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[2013] ZAWCHC 50
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Corr v Corr (2822/12) [2013] ZAWCHC 50; 2014 (2) SA 138 (WCC) (19 March 2013)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT, CAPE TOWN)
Case no: 2822/12
In
the matter between:
JONATHAN CORR
...........................................................................
Applicant
and
DEIDRE CORR
.............................................................................
Respondent
Heard:
22 January 2013
JUDGMENT
DELIVERED: 19MARCH 2013
savage AJ:
Introduction
[1] This matter came before this Court on the extended return date of
a rule
nisi
granted on 17 February 2012 by Bozalek J. The
interim order required the respondent to furnish reasons why she
should not be held
to be in contempt of court and sanctioned either
by way of imprisonment or by way of some other appropriate sanction;
why she should
not be directed to return the three minor children
born of the marriage between her and the applicant to Somerset West;
and why
she should not be directed to pay the costs of the
application on the scale between attorney and client.
[2] On the return date, the applicant sought a final order holding
the respondent to be in contempt of court, with no order of
committal; a finding that the respondent removed the three minor
children unlawfully from the Republic of South Africa; an order
that
subject to any finding and order of the High Court of Zimbabwe
hearing the pending application in terms of the Hague Convention
on
the Civil Aspects of International Child Abduction in regard to the
minor children, the minor children should be returned to
the Western
Cape in the Republic of South Africa; and costs on an attorney and
client scale. On 22 January 2013 a final order was
granted in these
terms. These are the reasons for that order.
Background
[3] The background to the matter is as follows. The applicant and
respondent were divorced by order of this Court on 29 April 2011.
The
decree of divorce incorporated the terms of a consent paper to which
a parenting plan was annexed regulating the parties’
shared
parental responsibilities and rights pertaining to their three minor
children, born in 2001, 2005 and 2006.
[4] In terms of clauses 1.2.1 and 1.2.2 of the parenting plan, the
parties are co-guardians of the minor children and are jointly
responsible for the children's care. Clause 1.3 requires the parties
to –
‘…
give due consideration to the
views of the other parent when making decisions that may impact on
that parent’s exercise of
parental responsibilities and rights.
In respect of the following issues, joint decisions will be required:
1.3.1 the children's enrolment in any creche, preschool, school,
after-care, extra tuition, or tertiary institution;
1.3.2 the children's choice of subjects and enrolment in any
extramural and sporting activities;
1.3.3 any elective medical treatment that may be required by the
children, which are not include their day-to-day medical care or
emergency treatment, but which shall include them receiving any
therapeutic assistance;
1.3.4 any significant change in the rearing of the children with
regard to their religious beliefs and cultural or traditional values;
1.3.5 any decision to change the children's residence in either
party's home from the Cape Peninsula and immediate surrounds or to
remove the children from the aforesaid area, other than for a holiday
period of short duration;
1.3.6 any decision which is likely to change significantly, or to
have a significant adverse effect on, the co-holders exercise of
parental responsibilities and rights in respect of the children;
[5] Clause 1.4 provides that the applicant –
‘…
shall have contact with the
children as follows:
1.4.1. every alternate weekend by collecting the children from
school on the Friday and returning them to school on the Monday,
provided that should such weekend be preceded or succeeded by a
public holiday, the public holiday shall then be deemed to be
incorporated
in the weekend in question;
1.4.2. every alternate public holiday which is not attached to a
weekend as envisaged in paragraph 1.4.1 above;
1.4.3. every Wednesday when [applicant] does not have a weekend
contact with the children, by collecting them from school on the
Wednesday and returning them to school on the Thursday
…
[6] The pertinent remaining provisions of the parenting plan provide
that –
…
1.5. Both parties shall, upon receipt
they asked, ensure that the other party receives copies of the
children's school reports and
any correspondence or documentation
received by them which relates to the children's progress at school
and/or to any problems
that they may be experiencing and provide the
other party with copies of any reports that they may receive;
1.6. Should either party not to be able to care for the children
during their respective contact periods, such party shall first
approach the other party to ascertain whether they are available to
care for the children prior to a third party being appointed
to do
so.
[7] On 4 January 2012 the applicant e-mailed the respondent
indicating that she may not remove the children from South Africa
without his consent and that if she did so, she risked being stopped
at the airport, removed from the flight and that she could
be charged
and detained.The respondent received the email but did not reply to
it and on 5 January 2012 left South Africa for Harare,
Zimbabwe with
the parties’ three minor children on a one-way ticket.
[8] In her answering affidavit, the respondent stated that the
applicant knew in advance of the children going on holiday to
Zimbabwe
‘
as I informed him about it when I asked him to
furnish me with their passports. I cannot recall the exact date, but
it was during
telephonic conversation which we had during November
2011
’. The respondent stated that she had been discussing
the possibility of moving to Zimbabwe to live there permanently with
her new partner but wanted the children to visit the country first.
It was not in dispute that this had not been discussed with
the
applicant. In September 2011 the respondent discovered that she was
pregnant with her new partner's child and realised that
‘
I
would have to resolve the question of relocating with the children as
soon as possible
.’ She stated that she intended to use the
holiday to make enquiries about the availability of adequate
schooling for the
children.
[9] The applicant established in January 2012 from the headmaster of
Rhenish Primary, where the children attended school in South
Africa,
that the respondent had in October 2011 indicated an intention to
enrol the children at St John's Preparatory School in
Harare. The
headmaster of St John's confirmed with the applicant that Rhenish
Primary had been approached as certain pre-admission
tests were
required by St John’s. These approaches were made without the
knowledge of the applicant.
[10] Following receipt of this information, the applicant approached
the Department of Home Affairs with the request that the children’s
passports be blocked for any future outbound travel and, through his
attorneys, sought the return of the children to South Africa
by the
respondent. The respondent indicated that the children were due to
return to Somerset West on 14 January 2012 but that she
refused to
return to South Africa without an undertaking from the applicant that
he would not ‘proceed to issue a warrant’
and therefore
place her at risk of arrest on her arrival. The respondent proposed
that the ‘
matter concerning (her)… alleged emigration
…be referred to the facilitator as per the consent paper’
.
The applicant denied having consented to the removal of the children
from South Africa and attached his email of 4 January 2012
to his
reply to the respondent. He sought an assurance from the respondent
that the children would commence schooling on 16 January
2012 in
South Africa, having missed the first week of school and provided the
respondent with a copy of his e-mail to the Department
of Home
Affairs indicating that he had not requested a warrant of arrest to
be issued against the respondent.
[11] On 16 January 2012 through her attorneys the respondent denied
that she had breached the court order in removing the children
from
South Africa and indicated that she had intended to return to South
Africa after her holiday but that the applicant had '
ordered Home
Affairs to block the children's passports. In lieu hereof, our client
will not be coming back to South Africa until
such time when she has
obtained, in writing, correspondence from Home Affairs stating that
the children's passports have not been
blocked pursuant to your
client’s unlawful instructions and that there are absolutely no
pending actions contemplated against
her’.
In addition, the
respondent demanded a letter be sent to the headmaster of St John’s
in Harare confirming that no court order
or warrant of arrest had
been issued against her.
[12] On 17 January 2012 the applicant informed the respondent that
‘
you are free to contact the Department of Home Affairs who
will confirm that the children's passports have not been blocked
’.
The following day the respondent’s attorneys replied that their
instructions were that ‘…
our client insists that your
client provides us with written confirmation that the statements made
to the Headmaster of St John's
were not true
’. On 23
January 2012, the respondent's South African attorneys informed the
applicant’s attorneys that they were instructed
not to act as
correspondent for the respondent’s attorney in Harare in the
matter regarding the minor children.
[13] The applicant contacted the South African Police Services who in
turn made contact with the respondent via e-mail. In a letter
dated
20 January 2012 addressed to the respondent by the SAPS it was
confirmed that no criminal charges had been laid against her
and that
no warrant of arrest had been issued for her arrest. The respondent
was informed that should she not return with the children
she would
be in contravention of the South African
Children's Act 38 of 2005
and ‘
a court order (final order of divorce)
’.
[14] On 22 January 2012 a further email was sent to the respondent by
SAPS. In this reply, the respondent claimed there to be a
dispute
between the parties as to the interpretation of the court order and
denied deliberately leaving South Africa with the children
intending
to remove them permanently from the country. She stated that the
involvement of the police in a purely domestic matter
had led her to
conclude that ‘
she and the children will indeed be subjected
to further intimidation and threats upon their return to South
Africa’
.
[15] On 26 January 2012 the applicant replied that he had become
aware that the respondent had arranged with Biddulphs to remove
her
household furniture to Zimbabwe on the 25 January 2012, having
obtained a quotation to do so on 6 December 2011. He recorded
that he
had had no contact with or access to his children since the 4 January
2012 and was unaware as to where in Zimbabwe the
children were as no
contact numbers or address had been provided. The same day, the
respondent’s attorney replied stating
that her return to South
Africa had been made impossible by the ‘
irrational’
behaviour of the applicant
.
The applicant thereafter laid
charges against the respondent in terms the
Children's Act 38 of
2005
.
[16] On 31 January 2012 the respondent enrolled the parties’
oldest son into a private school in Harare ‘
when I was
convinced that all attempts by my attorneys to get the necessary
assurances from applicant that I could (return)...without
threat of
the loss of my personal freedom or other legal action, had failed
’.
By this time the respondent had resigned from her job ‘
as I
had already decided that I was not going to return to South Africa
’.
[17] During the course of 2012 the respondent enrolled all three
minor children in weekly boarding school in Zimbabwe, without
the
knowledge or consent of the applicant. The children currently remain
in Zimbabwe. Proceedings brought under the Hague Convention
on the
Civil Aspects of International Child Abduction remain pending in
Zimbabwe.
Jurisdiction
[18] Ms Pratt contended for the respondent that this Court lacks
jurisdiction to hold the respondent in contempt of the order of
this
Court made on 29 April 2011 given that she resides in Zimbabwe and is
no longer domiciled in South Africa, having left South
Africa on 5
January 2012 for Zimbabwe; and that no court, as a result, has
jurisdiction to consider this application.
[19] Section 19(1) of the Supreme Court Act 59 of 1959 provides that
–
‘
(a) A provincial or local division shall
have jurisdiction over all persons residing or being in and in
relation to all causes arising
and all offences triable within its
area of jurisdiction
…’
[20] The crucial time for determining the jurisdiction of a court to
entertain an action is at the commencement of the action.
(
Thermo
Radiant Oven Sales Ltd v Nelspruit Bakeries
1969 (2) SA 295
(A)
at 310C).
[21] This Court has the power to adjudicate upon, determine and
dispose of a matter within its territory with due regard to the
nature of the proceedings or the nature of the relief claimed or, in
some cases both, and whether the Court is able to give an
effective
judgment (
Gallo Africa v Sting Music
2010 (6) SA 329
(A) at
331I, 332A-B and 3333D-E). The Court’s
ratio jurisdictionis
may be founded on domicile, contract, delict or
rationereisitae
(
VenetaMineraria Spa v Carolina Collieries
(Pty) Ltd
1987 (4)
SA 883
(A) at 893E-894B). Although effectiveness lies at the root of
jurisdiction it is not necessarily the criteria for its existence
(
EwingMcDonald & Co Ltd v M & M Products
1991(1) SA
252 (A) at 259D-260E).
[22] Jurisdiction once established
-
‘…
continues to exist to the end of
the action even though the ground upon which the jurisdiction was
established ceases to exist …
If an action is instituted
against a defendant on the ground of residence and he changes his
residence during the course of the
trial the Court similarly is bound
to give a judgment which may not be effective (see Becker v Foster
1913 CPD 962).
This principle is based on practical considerations
because the due administration of justice might be seriously hampered
if the
rule were otherwise. This may well be a case where logic
should give way to expediency
.’(
Thermo
Radiant Oven Sales Ltd supra
at 310
C-H).
[23] Where a court has jurisdiction at the commencement of
proceedings, a successful party is entitled to an order to the extent
to which it can be made effective, even though it may not be possible
to do so immediately.
Cats v Cats
1959 (4) SA 375
(C) per
Rosenow J at 381A–D -
‘
It seems to me also that, in so far as
such an outcome can be prevented, an unsuccessful party should not be
allowed to frustrate
proceedings, in which he himself participated,
by the simple process of removing himself from the effective
jurisdiction of the
Court’.
[24] Contempt proceedings are not new proceedings, but merely a
continuation of proceedings previously instituted (
James v Lunden
1918 WLD 88
quoted with approval by Heher JA in
Els v Wideman
2011 (2) SA 126
(SCA) at 134A-C). Consequently, it follows that this
Court has jurisdiction in accordance with the provisions of section
19(1)(a)
in respect of this matter as a cause arising within the
jurisdiction of the Court.
[25] With regards to the effectiveness of a judgment made in this
matter, it is material that the applicant does not pursue an
order
for the arrest or committal of the respondent but rather an order of
contempt without sanction; an order that the removal
of the children
was unlawful; and an order that subject to the decision of the
Zimbabwean Court in proceedings instituted under
the Hague
Convention, the children should be returned to South Africa. The
nature of the relief sought is therefore in essence
declaratory.
[26] This Court may grant declaratory relief in
accordance with the provisions of s
ection 19(1)(a)(iii) which
provides that it has the power -
…
(iii) in its discretion, and at the
instance of any interested person, to enquire into and determine any
existing, future or contingent
right or obligation, notwithstanding
that such person cannot claim any relief consequential upon the
determination.’
[27] In
Di Bona v Di Bona
1993 (2) SA 682
(C) at 695A-D
Rose-Innes J held that the Court lacked jurisdiction to entertain an
action for the committal of the respondent to
prison on the basis
that –
‘
In my opinion, the doctrine of the
continuance of the court's jurisdiction, once jurisdiction is
established at the commencement
of an action or other proceeding,
does not apply to an application for arrest or committal for contempt
where the respondent has
left South Africa
.’
[28] The case of
Di Bona
is distinguishable from the current
matter in that the applicant does not persist with an order for the
arrest or committal of the
respondent in this matter. I accept that
an order of arrest or committal may not be capable of enforcement
outside the territorial
boundaries of South Africa and that if the
applicant did persist in seeking such an order, the
ratio
in
Di Bona
would find application. I am persuaded for these
reasons that this Court retains jurisdiction to determine the current
application
for contempt.
[29] Rose-Innes J concluded in
Di Bona
at 637 that given that a
custody and access order is a variable order and not
a
final and conclusive judgment or order, such matters are not
res
iudicata
and will never
be enforced by the courts of any other country. As a result, the
court found that it lacked jurisdiction to make
an effective order in
respect of children who were no longer in South Africa. I am
persuaded that the conclusion of the learned
judge in this regard
does not however preventthis Court from making an order in the
current matter relating to the unlawfulness
of the removal of the
minor children and their return, subject to the determination of the
foreign court in the Hague Convention
proceedings. Such an order is
declaratoryin its ambit, given that the children are no longer within
South Africa.
[30] In considering the effectiveness of such an order, it seems to
me that the decisions in
Cats
(
supra
) and the
conclusion of Balcombe LJ in
Re D (a minor)
[1992] 1 All ER
892
are instructive. In the latter case the English court found that
it was empowered to issue an order for the return of a child to
its
jurisdiction notwithstanding the fact that the child was not in its
jurisdiction. At 895 the judge concluded that it was not
pointless to
make such order given that it would assist the father in foreign
proceedings for the return of the child and that
the court would not
refuse to assist a parent where the other had acted in defiance of an
undertaking voluntarily given to the
court.
[31] The grant by this Court of an order which is declaratory in its
ambit and effect is not a pointless exercise in the circumstances
of
the current matter. This is so for the reason that the order may be
placed before the foreign court by the applicant in the
pending Hague
Convention proceedings so as to indicate the attitude of this Court
to the conduct of the respondent. In addition,
the applicant remains
entitled on the basis of the finding of contempt to approach this
Court at any time when the respondent returns
to the jurisdiction of
the Court for an appropriate sanction to be imposed upon the
respondent.
[32] This Court has jurisdiction to enforce its orders as a
consequence of the binding nature of such orders in terms of section
165(5) of the Constitution. Where a personhas breached an order of
this Court and yet remains outside the effective territorial
jurisdiction of the Court,this does not lead to the inevitable
conclusion that this Court is incapable of declaring such person
to
be in contempt of court. If this were so, this would have the result
that the judicial authority of our courts, the rule of
law and the
administration of justice were unjustifiably undermined in
circumstances where litigants remove themselves intentionally
from
South Africa so as to avoid the consequences of an order of Court.
For the reasons stated above, it is only the imposition
of a sanction
as a consequence of such contempt that would be ineffective and
accordingly it would be inappropriate to impose any
such sanction at
this time given the circumstances of this matter.
[33] Even if I am wrong and this Court’s jurisdiction does not
exist on the basis of the doctrine of continuance of jurisdiction,
I
am not persuaded that the respondent has acquired Zimbabwean domicile
for the reasons set out below.
[34] A person must at all times be in possession of a
domicile(Section 3(1) of the Domicile Act 3 of 1992;
Sukovs v Van
der Walt
[1998] 3 All SA 664
(O) at 673). In terms of section
3(3) of the Zimbabwean Immigration Act of 1979, a person is not
domiciled in Zimbabwe ‘…
unless he has lawfully
ordinarily resided therein for a continuous period of two years
…’.
The respondent has not been resident in Zimbabwe for a continuous
period of two years and accordingly, under Zimbabwean
law, is not
domiciled in Zimbabwe. While this Court will not determine the
acquisition or loss of domicile of the respondent’s
South
African domicile in accordance with the law of a foreign country, the
fact that the respondent has not acquired a Zimbabwean
domicile is a
material fact to be considered in determining whether she remains
domiciled in South Africa. For current purposes
it is clear that this
Court’s jurisdiction is therefore not ousted by virtue of the
respondent’s domicile given that
in terms of the provisions of
section 3(3) of the Zimbabwean Immigration Act the respondent has not
acquired Zimbabwean domicile.
Contempt
of court
[35] It is a
crime to unlawfully and intentionally
disobey a court order, thereby violating the dignity, repute or
authority of the court (
S v Beyers
1968(3)
SA 70(A) per Steyn CJ).
Contempt proceedings are concerned
with the unlawful and intentional refusal or failure to comply with
the order of court. Although
the object of such proceedings is the
imposition of a penalty in order to vindicate the courts honour, a
declaration of contempt
in civil matters may be made and is
appropriate in certain circumstances. The sanction for contempt
committed may be imposed immediately
or in due course where the
respondent is not currently within the territorial jurisdiction of
the Court. In
Fakie NO v CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006 (4) SA
326
(SCA) at 333 and 344, Cameron JA emphasised that what is
contemplated is not a mere disregard of the court's order but the
deliberate
and intentional violation of the courts dignity, repute or
authority.
[36] A private litigant who has obtained a court
order requiring an opponent to do or not do something (
ad
factum praestandum
) is entitled to
approach the court again, in the event of non-compliance, for a
further order declaring the non-compliant party
in contempt of court,
and imposing a sanction.
Fakie NO
(supra)
at para 7.
This is a civil
proceeding that invokes a criminal sanction or its threat.
[37] The applicant must show the requisites of contempt, namely the
existence of the order, service or notice; non-compliance;
and
wilfulness or
mala fides
beyond reasonable doubt. However,
once the applicant has proved the order, service or notice and
non-compliance, the respondent
bears an evidential burden in relation
to wilfulness and
mala fides
and if evidence is not advanced
establishing reasonable doubt as to whether non-compliance was wilful
or
mala fide
, contempt will have been established beyond a
reasonable doubt.
‘…
(W)ilfulness and
mala
fides
on the
part of the respondent will normally be inferred and the onus will be
on the respondent to rebut this inference
.
’(
Max
PollakVinderine v Menell Jack Hyman Rosenberg
1996 (3) SA 355
(A)
at
367I-J
per
Corbett CJ).
[38] At the hearing of the matter Ms Pratt conceded for the
respondent that the removal and retention of the children in Zimbabwe
by the respondent is unlawful. This was in spite of the respondent
having denied the breach or an intention to breach the order
in her
answering papers. It is clear that the unlawful conduct of the
respondent exists in her infringement of legally protected
rights and
interests determined by the Court order.
[39] Any argument for the respondent that the order has not been
breached in this country but in Zimbabwe where the refusal to
return
the children took place, cannot be sustained. The Australian case of
Ibbotson v Wincen
[1994] FamCA 103
is instructive in this
regard. In that matter at para 28 the Family Court of Australia
concluded that the obligation was on a husband
to return a child to
the wife in Australia and that the failure to do so was a breach of
the court’s order and that this
breach occurred within the
territorial limits of the Court. Quoting the trial judge at para 32
the court noted that –
‘…
It matters not in my view where
the child was taken. If it can be established the respondent was
responsible for depriving the applicant
of custody and that such
conduct constituted a flagrant breach of the Court order, it is
irrelevant whether the child was held
within or outside the
jurisdiction of this court.’
[40] Nothing has been placed before this court to show that the
respondent did not act wilfully in refusing to comply with the
Court
order.The respondent was informed by the applicant that he had not
consented to the removal of the children from South Africaand
she was
informed by the applicant and the SAPS that her conduct was in breach
of the Court order. I am satisfied that the respondent
possessed the
knowledge that her retention of the children in Zimbabwe was in
breach of the order of this Court and yet she nevertheless
wilfully
retained the children in Zimbabwe. Her defence turns on her
fides
in claiming to be unable to return the children to South Africa in
that she and the children would be subjected to ‘further
intimidation and threats’ given the applicant’s
‘irrational’ behaviour.
[41] In determining whether the respondent’s conduct was
mala
fide
the facts bear testimony to a wilful and orchestrated plan
on the part of the respondent, pregnant with her partner’s
child,
to remove the children from South Africa and retain them there
in spite of the absence of the consent of the applicant and in breach
of the Court order. This is illustrated by the following material
facts:
42.1. following her pregnancy in September 2011
the respondent stated that she realised that she ‘…would
have to resolve
the question of relocating with the children as soon
as possible’ but failed to raise the matter with the applicant;
42.2. the respondent had in October 2011 made
contact with a school in Harare seeking the admission of the
children, following which
pre-admission tests for the oldest child
were arranged with Rhenish Primary, allwithout the knowledge of the
applicant;
42.3. the respondent obtained a quotation for the
removal of household contents to Harare on 6 December 2011;
42.4. the respondent removed the children from
South Africa to Zimbabwe on 5 January 2012 on one-way tickets the day
after the applicant
had informed the respondent that he did not
consent to the removal of the children from the country;
42.5. between 14 January 2012 and 22 January 2012
the respondent indicated a refusal to return to South Africa with the
children
in the absence of certain self-created conditions being met,
namely the provision of an undertaking from the applicant that he
would not issue a warrant of arrest against her, a letter from the
Department of Home Affairs confirming that their passports had
not
been blocked and a letter to St John’s school in Harare stating
no warrant or court order had been issued against her.
This when it
was clear that the terms of the Court order were unequivocal and the
respondent was not entitled to lay down conditions
prior to her
compliance with such order. In addition, when the respondent who was
legally represented, would reasonably have been
aware that the issue
of a warrant of arrest or the imposition of restrictions on South
African passports were not matters in respect
of which the applicant
was able or entitled to provide undertakings;
42.6. on 14 January 2012 the respondent proposed
securing a facilitator to agree an amendment to the children’s
place of residence
when the children had already been removed by her
to Zimbabwe, indicating her clear intention 9 days after her
departure to retain
the children in Zimbabwe;
42.7. on 25 January 2012 the respondent’s
household contents were moved to Harare, three days after she had
informed the SAPS
that there was a dispute regarding the
interpretation of the court order, when no such dispute has been
shown to exist;
42.8. on 26 January 2012, the day after the
removal of her household contents, the respondent informed the
applicant that her return
to South Africa was impossible due to his
irrational behaviour; and
42.9. the respondent proceeded to enrol the
children in schools in Zimbabwe, including boarding school, without
the agreement of
the applicant and in further breach of the order of
this Court.
[42] The respondent has failed to advance evidence establishing a
reasonable doubt that her non-compliance with the court order
was
wilful and
mala fide
. I am satisfied that in removing the
children from South Africa in the manner that she did, there is no
evidence before me to prove
that the respondent did not intend to act
in breach of the Court order. I am satisfied that the evidence shows
that she did so
both wilfully and in bad faith. The effect of her
conduct has been to breach the order of this Court, to make material
and far-reaching
schooling and life decisions for the children
unilaterally without the consent or agreement of the applicant and to
deny the applicant
access to his children and his right to make the
necessary and appropriate decisions concerning their welfare,
schooling and well-being.
I find that the respondent has accordingly
acted in contempt of the order of this Court made on 29 April 2009.
Removal
of children
[43] As stated above, the applicant does not currently pursue an
order of committal against the respondent and no such order is
to be
made given the absence of the respondent from the jurisdiction of
this Court.
[44] I am satisfied however that that there exists no reason as to
why an order should not be granted to the effect that, subject
to any
finding and order of the High Court of Zimbabwe which is to hear the
pending application brought by the applicant in terms
of the Hague
Convention on the Civil Aspects of International Child Abduction in
regard to minor children, the children should
not be returned to the
Western Cape in the Republic of South Africa. The granting of such an
order is conditional upon the determination
of the Zimbabwean High
Court and to this extent declaratory within the ambit of section
19(1)(a)(iii). Furthermore, it confirms
and accords with the terms of
the order of this Court granted on 29 April 2011 and serves the
purpose that it may be placed before
the High Court in Zimbabwe in
the pending Hague Convention proceedings.
Costs
[45] The applicant seeks an order as to costs on
the attorney and client scale against the respondent. This Court may
award attorney
and client costs against an unsuccessful litigant
where conduct has been ‘unworthy’, reprehensible or
‘blameworthy’
(
Hamsa v
Bailen
1949 (1) SA 993
(C)).
[46] I am satisfied that the failure to comply with the terms of the
order of this Court that had been taken by consent between
the
parties constitutes blameworthy conduct that justifies a punitive
costs order against the respondent. This is more so given
that this
application was capable of being avoided had there been compliance
prior to the hearing of the matter with the terms
of the order by the
respondent.
Order
[47] In the result, the following order is made:
1. The respondent is found to be contempt of the
court order under case number 2399/2010 on 29 April 2011, more
particularly in
regard to the provisions pertaining to the parties’
minor children as set out in the Parenting Plan.
2. The respondent is found to have removed the
three minor children unlawfully from the Republic of South Africa.
3. Subject to any finding and order of the High
Court of Zimbabwe hearing the pending application brought by the
applicant in terms
of the Hague Convention on the Civil Aspects of
International Child Abduction in regard to minor children, the minor
children should
be returned to the Western Cape in the Republic of
South Africa.
4. The respondent shall pay the costs of this
application on the scale as between attorney and client.
_______________________
KM Savage
Acting Judge of the High Court
Appearances
:
Applicant: Adv J McCurdie
Instructed by Smith Symms& Associates
Respondent: Adv T-A Pratt
Instructed by HanlieVisser Inc.