented on her behalf, but despite that the applicant
persisted
claiming the said relief.
2.
During argument stage
the applicant all of a sudden sought relief
in
terms of the
Interim Order that had been granted in the UK in the stead of
paragraphs 2.4 to 2.6 of the rule
nisi,
and again,
despite the Court's lack of jurisdiction. It constituted completely
new relief.
3.
The manner in which
the relief sought was couched ass though
it was
a declaratory order,
constituted a
willful
abuse of process
.
4.
The
fact that
the applicant
persisted with the confirmation of paragraphs 2.4
to 2.6
of the rule
nisi
even after
she
obtained
the Interim Order in the UK, hence at a stage when such confirmation
was no
longer necessary. It
also constituted an
abuse of process.
5.
The totality of the
application was unfounded and without any merit to the extent that it
is to be considered to be frivolous and
vexatious.
6.
The fact that it is
evident that the applicant is frustrating the respondent's rights of
contact with the minor child in an intentional,
abusive and ma/a
fide
manner.
[65]
I am consequently
of the view that the
applicant is to be ordered to pay the costs of the application.
[66]
I have considered the
respondent's request that such costs should be on a punitive scale.
However, the fact that I intend ordering
the applicant to pay the
costs of the application, is already to be considered punitive
in
nature,
considering the general rule in these type of matters
.
rm
therefore satisfied
that an order on party and party scale would
·
be
appropriate
.
[67]
With regard to the
wasted costs occasioned by the postponement of the application on 2
November 2023, I deem those costs to be costs
in the application.
Order:
[68]
I consequently make
the following order:
1.
The
rule
nisi
issued
on 23 August 2023 is discharged with costs, which costs include the
wasted costs occasioned by the postponement of 2 November
2023.
C.
VAN ZYL, J
On
behalf of the applicant:
Adv.
JC Coetzer
Instructed
by
:
Stander
& Associates
BLOEMFONTEIN
chantelle@stanprok.co.za
On
behalf of the respondent:
Adv.
J Els
Instructed
by
:
Mclntyre
Van der Post
BLOEMFONTEIN
(Ref
:
BCK143
.
LHW
CATO/jb)
joanne@mcintyre.co.za