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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

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

 

(1)    REPORTABLE: YES/NO

(2)    OF INTEREST TO OTHER JUDGES: YES/NO

(3)    REVISED: YES/NO

 

CASE NO: 63698/13

 

In the matter between:

 

J[….] S[….]                                                                                                                Applicant

 

and

 

W[….] F[….]                                                                                                              Respondent

JUDGMENT

Van der Schyff J

Introduction

1.           This application is considered during the National State of Disaster declared by the State President in terms of the Disaster Management Act, No 57 of 2002 and the ensuing extended Covid-19 national lockdown. A virtual platform was utilised for hearing argument.

2.           For purposes of clarity Mrs J S[….] is throughout this judgment referred to as the applicant, and Mr W F[….] is throughout referred to as the respondent.

3.           The applicant in this matter approached the Acting Deputy Judge President with an urgent request to appoint a case manager to facilitate the effective finalisation of the litigation between the parties. Van der Schyff J was subsequently appointed as the case manager. As is apparent from the discussion below, the parties are embroiled in acrimonious and protracted litigation. At the first case management meeting the respondent's legal representatives indicated that the respondent does not agree to the appointment of a case manager. They also indicated that their instruction was only to participate at the case management meeting in so far as to convey, and reiterate, the respondent's objection to the Court's jurisdiction to deal with the litigation between the parties. After facilitation by the case manager, the parties agreed on 24 June 2020 to place the issue of the Court's jurisdiction to adjudicate the dispute between the parties before the Court by way of a stated case in terms of Rule 33(1) of the Uniform Rules of Court.

4.           The stated case was filed on 1 July 2020. I heard argument on 3 July 2020.

5.           Subsequent to argument being heard, the parties were requested to supplement their arguments with reference to the nature of the relief sought by the applicant in terms of prayer 4.5 of the amended notice of motion and on the relevance of the fact that France is a Contracting State to the Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation  in  Respect  of Parental  Responsibility   and   Measures   for   the   Protection   of   Children,   for this Court's jurisdiction to hear the application.

 

Facts agreed upon

6.           The following facts, that relates to the issue of jurisdiction, are common cause between the parties:

6.1.                The applicant and the respondent were married and subsequently divorced by decree of this Court on 26 February 2010 under case number 3301/2009;

6.2.                Two children, still minors, were born from the marriage;

6.3.                The parties concluded a settlement agreement which was made an order of Court - the "divorce settlement agreement";

6.4.                The settlement agreement provides that the parties are co-holders of parental rights and responsibilities in respect of the two minor children in terms of section 18(2)(a) of the Children's Act, No. 38 of 2005, the Children's Act;

6.5.                The divorce settlement agreement provides that the children's primary residence would be with the applicant, and prescribes the children's contact with the respondent;

6.6.                Subsequent to the divorce, the applicant expressed her intention to reside in France with the children and her then fiancee, temporarily;

6.7.                On 16 August 2011, the parties concluded a written settlement agreement, the France agreement. This agreement was not made an order of Court. It was recorded in this agreement that the applicant wishes to reside temporarily in France, with her children and fiancee, until 30 August 2014. The respondent consented to the removal of the children to France as contemplated in section 18(3)(c)(iii) of the Children's Act;

6.8.                During October 2013 the applicant launched an application in terms of section 18(5) of the Children's Act, the "main application", under case number 63698/2013. She sought, amongst others, an order dispensing with the respondent's consent as required in terms of section 18(3)(c)(iii) of the Children's Act, alternatively, authorisation to remain permanently resident in France together with the minor children;

6.9.                The respondent opposed the main application and sought an order securing the children's return to South Africa as per the terms of the France agreement, in August 2014 pending an investigation by the Office of the Family Advocate as to whether relocation to France would be in the children's best interest;

6.10.            On 6 May 2014 Baqwa J granted an order by agreement between the parties, the 2014-order. The order, inter a/ia , p rovides: (i) that the application is postponed sine die; (ii) that the Office of the Family Advocate is requested to investigate and report as to the best interest of the minor children; (iii) that pending the final determination of the application, the applicant is authorised to remain resident in France together with the children; and (iv) for the respondent's contact with the minor children;

6.11.            On 13 June 2017 the applicant filed an amended notice of motion in the main application. She sought, amongst other, the following relief: (i) an order dispensing with the respondent's consent as required in terms of section 18(3)(c)(iii) of the Children's Act and authorising the applicant to remove the children permanently from south Africa to France (ii) in the alternative, authorising the applicant to remain permanently resident in France together with the minor children; (iii) an order to the effect that for the period that the applicant resides outside the borders of South Africa with the minor children, the applicant's exercise of parental responsibilities and rights as the primary caregiver of the minor children, will include sole decision making relating to the children's day-to-day care, school and extramural participation and activities, medical and therapeutic treatment; (iv) an increase of maintenance payable by the respondent as well as payment of alleged arrear maintenance;

6.12.            On 27 June 2017 the respondent launched an urgent application in terms whereof he sought, amongst others, the appointment of Dr Henk Swanepoel to conduct an in-depth assessment regarding the exercise of parental rights and responsibilities of the parties;

6.13.            On 13 July 2017 Maumela J granted an order by agreement  between the parties, inter alia , postponing the respondent's application sine die, and requesting the Office of the Family advocate to investigate and report on an urgent basis on concerns raised by the respondent, in particular regarding the parties' minor son's medical condition and his medication and emotional well-being; and the applicant's request for sole-decision-making as set out in 4.11, supra. Adv Kyriaziz was appointed as the curator ad litem of the children at this stage;

6.14.            On 6 March 2018 the applicant issued an application, the variation application, in terms of which she inter alia seeks: (i) that prayer 4 of the 2014-order be suspended pending the adjudication of the main application. Prayer 4 of the 2014-order prescribed the terms of the children's contact with the respondent.

6.15.            On 12 March 2018 the respondent issued an application in which he sought, amongst others, relief holding the applicant in contempt of Court due to non­ compliance with the 2014-order;

6.16.            On 12 March 2018 Tlhapi J, granted an interim order, the 2018-order, which provided, amongst others, that the variation application and contempt applications be postponed sine die, and that pending the adjudication of the applications prayer 4 of the 2014-order be suspended. The children's contact with the respondent was stipulated.

6.17.            On 18 November 2019, Tlhapi J delivered judgment and stated, amongst others that "The issues around jurisdiction is stayed to be determined in the main application and the parties are authorised to file further affidavits in this regard".

6.18.            The question of law in dispute between the parties is whether this Court has jurisdiction in (i) the main application; (ii) the variation application and (iii) the contempt application.

6.19.            It must be noted, that although it is not set out amongst the common cause facts in the stated case, that the respondent is currently residing in the United States of America. Although the date of his departure from South Africa is not stated, it is evident that he was resident in the Court's area of jurisdiction when the main application was instituted. It is not stated in the facts before the Court whether the respondent permanently left the Republic of South Africa, or if not, when he plans to return. It must likewise be noted that the three applications referred to in the stated case do not encompass the full extent of litigation between the parties.

 

The parties' respective contentions:

i.              The applicant's contentions

7.           With regard to the main application the applicant contends that the Court has jurisdiction by virtue of the fact that- (i) the main application is an application in terms of section 18(5) of the Children's Act; (ii) section 18(5) prescribes that the applicant may not remove the children from the Court's jurisdiction without either the respondent's consent or the consent of the Court; (iii) the children are resident in France by virtue of the 2014- order and the Court is still to make a final determination as to whether it is in the children's best interest to permanently relocate to France and grant consent to do so; (iv) at the time that the main application was launched, this Court had jurisdiction, which jurisdiction continues until finalisation of the application.

8.           With regard to the variation application the applicant contends that the Court has jurisdiction by virtue of the fact that (i) the applicant seeks a variation of the 2014-order; (ii) the variation application is an application in which the applicant seeks relief pertaining to the exercise of parental rights and responsibilities in terms of section 18(1), 18(2), 18(3)(c)(iii) and (iv) and 18(4) of the Children's Act; (iii) this Court has jurisdiction in terms of which the 2014-order was granted and retains such jurisdiction until the finalisation of the application; (iv) only this Court has the jurisdiction to vary an order granted by it.

9.           With regard to the contempt application, it is contended that the Court does not have jurisdiction by virtue of the fact that (i) no south African Court can make a committal order in respect of a person resident in a foreign country; (ii) the doctrine of continuance of a Court's jurisdiction, does not apply to an application for arrest or committal for contempt where a respondent has left South Africa. The respondent filed an affidavit in opposition to an application for security of costs launched by the applicant, signed in July 2019 wherein he states that he is temporarily residing in Texas, USA.

10.        It is submitted that it is evident from the applicant's concerns and complaints that, although the law in South Africa is clear insofar as a primary care giver may make independent decisions regarding (for example) the medical treatment of children, the principle is not recognised by the relevant authorities in France. Hence, declaratory relief is necessary and appropriate, and the applicant contended that this relief could be granted as part of the stated case. It must be stated at this point that the stated case is nothing more and nothing less than what it purports to be, a determination as to whether this Court has the necessary jurisdiction to adjudicate the application instituted under case number 63698/2013, as amended together with the variation application and the contempt application instituted under the same case number.

11.        The applicant contends that the minor children habitually reside in South Africa. The argument is that the habitual residence was retained in South-Africa since the move to France is time-limited. Pending the finalisation of the present application, the argument goes, the children's residence in France is temporary on leave of this Court.

 

ii.     The respondent's contentions

12.        With regard to the main application, the respondent contends that the Court  does not hold the necessary jurisdiction to adjudicate the matter, by virtue of the fact that: (i) Baqwa J did not deal with the issue of jurisdiction in and  to the main  application,  this was left for future consideration and postponed sine die; (ii) the 2014-order was intended to only preserve the status quo regarding the minor children  on  an interim basis pending the report from the Office of the Family Advocate; (iii) by the time that the 2014-order was granted the minor children had resided outside of the Republic of South Africa for over two years; (iv) the applicant clearly expressed an intention not to return the children back to South Africa, which the respondent opposed; (v) the report from the Office of the Family Advocate was delivered 18 months after the 2014-order was issued; (vi) the lapse in time since the granting of the 2014-order and the fact that the jurisdiction issue is still pending enforces the consideration of the doctrine of effectiveness and any order granted by the Court has, due to the lapse in time, become academic and moot.

13.        The respondent contends that the applicant, who resides in France, is attempting to obtain a South African Court Order, in which the parental rights of the respondent, who are residing in the USA, towards the children, who reside in France, are stripped without any possible oversight from this Court or the Family advocate.

14.        Section 29 of the Children's Act clearly specifies that the Court, in whose jurisdiction the children concerned are "ordinarily resident" shall be the Court capable of entertaining an application for the termination, extension, suspension or restriction of parental rights and responsibilities;

15.        The doctrine of effectiveness is to be interpreted with the common law principle of 'ratio jurisdictionis' being a ground upon which the jurisdiction of the Court can be imputed upon the parties to a matter. The respondent asks the question as to whether the Court can input its judicial will upon minor children who reside outside its jurisdiction? He surmises that although the Court may develop and extend the common law relating to its inherent jurisdiction, this cannot be done to oust or interfere with the jurisdiction of the Court where the children reside.

16.        With regard to the variation application, the respondent likewise contends that the Court does not have jurisdiction, since it did not have the necessary jurisdiction to hear the main application in the first place.

17.        With regard to the contempt application the respondent contends that the Court does have jurisdiction by virtue of the fact that the Court has jurisdiction over the enforcement of its orders until they are set aside or varied.

18.        In the supplementary heads of argument, the respondent argued that the minor child's medical treatment exceeds day-to-day treatment, and that the applicant refrained from keeping him informed of the position. The view was reiterated that the relief sought by the applicant alters parental care and contact arrangements which will de facto extend the applicant's parental responsibilities and rights. The respondent argues, without substantiating the argument that the reference to "a competent court" in section 18(5) of the Children's Acts "would in any event be a court in France."

19.        The respondent argues that the habitual residence of the children is France.

iii Submissions made on behalf of the Office of the Family Advocate, Adv S Langeveld­ Goosen and Ms S Lotter (who are cited as the 3^rd to 5^th respondents in an application by the respondent that the main application be referred to oral evidence)

20.        Advocate Barnard, acting on behalf of the abovementioned third to fourth respondents, argued that it needs to be mentioned that the issue of jurisdiction was raised after the allegations that the respondent permanently relocated to the USA. The question of jurisdiction was only raised by the respondent in a replying affidavit. On 4 February 2019 the respondent stated under oath, that he was residing in Midstream.

21.        In the founding affidavit to the Contempt of Court application instituted by the respondent he states, in paragraph 11.2: " Invariably , the First Respondent [the applicant in the main application] has consented to the jurisdiction of this Honourable  Court, for all matters related to the Minor Children, which consent I too herewith confirm."

22.        Counsel submitted that the necessary mechanisms exist that can be utilised to facilitate the recognition of South African Court orders in foreign jurisdictions.

 

Discussion

23.        It must be stated from the onset, that although the relocation application instituted in 2014 in this Court is still pending, the applicant's current concern, and the catalyst that necessitated her to approach this Court yet again, is undoubtedly to obtain an Order from this Court to the effect that she has the sole decision-making power regarding the parties' minor son's medical treatment. It is common cause that the respondent is withholding consent because he does not agree with the treatment foreseen for this child.

24.        As in any matter where the interests of minor children are concerned, this Court is mindful of the fact that it must pursue what it deems to be in the best interest of the children concerned. The Court, as upper guardian of all minors within its jurisdiction, is, however, bound to pursue this objective within the framework provided for in the existing body of applicable law.

25.        Tlhapi J, stated in her judgment dated 18 November 2019 that: "There may exist reasons why this Court having regard to how the matter has developed, would find that it does not have jurisdiction to hear the matter regarding the issues around the minor children. On the other hand, there may be good reason why this Court should hold the parties to the jurisdiction of this Court, which they initially bound themselves to."

26.        It is not without reason that the legislature deemed it necessary to lay down the general principle in section 6(4)(b) of the Children's Act that in any matter concerning a child, a delay in any action or decision to be taken must be avoided as far as possible. The litigation between the parties already commenced in 2014, and the children who are the primary subject-matters of the litigation, have been resident in France since December 2011. None of the parties are currently residing in South Africa. It is thus, not strange that the issue arose as to whether this Court has the necessary jurisdiction to adjudicate the disputes before it.

27.        The starting point of any discussion regarding the issue of jurisdiction should be the Supreme Court of appeals decision in Hugo v Wessels [1987] ZASCA 45; [1987] 2 All SA 290 (A). Here the Court stated in paragraph 8 that a Court can only be said to have jurisdiction in a matter if it has the power not only of taking cognisance of a suit, but also of giving effect to its judgment. As a result, in order to answer the question as to whether a Court has the necessary jurisdiction to adjudicate a matter a two-fold inquiry must be undertaken. The first is to determine whether the Court is at all empowered to take cognisance of the suit, and the answer to this question will depend on the existence of one or more of the acknowledged grounds for jurisdiction, the rationes jurisdictionis. This in turn, is dependant and informed by the nature of the litigation before the Court. The second question can only be answered with reference to the doctrine of effectiveness and the Court's power to enforce its order.

28.        In deciding the question as to whether this Court has the power to take cognisance of the application instituted under case number 63698/13 with its amendment, proposed variation and accompanying contempt application, it is imperative not to lose sight of the fact that, with the exception of the contempt application, each of the issues that must be decided falls squarely within the ambit of the Children's Act. I am of the view, that this necessitates a sui generis approach when the issue of jurisdiction is determined. Depending on the nature of the relief sought, this Court will have to navigate between applicable provisions contained, inter alia, in the Superior Courts Act, No. 10 of 2013 (the Superior Court's Act), the Children's Act, the Divorce Act, No.70 of 1979 (the Divorce Act), and applicable international law principles to determine whether it possesses the necessary jurisdiction to adjudicate the matter.

29.        The relevant statutory provisions and international law instruments that must be considered are the following:

29.1.       Section 21 of the Superior Courts Act provides that a division of the High Court of South Africa has jurisdiction over all persons residing or being in, and in relation to all causes arising within its area of jurisdiction. A Division also has jurisdiction over any person residing or being outside its area of jurisdiction who is joined as a party to any cause in relation to which such Court has jurisdiction.

29.2.       Section 8(1) of the Divorce Act provides that an order in regard to the custody or guardianship or access to a child, made in terms of the Divorce Act, may at any time be rescinded or varied if a Court finds that there is sufficient reason therefore. Section 8(2) determines that a Court, other than the Court which made the order may rescind, vary or suspend such order of the parties are domiciled in the area of jurisdiction of such Court, or the applicant is domiciled in the area of jurisdiction of such Court and the respondent consents to the jurisdiction of that Court.

29.3.       Section 18(5) of the Children's Act provides for a "competent court" to adjudicate disputes arising from the co-guardian of a child refusing to consent to any of the aspects listed in section 18(3)(c) of the Act. These aspects are (i) consent to the child's marriage; (ii) consent to the child's adoption; (iii) consent to the child's departure or removal from the Republic; (iv) consent to the child's application for a passport, and (v) consent to the alienation or encumbrance of any movable property of the child. Section 29 of the Children's Act prescribes that an application in terms of section 22(4)(b), 23, 24, 26(1)(b) or 28 may be brought before a High Court, a divorce court in a divorce matter or a children's court' as the case may be, within whose area of jurisdiction the child concerned are ordinarily resident. Of these sections, section 28 might arguably come into play in the context of the amended notice of motion filed in what the parties classified as the main application.

29.4.       South Africa is a member of The Hague Conference on Private International Law (HCCH), although it is not a Contracting State to all the Conventions. South Africa is a Contracting State to the following Conventions: (i) Convention of 5 October 1961 on the Conflicts of Laws Relating to the Form of Testamentary Dispositions ; (ii) Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents; (iii) Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters; (iv) Convention of 25 October 1980 on the Civil Aspects of International Child Abduction; and (iv) Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of lntercountry Adoption. Due to the nature of the relief sought, and the facts of this matter, none of the conventions find application. It needs to be mentioned, however, that France is a Contracting State to the Convention of 19 October 1996 on Jurisdiction, Applicable Law, recognition,  Enforcement and Co­ Operation in Respect of Parental Responsibility and Measures for the Protection of Children. This convention was concluded between Contracting  States,  with the specific aim to improve the protection of children in international situations and to avoid conflict between different legal systems in respect of jurisdiction, applicable law, and the recognition and enforcement of measures for the protection of children. In terms of the convention the judicial or administrative authorities of the Contracting State of the habitual residence of the child have jurisdiction to take measures directed to the protection of the child's person or property. This includes measures relating to the attribution, exercise, termination or restriction of parental responsibility, as well as its delegation, and the rights of custody, including rights relating to the care of the person of the child and, in particular the right to determine the child's place of residence, as well as the rights of access including the right to take a child for a limited period of time to a place other than the child's habitual residence. Reference to this convention is crucial.  It  begs  the question  whether,  since  the minor children affected  by the litigation has been resident in France in excess of eight years, France has the jurisdiction to deal with the aspects stated in the convention. It emphasises the importance of international co-operation between States for the protection of children, in a day and time when, except for the Covid-19 pandemic, movement around the globe is becoming easier.

29.5.       South Africa is a signatory State to The Convention on the Rights of the Child, and ratified the CRC in 1995. Article 2(1) determines that State Parties shall respect and ensure that the rights set forth in the present Convention "to each child within their jurisdiction" (own emphasis.)

 

30.        In determining whether this Court has the necessary jurisdiction to grant the relief sought, a refined approach must be followed that might also result in this Court finding that it has the jurisdiction to decide on certain aspects of the relief sought, and not in others. Once again, such a seemingly fragmented approach is necessitated due to the sui generis nature of matters involving the best interests of minor children. This, is however, not a novel approach as is illustrated in in Ceronio v Snyman 1961 (4) SA 294 (W). Here it was held that although a Court with the necessary jurisdiction to adjudicate divorce proceedings between parties could make an order relating to the custody of a child, only the Court having jurisdiction in respect of the place where the child happened to be at the time, had the jurisdiction to order that the child be handed over to the parent to whom custody was awarded. Marais J explained: " The reason is that, although a Court might decide that, as between the two parents, one of them is entitled to the custody of the minor child, and make a declaratory order to that effect, the only proper forum for deciding whether or not the child should be entrusted to either of its parents and, if so, subject to what safeguards as to the child's welfare, is the Court which exercises the upper guardianship over the child, i.e. the Court in whose jurisdiction the child is. The upper guardian has to determine the child's position, irrespective of the rights of the parents inter se, in accordance with what appears to be in the best interest of the child." Marais J concluded that the only power the Court had in light of the fact that the child was not within its area of territorial jurisdiction, was to make a declaratory order to the effect that the applicant is in law entitled to the custody of the minor child, leaving it to the applicant to sue for the handing over of the child in the Court which is the upper guardian.

31.        The interrelation of different principles applicable when deciding on the question of jurisdiction, was highlighted in a judgment by Goosen J in N v N; In re N (2425/16) (2017] ZAECPEHC 61 (14 December 2017). The application was an application for the variation of a deed of settlement that was made an order of Court upon the divorce of the parties. The second applicant, the mother, and the child relocated to New Zealand at the end of 2016 and are permanently resident in New Zealand. The effect of the order would be to terminate the first applicant, the father's, guardianship of and parental rights and responsibilities in respect of the minor child. Goosen J, acknowledged in paragraph 21 and 22 of the judgment, that -

"[l]t is trite that a Court which granted a decree of divorce, incorporating the terms of a deed of settlement entered into between the parties, retains the jurisdiction to subsequently amend or vary that order. The jurisdiction of that Court is not affected by the fact that the applicant or a minor child affected thereby, is not ordinarily resident within the area of jurisdiction of the Court. However, if the application falls outside of the ambit of the variation of an order granted upon decree of divorce, then in that event the provisions of section 29 must be considered. [22] The terms of section 29 are clear and unambiguous  and,  in my view,  serve as an overriding determinant  of jurisdiction in circumstances where a Court is called upon to terminate, suspend or circumscribe the parental rights and responsibilities of a parent. The requirement is that the minor child must be ordinarily resident within the area of jurisdiction of the Court. This is a territorial limitation of jurisdiction".

 

As a result, Goosen J held that the Court cannot entertain an application of this nature where the minor children is not ordinarily resident in its area of jurisdiction even if by consent between the parties.

 

32.        I agree with the finding that section 29 of the Children's Act statutorily excludes the jurisdiction of this Court to hear applications in terms of section 28 of the Act where minors are not ordinarily resident in the Court's area of jurisdiction. As a result, this Court does not have the jurisdiction to consider granting relief that will amount to the termination, extension, suspension or restriction of the ambit of any of the respective parties' current parental responsibilities and rights if an application seeking this relief is instituted without the minor children being ordinarily resident in the Court's area of jurisdiction.

33.        The time for considering the determination of jurisdiction of a Court to entertain an application, is the time of the commencement of the application - Thermo Radiant Oven Sales (Pty) Ltd v Nelspruit Bakeries (Pty) Ltd 1969 (2) SA 295 (A) at 31OD. If a Court had the necessary jurisdiction to hear a matter when the application was instituted, the Court remains seized with the matter even if the basis for the jurisdiction later falls away.

34.        It thus becomes necessary to analyse the different components of the application before the Court, without considering the merits thereof, in order to determine whether this Court has the necessary jurisdiction to grant the relief sought.

35.        The main application, in its original form as instituted in 2014, is a relocation application that provides for the respondent's contact rights with the children, the applicant's responsibility to keep the respondent informed of the children's health, education and general  well-being  and  the  respondent's   responsibility  to  pay  maintenance.  The application was launched in 2014 when the children have already been residing in France for almost 3 years. The application was issued from this Court being the Court within whose area of jurisdiction the respondent resided at the time. Except for the aspect of relocation, prayer 3 of the notice of motion is effectively aimed at amending the respondent's contact with the minor children and his maintenance contributions, both aspects contained in the settlement agreement that was incorporated by the decree of divorce, hence falling within the spectrum of section 8 of the Divorce Act.

36.        It is important to discern between this relocation application before the Court being launched when the minor children were abroad with both parents' consent, and the situation where a minor is removed from the jurisdiction of the Court without the accompanying parent having obtained either the other parent's consent or being granted the necessary permission by a Court. Although the respondent contends that this Court never had the necessary jurisdiction to entertain any of the applications before it, the undisputed facts of the case indicate that the applicant and the two minor children initially left the country for France with the respondent's consent. When the applicant realised that the circumstances changed and that their stay abroad had to be extended, she approached the respondent and requested him to extend his consent. He refused to grant consent and she approached this Court for relief in terms of section 18(3)(c)(iii) before the initial consent period lapsed. The 2014-order was granted on 6 May 2014, and the time for which the respondent consented the minor children to stay in France would have elapsed on 30 August 2014.

37.        The respondent's argument that this Court did not have the necessary jurisdiction to entertain the main application in 2014 does not hold water. Section 18(5) provides that unless a competent Court orders otherwise, the consent of all persons that have guardianship of a child is necessary in respect of, inter alia , consent to the child's departure or removal from the Republic.

38.        It is important to note, first, that the 2014-order was granted by agreement between the parties. The fact that the respondent agreed to the interim order being granted, means that he effectively extended his initial consent granted in August 2011, a fact acknowledged in paragraph 39 of the respondent's supplementary heads of argument.

39.        As far as the Court's jurisdiction to entertain the application and grant the interim order in 2014 is concerned, it has to be considered that: (i) the respondent was ordinarily resident in the jurisdiction area of the Court when the application was instituted; (ii) he did not object to the Court's jurisdiction; (iii) section 18(5) of the Children's Act refers to "a competent Court"; (iv) section 18(5) of the Children's Act is not one of the sections mentioned in section 29 of the Children's Act; (v) the maintenance and contact components of the relief sought originates from the decree of divorce which order was obtained in this Division.

40.        In these circumstances I am of the view that the Court within whose area of jurisdiction the minor children was ordinarily resident at the time when the application was instituted, as well as the Court within whose area of jurisdiction the respondent resided, had the necessary jurisdiction to entertain the relocation application, and were 'competent courts'.

41.        The mere fact that the minor children had been absent from the country for a period of almost 3 years would not necessarily mean that they were, at that stage. not to be regarded to be ordinarily resident within the jurisdiction of the Court. In Zwyssig v Zwyssig 1997 (2) SA 467 (W), Van Schalkwyk J quoted Dicey and Morris The Conflict of/aws 11th ed (1987) vol 1 at 64: " It is possible to be resident in a country despite a temporary absence , and, at least in some contexts, to have two or more residences." A continuous physical presence is thus not a pre-requisite to be ordinarily resident and a person can be held to be ordinarily resident in an area to which that person will naturally and as a matter of course return to after his or her travels. At the time when the relocation application was instituted, the children were still only temporarily absent from South Africa. The agreement between the applicant and the respondent provided for them to be absent from the country for a specifically determined period. In the event that the application was heard in 2014, and it was found that they had to return, a repatriation order could be obtained by the respondent which would have facilitated their return. Since this Court is, however, not privy to the minor children's address before they left the country in 2011 because it is not stated in the stated case or reflected in any of the documents uploaded to Caselines as far as could be determined, and since the Court cannot speculate about where they resided before they left for France or would have resided if they had to return, this aspect will not be taken further.

42.        As stated, I am of the view that reference to 'a competent court' in section 18(5) of the Children's Act includes a Court which have jurisdiction in terms of section 21 of the Superior Court's Act due to the fact that the respondent was residing in the Court's area of jurisdiction at the time when the application was instituted. It is irrelevant for determining jurisdiction enquiry that the respondent does not currently reside in the country while the matter is considered by the Court- Doctors for Life International v Speaker of the National Assembly [2006] ZACC 11; 2006 (6) SA 416 (CC) at paragraph [57]. The fact that the respondent relocated, either temporarily of with the intent to relocate permanently, has no effect on the Court's jurisdiction. If that would be the case, respondents against whom legal proceedings are instituted can easily avoid the matters being finalised by constantly moving between Courts' areas of jurisdiction - Thermo Radiant Oven Sales (Pty) Ltd v Nelspruit Bakeries (Pty) Ltd 1969 (2) SA 295 (A).

43.       The respondent additionally submits that the filing of the amended notice of motion in the main application in 2017, altered the nature of the application from a relocation application to an application aimed at amending the status quo of the ambit of the parties' co-parental responsibilities and rights. In the amended notice of motion, the following relief is sought:

43.1.       Prayers 1 and 2 deal with the relocation of the applicant and the minors;

43.2.       Prayer 3 deals with the respondent rights of contact with the minor children;

43.3.       Prayer 4 deals with the applicant's responsibilities to keep the respondent updated regarding the minor children's general well-being and the parties' responsibility to ensure that the minor children have valid passports at all times

43.4.       Prayer 4.5 is the contentious prayer as it requires the Court to order that "the Applicant's (J[….] S[….]) exercise of her parental responsibilities and rights as the prime caregiver of the minor children, include sole decision making relating to the children's day-to-day care, school and extramural participation and activities, medical and therapeutic treatment."

43.5.       Prayers 5, 6 and 7 deal with the respondent's maintenance obligations;

43.6.       Prayer 8 deals with a request to the Office of the Family advocate;

 

44.        The question as to whether the determination of prayer 4.5 amounts to a limitation of the respondent's parental responsibilities as circumscribed in the deed of settlement incorporated in the decree of divorce, or a declaration of the applicant's rights as co­ holder of parental responsibilities in terms of the Children's Act as informed by sections 30 and 31 of the Children's Act, is a matter for argument. This is, however, determinant for the question as to whether this Court is empowered consider the relief sought in prayer 4.5. The dispute as to what the applicant's rights as co-holder of parental responsibilities entail in terms of South African law, can be resolved by issuing a declaratory order. The relief would in that instance be akin to what was referred to in Ceronio v Snyman, above.

45.        If, however, the relief sought in prayer 4.5 boils down to an amendment of the responsibilities and rights of any of the co-holders of parental responsibilities and rights, the Court will only have the jurisdiction to hear the matter if the children were ordinarily resident in the Court's area of jurisdiction at the time when the prayer was incorporated to the already instituted application - s 29 of the Children's Act. The amended notice of motion was filed in 2017, three years after the main application was instituted. The question is whether the minor children could at that stage still have been regarded to be ordinarily resident in the Republic of South Africa. It was held in NS and Others v Presiding Officer of the Children's Court (2184/18) [2018] ZAGPJHC 59 (6 February 2018) that the determination of whether a child is ordinarily resident in the area of the Court is a factual question. The Court held at paragraph 20: "Properly construed, the words 'ordinarily resident' ... connotes, in more contemporary terms the place or area where the child resides or his/her family resides." At the time when the notice of motion to the main application was amended, the children have been residing in France for longer than 5 years. The applicant has expressed her intention to relocate permanently to France contrary to the 2011 intention to only stay in France for a determined period. The affidavit and its annexures indicate that the children were properly integrated in their immediate community in France, they spoke French, were schooled in French and they lived in a family setting with their mother and her husband. Their lifestyle was by this time centred in France, although they were arguably still domiciled in the Republic of South Africa. If a common sense and realistic approach is followed when deciding whether, having regard to all the relevant circumstances, it can be said that the minor children were ordinarily resident in South Africa by the time the notice of motion in the main application was amended, I am not of the view that the children, at that stage could be regarded to be ordinarily resident in the Republic of South Africa - see Mayne v Main [2001] All SA 157 (A) at paragraph 7.

46.        In light of the above, I am of the view that if the relief sought in prayer 4.5 of the amended notice of motion entails limitation or extension of parental responsibilities, the matter falls outside the scope of the Court's jurisdiction. If, however, the relief sought is a declaratory order in which the applicant's rights as co-holder of parental responsibilities and rights and co-guardian of the minor children is to be defined, the position changes. A declaratory order will not change the status quo but merely delineate the parties' rights and responsibilities as it is informed by the settlement agreement and the relevant sections of the Children's Act. There is, in my view, no jurisdictional limitation on providing a declaratory order regarding the full extent of the rights obtained by the respective parties when the settlement agreement incorporated in the decree of divor ce was made an order of Court.

47.         I have already stated, that I am not of the view that the children are at this stage ordinarily resident in South Africa. If consideration is given to stability of the children's residence in France, and their familial and social integration in France, I am of the view that they are habitually resident in France. The applicant's express intention to settle permanently with the children in France, the fact that the children are enrolled in school, and that her husband has an employment relationship in France are factors contributing to this finding. In France, the habitual residence of the child is the primary ground for jurisdiction. As stated above, France is a Contracting State to Convention of 19 October 1996 on Jurisdiction, Applicable Law, recognition, Enforcement and Co-Operation in Respect of Parental Responsibility and Measures for the Protection of Children in terms whereof it has the jurisdiction to decide on issues of parental responsibility in regards of minor children who habitually reside in their jurisdiction.

48.        In summary this Court's view is that it is empowered to take cognisance of the application in so far as it revolves around- (i) the relocation of the children to France; (ii) the extent of the respondent's contact rights and his responsibility to pay maintenance; and (iii) to provide a declaratory order as to the extent of the parties' rights and responsibilities as co-holders of parental rights and responsibilities and co-guardians of the minor children under South African law. The principle of continuance renders these aspects, within the ambit of the Court's power to decide on, although the respondent has since left the area of jurisdiction the Court.

49.        The respondent argued that the Court does not have jurisdiction because it cannot enforce its orders. At first sight, this view corresponds with what was set out in Hugo v Wessels, above. However, sight should not be lost that the question as to whether a Court has the necessary jurisdiction to hear a matter, is determined on the basis as to whether the Court had the jurisdiction to hear the matter, when it was initially instituted . Jurisdiction is not determined on a piece-meal basis as the litigation progresses. Once established, the jurisdiction lasts. Although a judgment might be rendered ineffective because a respondent left the area of the Court's jurisdiction after the application was instituted , the due administration of justice requires that the application be brought to finality.

50.         As far as the contempt of Court application instituted by the respondent against the applicant is concerned, the Court has the necessary jurisdiction to adjudicate the application so as to determine whether the applicant is indeed in contempt, although the Court will arguably not be able to enforce an order for the committal of a party residing outside the borders of the country, for as long as that party is outside of the country. It was, however, held in Cats v Cats 1959 (4) SA 375 (C) that the mere fact that an order cannot immediately be enforced, does not mean that it is not effective. The applicant still has family in South Africa and any order made will be enforceable when she sets foot in the Republic.

 

ORDER

In light of the above the following order is made:

1.        This Court has the necessary jurisdiction to entertain the relief sought in the main application and variation application in so far as it concerns an amendment of the decree of divorce which does not fall within the ambit of section 29 of the Children's Act;

2.        This Court has the necessary jurisdiction to determine the relocation application;

3.        This Court has the necessary jurisdiction to make a declaratory order to delineate the applicant's rights as co-holder of parental responsibilities and rights and co­ guardian of the minor children as informed by the settlement agreement incorporated in the decree of divorce and relevant provisions of the Children's Act, in terms of South African Law;

4.        This Court has the necessary jurisdiction to entertain the contempt application;

5.        In the event that the applicant wants to supplement her papers in the main, - and variation application she is afforded 5 days from the date of this Order to supplement any papers in which she is cited as the applicant, and file such papers;

6.        The respondent is afforded 5 days from the date of the filing of the applicant's supplemented papers to supplement his answering papers to the main- and variation application, and file such papers;

7.     In the event that the applicant needs to reply to the respondent's supplemented papers, she is afforded 3 days from the filing of the respondent's papers, to file her reply.

8.      In the event that the respondent wants to supplement his papers in the contempt application, he is afforded 5 days from the date of this Order to supplement his founding papers, and file such papers. The applicant if she wishes to do so, must supplement her answering papers within five days after the respondent filed his supplemented papers, and file such papers. The respondent is granted 3 days to file a reply after receipt of the applicant's supplemented answering papers, if any.

9.       Any party who does not adhere to the stipulated time periods is barred from filing further papers in the respective matters.

10.    After the supplementation of the papers relating to the main application, and the variation application, if any, the applicant is to obtain a date from Van der Schyff J's registrar and set the applications down for argument before Van der Schyff J.

11.    After the supplementation of the papers relating to the contempt application, if any, the respondent is to obtain a date from Van der Schyff J's registrar and set the application down for argument before Van der Schyff J.

12.    Costs are reserved.

 

 

 

E van der Schyff

Judge of the High Court, Gauteng, Pretoria

 

 

 

Counsel for the applicants:                       Adv LC Haupt SC

With                                                          Adv T Cooper

Instructed by:                                            WEAVIND AND WEAVIND INC

For the respondent:                                   WATSON LAW INCORPORATED

For the Office of the Family Advocate     Adv M Barnard

Date of the hearing: 3 July 2020

Delivered:                                                 10 July 2020

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