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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA

(WESTERN CAPE DIVISION, CAPE TOWN)

CASE NO:  6743/2019

DATE:  2019/10/15

In the matter between

A P                                                                                        Applicant

and

V P                                                                                    Respondent

JUDGMENT

 

 

BOZALEK, J:

As the Judge on duty on Monday, 14 October 2019, dealing with urgent applications, I became seized with this matter which the applicant seeks the setting aside of an order made in this court by Cloete, J on 26 June 2019.  That order directed the applicant to ensure the return to Cape Town of his 11 and 8 year old daughters before 6 July 2019, pending the finalisation of a Full Bench appeal scheduled to be heard on Friday, 18 October, i.e. in three days time.

The order permits the applicant not to have to return his son, L, who is aged 14 years, going on 15.  It further provides that if the applicant refuses or fails to return the two children to Cape Town, the authorities in the USA are empowered to remove the children from him and facilitate their return to Cape Town.

It is common cause that all three children are presently residing with the applicant and his new wife, in Anchorage, Alaska, United States of America, and that they have been there since he left the country, taking the children with him, on or about 22 April 2019.

A brief history of the extensive litigation in this matter is that the parties were divorced in 2013 with the respondent obtaining primary custody or residence rights in respect of the minor children.  In August 2019, the applicant applied for primary custody of the children and permission to relocate with them to Anchorage.  These proceedings were opposed by the respondent who also opposes the present urgent application.  But on 20 March 2019, Allie, J, granted applicant the order sought and thereafter refused leave to appeal.

The respondent thereafter successfully petitioned the SCA for leave to appeal.  Notwithstanding that the successful petition had the effect of suspending Allie, J's order and notwithstanding undertakings by the applicant not to remove the children from South Africa, he did so without advising the respondent or her legal representatives thereof in advance.

This moved the respondent to bring an urgent application which ultimately led to Cloete, J's order of 26 June, by way of confirmation of an earlier rule nisi.  That application was fiercely contested by the applicant, who thereafter unsuccessfully sought leave to appeal which was refused by Cloete, J on 5 July 2019.

In the present application the primary point relied upon by Mr Pincus for the applicant is that, in making her order of 26 June, Cloete, J failed to hear the voices of the children before directing that the children be returned and separated, and their views on the question of their being forced to return to South Africa pending the finalisation of the appeal.  This, he contended, was in breach of various provisions in the  Constitution, the Children's Act, recent case law and also infringed the audi alteram partem rule.  In substantiation, Mr Pincus also quoted extensively from various reports of child psychologists drawn up in the course of the preceding lengthy litigation. 

On behalf of the respondent, the applicant's locus standi was disputed, given that he is in breach of a court order.  Urgency was also disputed on the grounds that whatever urgency there is, is self-created;  and finally on the merits, namely on the basis that the voices of the children, had they been directly heard in the manner posited, would have made no difference to the order for various reasons.

Before dealing with these aspects I regard it as necessary to quote at some length from Cloete, J's judgment refusing leave to appeal, since those sections which I will quote set the stage for the present matter.  Paragraph 3:

"During argument on 21 June, Ms Anderson, who appeared for the father, accepted, correctly in my view, that when he removed the children from this court's jurisdiction on 22 April 2019, he was not permitted to do so, given, inter alia, that on 18 April 2019, the mother had lodged her petition at the Supreme Court of Appeal, and further that the father's attorney had unequivocally informed the mother's attorney on 3 April 2019 that:

"It is trite law that once your client's petition had been filed … the order is stayed and our client will not be able to relocate with the children until the finalisation of the petition."

Paragraph 4:

"Although Ms Anderssen tried to persuade me that the father had not knowingly removed the children in breach of his undertaking, it was undisputed that he did not inform the mother of his intention to remove the children and of particular concern was that none of the children disclosed this intention to the mother, despite all three children having spent the Easter Weekend with her in terms of an agreed contact schedule, from Friday, 19 April 2019 until Sunday, 21 April 2019.  I was persuaded that only one of two reasonable inferences could be drawn therefrom.  Either the children knew and had been sworn to secrecy by the father, or the father deliberately elected not to disclose this to the children until the eleventh hour and prevailed upon them to withhold this information from the mother until they had already departed from South Africa."

Paragraph 6:

"After the conclusion of argument, counsel were informed of my findings that:

(a)    The father knew that he was breaching the undertaking made on his behalf and relied upon by the mother when he removed the children from South Africa by stealth.

(b)    He was in breach of that undertaking, irrespective of his overly technical and unmeritorious submissions in respect of the technical status of the petition when he removed the children.

(c)    Any urgency or prejudice in relation to the children's visas and green cards was self-created by the father.  And if the parties were unable to reach common ground, then the two younger children, at least, would have to be returned pending the outcome of the appeal."

Paragraph 7:

"Given that the best interest of the children were at stake, the parties were directed to explore the following, namely, to approach the Honourable Judge President, in order to establish whether he would be willing to convene a court for the hearing of the appeal on an urgent, expedited basis … depending on the outcome of that approach, I would consider whether the two younger children's immediate return should also be suspended, subject to appropriate safeguards in respect of habitual residence for purpose of the Hague Convention and the like.  I indicated that, given what currently appears from the papers to be a fraught relationship between the mother and the eldest child (and I made no specific finding in this regard), it might be wise to err on the side of caution and not order his immediate return, again subject to the necessary safeguards.  I then stood the matter down until 26 June 2019 for the parties to explore the aforegoing."

Paragraph 8:

"On 26 June 2019, the parties' legal representatives approached me in chambers with confirmation from the Judge President, that he had granted an expedited date for the hearing of the appeal being 18 October 2019 …"

Paragraph 9:

"After hearing further submissions by the legal representatives, I informed them of my view that the two younger children would need to be returned in the interim.  There were three primary reasons:

1.     First, the children had already been out of this court's jurisdiction for over two months.  And by the time the appeal is heard, they will have been out of the country for almost six months, a considerable period of time in the lives of two young children who were deprived of the opportunity to even say goodbye to their mother.

2.     They have been on holiday since their removal (thus having missed the entire second term at their school and if not returned, the third term as well).

3.     As the period of their removal from South Africa lengthens, so too does the real risk of the appeal court, in the event that the mother's appeal is successful, being faced with the dilemma that the children have become settled in Alaska, notwithstanding that this is a direct result of the father's unlawful conduct."

Cloete, J went on to find that her order was a so-called simple interlocutory and, therefore, not appealable.  In paragraph 13 she stated as follows:

"What the father appears to overlook is that the order of 26 June 2019 is designed to restore, to the extent reasonably and practically possible, the status quo ante prior to the children's unlawful removal from this court's jurisdiction.  That removal was entirely as a result of the father's own actions, which he now effectively seeks this court to grant him leave to another court to condone …"

Paragraph 14:

"I accept that the order will cause further disruption to the two younger children and that they will be separated from their elder sibling for a limited period.  However, not a shred of evidence has been produced by the father that partial restoration of the status quo ante until the appeal process is finalised will result in the children's physical or emotional safety being placed at risk.  Careful consideration was given to the order made on 26 June 2019, and I was persuaded, on a conspectus of all the evidence before me at the time, that the father placed his own interests above those of the children and did not act in their best interests when he unlawfully removed them from this court's jurisdiction in breach of a solemn undertaking via his attorney to the mother's attorney.  To effectively condone that behaviour would bring the proper administration of justice into disrepute. Moreover, the Supreme Court of Appeal is clearly of the view that the mother enjoys at least a reasonable prospect of success on appeal.  This important fact can also not be disregarded, taking into account, as the father himself points out, that the best interests of the minor children are paramount."

Cloete, J also awarded costs against the applicant on an attorney and client basis.

Turning to the issues, I note, firstly, that whereas the applicant initially contended that the order was appealable, this is no longer his position, hence this application and hence there being no petition for leave to appeal to the Supreme Court of Appeal.  Secondly, it is three and a half months since the disputed order and more than three months since the applicant was ordered to return the children to Cape Town, which beg the questions why this application is being brought at the eleventh hour, four days before the Full Bench appeal, and why the children have not been returned.

Various explanations have been put forward by the applicant. Time does not allow me to deal with these in any detail.  Suffice it to say that, in my view, the most likely explanation is the very real possibility that the Full Bench may well not allow the applicant to present his case on appeal whilst he remains in open breach of the court order.  The papers in the urgent application are voluminous, some 465 plus pages, and in my view it was most unfair to spring this application on the respondent shortly after 4 October, giving her two or three days to file opposing affidavits.  This is a quintessential case of an applicant relying on urgency which is self-created.

It is trite that an applicant cannot create his own urgency by delaying the launching of an application.  This much is clear from a long line of cases in which this principle has been endorsed over and over again.  See, for example, Director of Public Prosecutions (Western Cape) v Midi Television (Pty) Limited t/a as e-tv 2006 (3) SA 92 (C) at paragraph 47.  See also Schweizer-Reineke Vleismaatskappy (Eiendoms) Beperk v Die Minister van Landbou en Andere 1971 (1) PHF11 (T):

"Volgens die gegewens voor die Hof, wil dit vir my voorkom dat die applikant reeds vir meer as 'n maand weet van die toedrag van sake waarteen daar nou beswaar gemaak word.  Die aangeleentheid het slegs dringend geword omdat die applikant getalm het en omdat die tweede respondent, soos die applikant, lankal geweet het of moes geweet het.  Al hierdie omstandighede in ag genome, is ek nie tevrede dat die applikant voldoende gronde aangevoer het waarom die Hof op hierdie stadium as 'n saak van dringendheid moet ingryp nie."

In my view, this Court is entitled to adopt a similar attitude, in which case the appropriate order would be to strike the matter from the roll with costs.  Be that as it may, I propose to deal with the merits of the matter as well.  In doing so, I shall assume, without deciding so, that despite being in clear breach of the provisions of the 26 June order, the applicant has locus standi and is entitled to be heard in this application to set such order aside.

In dealing with the merits, I wish to make clear furthermore that this Court cannot, and will not function as a court of appeal in relation to the order made by Cloete, J.  Thus, as I advised counsel during argument, I would not entertain argument to the effect that the applicant did not knowingly unlawfully remove the children from South Africa.  In support of his argument regarding Cloete, J's alleged fatal omission to hear the voices of the children, Mr Pincus quoted extensively, as I have said, from case law, the Constitution, international conventions and the like concerning the rights of children and particularly their right to be independently heard or represented in proceedings which affect their interest. 

Again, the circumstances in which this application are brought, which very shortly are that I hear the matter on the Monday and I am giving the judgment and order first thing on Tuesday morning in anticipation of the Full Bench hearing on Friday morning, and which include the need for an order to be given at the earliest opportunity, do not allow for an examination of all these provisions.  It must suffice to state that I am unaware of any provision which holds that no order can ever be made affecting a child's interests without directly hearing that child's views on the proposed order.

As in so many situations much will depend on the surrounding circumstances.  When I have regard to the present matter the following circumstances appear most relevant to the question of whether the disputed order was or is rendered a nullity by virtue of the Court's omission to "hear the children's voices" on the question of whether they should be returned to South Africa pending the outcome of the appeal.

Firstly, Cloete, J's order was primarily concerned or focused upon restoring the status quo ante pending the appeal.  In  no way was she required to rule on the best dispensation for the children in the medium or long term.  That will be the task of the Full Bench or another appeal court.  What Cloete, J's focus was to a larger extent was the question of what dispensation was fairest to all involved pending the outcome of the appeal, whilst appreciating that the best interests of the children were and are always paramount.  It is difficult to see what the children could add to this question, which has a large element of general legal policy to it. 

Secondly, as mentioned, the order would have, or has temporary effect and, had it been heeded, would have led to the children as I understand the position, residing with their grandmother here in Cape Town.  Thirdly, in making her order, Cloete, J, was clearly sensitive to the best interests of the children including the undesirability of uprooting them again and potentially separating the children.  Fourthly, since then the situation has grown more acute, largely because the applicant has tried by all means to avoid complying with the order.  And with each passing day his argument that it would not be in the interests of the children to be returned by the applicant, grows stronger.  In this sense, by his own unlawful conduct, the applicant is strengthening his case at the expense of the respondent's. 

Fifthly, more pointedly, given the history of this matter there is no explanation at all why the applicant or his legal representatives did not raise at an early opportunity their in  - principle objection to any decision being taken by Cloete, J, without the children's voices being independently heard.  Over a period of some five days, as I understand this matter, the applicant's legal representatives and the respondent's legal representatives fashioned the order which provided for the return of the children.  Why, one asks, at some point did they not raise this difficulty with the Court.

A related aspect is how these voices were to be heard when the applicant had spirited the children away from this country. Easily, through Skype calls, says the applicant's legal representative now. But if this was such an easy procedure why was it not proposed at the time?  Regarding not hearing the children on the possibility or the consequences of their being separated, I see no merit in this argument.  Cloete, J did not order that the children be separated.  Seen in proper context, she directed that should the applicant prefer to keep his son in the United States, pending the outcome of the appeal, he could do so.  Equally, the son and/or the applicant, could choose to return with his sisters and thereby there would be no separation between children, even temporary.

I should also mention that some argument was directed at the alleged vagueness or unenforceability of the order.  How is the applicant to ensure the return of the children when they were not willing to return?  Again, this is an entirely self-serving argument.  Just as the applicant saw fit to take these minors to the United States unlawfully, it can hardly be beyond his powers as a parent, to return with them.  It is really a question of wanting or being required to do so and it is not a case of hiding behind the attitude of the children who have been in the applicant's care, control and in his sphere of influence for the past three months or more.

At the instance of the respondent, Advocate Bernstein was recently appointed to ascertain and articulate the views and scenarios and concerns of the children.  Ironically she was not invited to participate in these proceedings by the applicant until I raised the issue and she attended at court and was most helpful. Prior to this, Advocate Bernstein had extensive interaction with the children and other related parties and filed a lengthy report in this matter, which report I have read.  It's not feasible to deal with it in any detail, but I will read out paragraphs 1.40, 1.41, 1.42, 1.43 and 1.45 thereof to give the gist.  She writes:

1.40    After my interviews and having regard to the expert reports, I have a few concerns which I wish to point out to this honourable Court.

1.41    In the judgment by Cloete, J, the learned judge, at paragraph 9 of her judgment, voiced the following concern:

"As the period of their removal from South Africa lengthens, so too does the real risk of the appeal court, in the event that the mother's appeal is successful, being faced with the dilemma that the children have become settled in Alaska, notwithstanding that this is a direct result of the father's conduct.  From my discussions with the children, they do now appear to be settled and are adamant that they are happy in Alaska and do not want to return."

1.42    I've noticed the commonality in the narrative of the children, the father and Ms Boegler (the new wife) and it appears to me that the children could have been included in adult conversations, from which they should have been shielded."

Advocate Bernstein gives various examples of this:

"1.43   From the discussion between H…"

(that's one of the daughters)

"… and the mother, it is apparent that the mother is also including the children in adult conversation which is not appropriate and will in all likelihood cause confusion and hurt to the child.

1.45    From Ms Boegler's email to me dated 2 October 2019 it is apparent that after my interview, the children have been interrogated by Ms Boegler and/or the father.  This is not appropriate."

Advocate Bernstein raises various other concerns as well which I do not need to mention.  In court, Advocate Bernstein confirmed that the children are clearly happy to stay in Alaska.  She expressed the view, however, that they are clearly being influenced by the applicant and that in a sense they have gone through a honeymoon period in Alaska over the last three months through their being in the company of their father on a daily basis, on holiday, doing many pleasurable and exciting activities.  According to Advocate Bernstein, the children, as a whole, their first prize, if I can put it in such terms, is to remain in Alaska, rather than be returned temporarily.  And the second prize is that if they must return, all three will come back and there will be no separation.

Having regard to all these factors, I do not consider that Cloete, J's failure to mero motu take steps to ascertain the children's view prior to making her order of 26 June 2019, rendered her order a nullity.  I would be very surprised that, even if Cloete, J had received this report from Advocate Bernstein before she made her order, that it would have influenced her to have simply overlooked the fact that the children were unlawfully removed from South Africa and to have sanctioned a situation whereby the Full Bench appeal would go ahead notwithstanding the applicant being in breach of that court order.

Nor, in my view, does any other reason relied on by the applicant, such as the order’s alleged unenforceability, render the order a nullity.  In my further view, the children's best interests are served and advanced by the disputed order which provides, inter alia, for a fair appeal procedure in relation to the question of whether it is in the children's best interests ultimately to be placed in the primary care of the applicant and to relocate to Anchorage.  Similarly, their best interests are served by ensuring that the applicant respects court orders and undertakings arising therefrom, rather than resorting to self-help.

Finally, in my view, an extremely important principle, namely respect for and compliance with court orders, is at stake in the present matter.  Even taking into account the best interests of the children, I can see no basis for overlooking or downgrading this principle in the present circumstances.  I recognise that, even at this late stage, requiring the children to be returned to  South Africa will cause them some hardship and is against their present wishes.  Nonetheless, such a course is, in my view, by far the lesser of two evils.

For all these reasons, the application must fail.  It follows that the respondent must be awarded her costs.  Mr Pittman initially sought costs de bonis propriis against the applicant's legal representatives but no convincing basis has been laid for such an order.  In the alternative he sought an order for costs on the attorney and client scale.  This application has hallmarks of an abuse of process.  It is unduly voluminous and brought at a late stage with minimal notice to the respondent.  Its central point, the argument regarding Cloete, J being required to hear the voices of the children, smacks of being a late afterthought and a volte-face and is essentially a self-serving, if not disingenuous argument. 

 

In the circumstances I consider that a punitive costs order is indeed justified.  For these reasons the application is dismissed with costs on the attorney and client scale.

 

 

_________________

BOZALEK, J

JUDGE OF THE HIGH COURT

DATE:  2019/10/15

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