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Sarantos v Sarantos (7670/2011) [2011] ZAWCHC 199 (19 April 2011)

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IN THE HIGH COURT OF SOUTH AFRICA

(WESTERN CAPE HIGH COURT, CAPE TOWN)



CASE NUMBER: 7670/2011

DATE: 19 APRIL 2011


In the matter between:


ALEXANDER MARK SARANTOS …............................................................Applicant

and

CHARMAINE DOROTHY SARANTOS …................................................Respondent






ORDER




WEINKOVE, AJ:



In this matter the applicant brings an urgent application for the return of two minor children who were secretly removed by the respondent from Hout Bay to Durban.



The matter is opposed and I have received opposing affidavits and replying affidavits and supplementary affidavits. I propose to give short reasons because this is a motion court roll matter, so my reasons will not be complete.


Initially I was concerned as to whether this Court has jurisdiction to hear the matter in view of the fact that the applicant had issued a divorce summons before this Court prior to the issue by the respondent of a divorce summons in the Kwazulu Natal Division, but the summons from Kwazulu Natal was served before the applicant's summons was served. I have been directed to the provisions of Section 2 of the Divorce Act. which makes it clear that for the purposes of the Divorce Act, a divorce action is deemed to be instituted on the date on which the summons is issued and there is no reference to when the date of service.



Be that as it may, this Court has a discretion where there are competing jurisdictions to have regard to the balance of convenience. I propose to make an order that the respondent return the minor children, hopefully accompanying them, back to Hout Bay and I do so on the grounds that I consider that the action instituted in Cape Town should represent the forum where this matter is disposed of.



I consider that for the Court to make an informed judgment in regard to the question of care and contact in respect of the minor children and whether the children will be prejudiced by having to live in KwaZulu Natal as opposed to the Western Cape, evidence from a number of persons or institutions would be relevant. I consider for example the staff at Sashka boarding school, and the teachers at the Vera School, Dr Anne Sumner of the Medi Cross Clinic, Dr Garry Gray the psychologist, possible staff or experts from the Kenilworth Clinic, collateral evidence of applicant's alleged alcoholism, Miss Leigh Pettigrew a clinical psychologist and her associate Martin Yodaiken, certain counsellors referred to in these papers who are called "Bev" and "Tarryn", Dr Grant of Noordhoek and a Miss Broderick who was Sashka's home tutor. Most of the people might have to be called.



Besides these particular witnesses, I consider that the divorce action will want to admit evidence necessary to consider respondent's parent's home circumstances, whether her father is an alcoholic or not and whether he has a serious heart condition. I would imagine that evidence in regard to respondent's family support system in Kwazulu Natal would also be evicentfSftce that will be necessary.



I imagine that collateral evidence concerning the allegations by respondent of physical abuse by the applicant on her, would require evidence from local witnesses. I imagine also that the special provisions which the applicant contends have been made for Sashka at Hout Bay, for example, the provision of a special swimming pool, a trampoline, a laptop, are factors which the Court might want to take into account. Most of this evidence will have to be given by witnesses in the Western Cape and not from Kwazulu Natal.



I consider the balance of convenience favours the jurisdiction of the High Court in Cape Town, rather than Kwazulu Natal, because most of these witnesses would give evidence that would be relevant on the questions of credibility and the validity of the allegations and counter-allegations made by the parties in this matter.



At the end of the day this Court is concerned with the best interests of two minor children who all of nine years old. One of them is autistic and whatever arrangements are to be made for them, the Court would have to have proper regard to the truth or otherwise of the allegations and counter-allegations which the parties have made in these papers. That decision would assist the Court in making an award which best serves the interests of these children.



Finally, the manner in which the respondent snatched these children from the jurisdiction of the Court is unacceptable and is the type of conduct which the Hague Convention prohibits in relation to the snatching of children from one country to another. South Africa is a signatory to the Hague Convention and endorses the condemnation of child snatching as a means of resolving disputes or a forum shopping.



On these grounds I consider that the children should be returned to the Western Cape, so that the matter can take its ordinary course. Our courts does equally condemn acts of child snatching within the Republic of South Africa. There will be an order in terms of the draft which applicant has prepared, save that I have amended sub-paragraph 2(5) by providing that the last sentence should read:



"The psychologist shall further be entitled to request either of the parties to undergo such CDT blood testing or such other evaluations he or she may deem to be in the best interest of the children."



Subject to that amendment, I make an order in terms of the draft order which has been handed up to me and which I have initialled.



WEINKOVE, AJ