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[2011] ZAWCHC 46
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R.R.S v D.A.L (22994/2010) [2011] ZAWCHC 46 (23 February 2011)
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IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
CASE
NUMBER
:22994/2010
DATE:
23
FEBRUARY 2011
In
the matter between:
R[…]
R[…] S[…]
…..................................................................................................
Applicant
and
D[…]
A[…] L[…]
…...............................................................................................
Respondent
JUDGMENT
Application
for Leave to Appeal
DESAI,
J
This
is an application for leave to appeal to the Supreme Court of Appeal
against the whole of the judgment which was handed down
by this court
on 10 December 2010
Mr
A
Stokes
,
who appears once more on behalf of the respondent, contends that the
judgment is not appealable.
That
argument is not without merit. This court was requested to determine
the wrongfulness or otherwise of the child's removal from
South
Africa for the purposes of Articles 3 and 5 of the Hague Convention,
1980 It followed upon an order in terms of Article 15
of the
Convention by a court in the United Kingdom.
In
effect, a declarator without any consequential relief was issued. As
Mr
Stokes
has pointed out, the application is made to further applicant's case
in the United Kingdom. This court's decision is not binding
upon the
court in the United Kingdom and it is at liberty to reconsider the
issues which were decided by this court.
The
issues upon which this court has pronounced are interlocutory and not
final in effect, as the applicant is entitled to reargue
the matter
before the court in the United Kingdom.
Leave
to appeal is.
inter
alia,
sought
on the basis that this court erred in its finding with regard to the
child's permanent place of residence The argument advanced
by
applicant's counsel. Ms P
Weyers
SC
:
centred largely on the respondent's concession made in the UK
proceedings. The issue was argued at length before this court and
at
no stage did the applicant seek leave to supplement his papers. He
was alert to the need to prove habitual residence and in
fact sought
to prove it by means of the concession and, it seems, acquiesced in
this court deciding the issue
In
any event, this court had to determine the wrongfulness of the
removal for the purposes of Article 3 of the Convention and that
article has as a precondition, a determination whether the child was
habitually resident in the country from which she was removed.
Moreover the applicant knew from the date upon which he received the
answering affidavit that the issue of habitual residence was
to be
argued. The issue was in any event fully ventilated before this
court.
With
regard to the challenge to the factual findings in this regard, these
have been dealt with in the judgment and I do not intend
restating
the reasons for the court's conclusion in that regard As Mr
Stokes
had pointed out, nowhere in the application for leave to appeal or in
the argument before this court, did Ms
Wevers
attempt to explain the applicant's patent dishonesty with regard to
the Natwest account. This court was alert to the constitutional
rights of the child to parenthood, but was unable to find that the
applicant contributed in good faith to the child's upbringing
as
contemplated in the
Children's Act 38 of 2005
for the reasons which
are set out in some detail in the judgment.
In
the circumstances. I am of the view that there are no reasonable
prospects of another court coming to a different conclusion
in this
matter, assuming applicant overcomes the hurdle that the matter is
not appealable.
THE
APPLICATION FOR LEAVE TO APPEAL IS ACCORDINGLY DISMISSED WITH COSTS.
DESAI,
J