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[2024] ZAMPMBHC 61
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M.P v Mosadi and Another (4349/24) [2024] ZAMPMBHC 61 (4 September 2024)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA DIVISION,
MBOMBELA
CASE
NO:4349/24
(1)
REPORTABLE: YES / NO
(2) OF
INTEREST TO OTHER JUDGES: YES / NO
(3)
REVISED: YES / NO
Date:4 September 2024
Signature
In
the matter between:
M[...]
P[...]
APPLICANT
and
MAGISTRATE
MOSADI
FIRST RESPONDENT
P[...]
M[...] H[...]
SECOND
RESPONDENT
JUDGMENT
Mazibuko
AJ
Introduction
1.
The applicant, Ms M[...] P[...]
(‘Ms P[...]’
),
seeks relief on an urgent basis in terms of Rule 6(12) of the Uniform
Rules of Court for an order that:
a) A
rule nisi
be issued calling upon the respondents to show cause
on a date to be determined by the court as to why a final order,
setting aside
the
ex parte
order, issued by the first
respondent, the learned Magistrate Mosadi of Mbombela Children’s
Court on 2 August 2024 under
case number 14/1/4-118/2023, should not
be granted.
b) The
minor children [‘
W.H. and M.H’
] shall primarily
reside with her, and she be their primary caregiver, making decisions
about all aspects of their lives after considering
their views.
c)
Paragraph b above to serve as an interdict with immediate effect
pending the return date.
d) The
Family Advocate’s office be directed to conduct an
investigation and compile a written report with
their findings and
recommendations on an urgent basis with regard to the best interest
of the minor children in respect of their
care and contact.
2. The application is
opposed by Mr H[...], raising points
in limine
being the
urgency of the matter and incomplete proceedings in the Magistrates
Court, non-compliance with the Practice Directives
of this court,
abuse of Court process and the availability of alternative avenues
and relief.
Common cause facts in
brief
3.
It is common cause between the parties that Ms P[...] and Mr H[...]
are not married to each
other. They have been periodically staying
together since 2019 and have two minor children, [W.H., born in 2020
and M.H., born
in 2022]. During their stay together, they would be
with Mr H[...]’s family, living with his mother, father and the
rest
of the family. At some stage, they stayed with Mr H[...]’s
aunt. At the time Ms P[...] left with the children for the Western
Cape province on 25 July 2024, they were staying on their own
together with their children in Mbombela. On 25 July 2024, Ms P[...]
left with the children. At about 6 PM on the same day, she sent Mr
H[...] a message informing him that she and the children were
safe
and at the Cape and that she left due to the toxic environment
unhealthy for them, especially for the children.
4.
On 26 July 2024, Mr H[...] approached the Children’s Court. He
was granted
an
ex parte
order directing that the minor
children were to reside with him as a primary caregiver until the
children's best interest has been
determined, with Ms P[...] having
supervised physical contact with the minor children at the house of
Mr H[...] by prior arrangement
with him. In summation, the
ex
parte
order read.
5.
During the parties’ stay together, Mr H[...] verbally abused Ms
P[...]
by calling her stupid and other ugly and derogatory names. He
physically abused her by slapping her whilst she was pregnant with
W.H. He would threaten with suicide and that he would kill all of
them.
6.
Mr H[...]’s mother physically abused Ms P[...] by throwing her
with a cup.
In November 2023, she also threatened Ms P[...]’s
erstwhile employer with death when they stayed with Ms P[...] and the
minor
children. It is also not in dispute that Mr H[...]’s
brother, Mr C[...] v[...] d[...] M[...] (‘
Mr v[...] d[...]
M[...]’
), sent a voice note to Ms P[...] demeaning her by
calling her ‘
a little girl
’ and other ugly and
derogatory names as well as threatening her that he would come to the
Cape and shoot them all dead.
7. Ms P[...] removed the
children from Mbombela without a Court order or Family Advocate’s
report. On 5 August 2024,
the Court issued a subpoena directing
the Applicant to appear on 16 August 2024 regarding the primary care
of the minor children.
Ms P[...] did not appear on the said day.
8.
On 23 August 2024, whilst W.H. and M.H. were at the creche in
Hermanus, Western Cape
province, Mr H[...], his father and his
brother, Mr v[...] d[...] M[...], came to the creche fetched the
minor children and left
for Mbombela with them without the knowledge
of Ms P[...].
Points
in limine
9.
I will first deal with the points
in limine.
The
non-compliance with practice directives will be considered
together with the one relating to the lack of urgency of the
application as raised.
(i)
Non-compliance with practice directives of court and urgency
10. Mr H[...], through
his counsel, Mr Fourie, raised a point
in limine
that Ms
P[...]’s application ought to be dismissed with costs
alternatively struck from the roll due to the non-compliance
by her
with the Practice Directives of this Court. Further, the urgency is
self-created as Ms P[...] failed to appear at the Children’s
Court as subpoenaed by the learned magistrate.
11. The provisions of
Rule 6(12) empower the court to, on application, dispense with the
time periods, forms and services prescribed
in the rules. Considering
the fact that this matter involves minor children aged two years and
four years old, respectively. Given
that the best interest of minor
children is of paramount importance and must always be considered, I
consider the matter urgent,
and the court rules and this court’s
practice directives are justified to be dispensed with.
12. Regarding the fact
that the urgency was self-created. The court accepts that had Ms
P[...] appeared before the Children’s
Court as ordered, perhaps
the matter would have been dealt with differently. However, I find it
crucial also to consider the circumstances
under which the
ex
parte
order was obtained and granted. I take into account the
facts presented before the learned magistrate that could have
persuaded
her to grant the order as she did.
13. On reading the
ex
parte
order granted by the learned magistrate and her
considerations, I note that the said order reads: ‘
Whereas
the biological father of the children fears for the safety of the
children and is of the view that the mother of the children
is not
stable enough to take care of the children on her own.’
14.
Mr H[...] did not insist on this issue, nor did he substantiate these
serious allegations in his answering
affidavit, and his counsel did
not make any submissions that Ms P[...] was not stable enough to take
care of the children on her
own. In my view, it will not be
unreasonable for this court to accept that this issue of Ms P[...]’s
inability is one of
the considerations that persuaded the learned
magistrate to grant the
ex parte
order as she did. In my view,
had all the facts been laid before her and persuaded differently, she
might have considered the matter
differently and not granted the
impugned order.
15.
It is trite that the applicant needs to be open and truthful with all
reasonable and relevant facts
known to them when they approach the
court for relief, such as one granted in favour of Mr H[...] by the
learned magistrate. The
reasoning is that the court hearing such an
application only knows and considers what the applicant avers before
them.
16. In my view, under the
circumstances, nothing precludes this court from reviewing the
learned magistrate’s order and setting
it aside since, in
granting the impugned order, the learned magistrate relied on grounds
raised by Mr H[...], which grounds are
no more relied on by Mr H[...]
in his opposition of Ms P[...]’s application. In his answering
affidavit, Mr H[...] made no
mention that he approached the
Children’s court, relied on its order and travelled to Hermanus
to fetch the children because
Ms P[...] was not stable enough to take
care of the minor children on her own.
17. The order goes on to
state that Ms P[...] has to exercise her physical contact with the
children under supervision in the house
of Mr H[...]. With the
historical background as ventilated by both parties in their
affidavits, which serve as evidence before
this court, I am persuaded
to accept that had the learned judge presented with the same
evidence; she would not have granted the
order as she did. It is not
contested that Ms P[...] suffered forms of verbal and physical abuse,
among others, in the hands of
Mr H[...] and his family. Now, for a
learned magistrate to order that Ms P[...] exercise her contact
rights with the minor children
in Mr H[...]’s house in his
presence can never be regarded as reasonable and competent.
(ii)
Abuse of court process
18. It was argued on
behalf of Mr H[...] that Ms P[...] is abusing the court process. No
cogent evidence was shown to the court
on what basis such contention
was made. I have already found that only some relevant facts were
placed before the learned magistrate
when Mr H[...] was granted the
impugned
ex parte
order. Consequently, this point
in limine
stands to fail.
(iii)
Relief sought when an alternative avenue is available, and there is
an incomplete judicial process
19. It was argued that Ms
P[...] could only have proceeded in respect of Rule 55 of the
Magistrates’ Court Rules to anticipate
the rule and the
ex
parte
order granted to have same reviewed or set aside. The
high court remains an upper guardian of the minor children.
Therefore,
approaching the high court where the interests of the
children are in question cannot be viewed as an abuse of the court
process.
I should not be misconstrued, though, as promoting the
disregard of the Children’s court order by Ms P[...]. Every
court
order remains binding until it is set aside.
20. It was submitted on
behalf of Ms P[...] that an interdict order be granted. I could not
find any convincing evidence to grant
such an order.
21. Regarding costs, Ms
P[...] did not ask that costs be awarded in her favour, even when it
was raised during the hearing. I therefore
find no reason why I
should award her costs.
22. For these reasons
mentioned above, the application must succeed.
23. As a result, the
following order is made,
Order:
1. The
application is heard as urgent in accordance with Rule 6(12) of the
Uniform Rules of this Court, and the applicant’s
failure to
comply with the rules relating to forms, time periods and service and
this court’s practice directives is hereby
condoned.
2. The points
in
limine
are dismissed.
3. The
ex parte
order and other related ancillary orders granted by Magistrate Mosadi
of the Mbombela Children’s Court on 2 August 2024 and
subsequent thereafter under case number 14/1/4 – 118/2023 are
hereby set aside and replaced with the following:
a) The
respondent will, within 72 (seventy-two) hours of this order, return
the children to the applicant.
b) The
respondent is called upon to show cause in the above Honourable court
on the date to be arranged by the
parties in consultation with the
Registrar as to why a final order setting aside the
ex parte
order issued by the first respondent, the learned Magistrate Mosadi
of Mbombela Children’s Court on 2 August 2024 under case
number
14/1/4-118/2023, should not be granted.
c)
The minor children [‘
W.H. and M.H’
] shall
primarily reside with the applicant, and she will be their primary
caregiver, making decisions about aspects of their lives
pending the
return date mentioned in paragraph b above.
d) The
Family Advocate’s office is directed to conduct further
investigation and compile a written report
with their findings and
recommendations on an urgent basis concerning the best interest of
the minor children regarding their care
and contact.
e) No
order as to costs.
N. Mazibuko
Acting Judge Of The
High Court
Mpumalanga Division,
Mbombela
Representation:
Counsel
for the Applicant:
Mr
A.A. Milazi
Attorneys
for the Applicant:
T.K.
Segodi
Attorneys
Counsel
for the First Respondent:
No
appearance
Counsel
for the Second Respondent:
Mr
H.F.Fourie
Attorneys
for the Second Respondent:
Michael
van Rensburg Attorneys
Heard:
3
September 2024
Date
of Judgment:
4
September 2024