Douglas-Hamilton v Latief (14622/2007) [2010] ZAWCHC 194 (26 August 2010)
- Citation
- [2010] ZAWCHC 194
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- Western Cape High Court, Cape Town
- Panel
- Steyn
- Case number
- 14622/2007
More details
- Court
- Western Cape High Court, Cape Town
- Panel
- Steyn
- Case number
- 14622/2007
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that the parties had reached agreement on all aspects of the consent paper except for the clause relating to facilitator costs. After hearing both parties and considering their respective financial positions, the court approved the variation to clause 9.18, providing for an 80/20 split of facilitator costs until the respondent obtains gainful employment, after which the split reverts to 50/50. The facilitator retains discretion to order reimbursement of costs where appropriate. The variation was found to be fair and in the best interests of the child.
Court disposition
The consent paper is varied in accordance with the applicant's notice of motion and the parties' agreement, with the revised clause 9.18 regarding facilitator costs incorporated. No order as to costs.
Orders
- The consent paper entered into between the parties on 9 February 2009 and made an order of court on 13 February 2009 is varied as per the applicant's notice of motion and amendments agreed between the parties.
- Clause 9.18 of the consent paper is amended to provide for an 80/20 split of facilitator costs until the respondent obtains gainful employment, thereafter reverting to a 50/50 split, with the facilitator retaining discretion to order reimbursement of costs.
- Each party shall be liable for fees pursuant to their communication with the facilitator.
- No order as to costs.
02
Material facts
Parties
John Gavin Douglas-Hamilton
ApplicantWisaal Latief
Respondent03
Procedural history
Posture
Civil Application / Variation of Consent Order
04
Questions and positions
Legal issues
- 01
Whether the consent paper regarding care and contact of the minor child should be varied as per the applicant's notice of motion.
- 02
How the costs of the facilitator should be apportioned between the parties.
Party arguments
- Applicant
- The applicant sought a variation of the consent paper to address the apportionment of facilitator costs, proposing an 80/20 split until the respondent obtains gainful employment, after which the split would revert to 50/50. The applicant argued this arrangement is fair given the respondent's current financial position.
- Respondent
- The respondent agreed to the variation of the consent paper except for the clause relating to facilitator costs. She contended that the cost apportionment should be equitable and reflect her financial circumstances, but ultimately reached agreement on the revised clause.
05
Court’s reasoning
Legal principles
- 01
Children's Act 38 of 2005
A consent paper regulating care and contact of a minor child may be varied by agreement between the parties and with the approval of the court, provided the variation serves the best interests of the child.
- 02
Douglas-Hamilton v Latief (14622/2007) [2010] ZAWCHC 194
The apportionment of facilitator costs should be fair and take into account the financial circumstances of the parties.
06
Ratio, limits and disposition
Ratio decidendi
The court found that the parties had reached agreement on all aspects of the consent paper except for the clause relating to facilitator costs. After hearing both parties and considering their respective financial positions, the court approved the variation to clause 9.18, providing for an 80/20 split of facilitator costs until the respondent obtains gainful employment, after which the split reverts to 50/50. The facilitator retains discretion to order reimbursement of costs where appropriate. The variation was found to be fair and in the best interests of the child.
Obiter and limits
- The court commended the parties for resolving the main issues amicably and for their efforts to reach agreement on the terms of the consent paper.
- The court noted that the facilitator's discretion to order reimbursement of costs serves as an additional safeguard to ensure fairness.
Court disposition
The consent paper is varied in accordance with the applicant's notice of motion and the parties' agreement, with the revised clause 9.18 regarding facilitator costs incorporated. No order as to costs.
- The consent paper entered into between the parties on 9 February 2009 and made an order of court on 13 February 2009 is varied as per the applicant's notice of motion and amendments agreed between the parties.
- Clause 9.18 of the consent paper is amended to provide for an 80/20 split of facilitator costs until the respondent obtains gainful employment, thereafter reverting to a 50/50 split, with the facilitator retaining discretion to order reimbursement of costs.
- Each party shall be liable for fees pursuant to their communication with the facilitator.
- No order as to costs.
Source and reliance status
Western Cape High Court, Cape Town
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
Western Cape High Court, Cape Town
Judgment
JUDGMENT
IN THE
HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT, CAPE TOWN)
CASE NUMBER: 14622/2007
DATE: 26 AUGUST 2010
In the matter between:
JOHN GAVIN DOUGLAS-HAMILTON …............................................Applicant
and
WISAAL
LATIEF …...............................................................................Respondent
STEYN, J:
In this matter the parties have been able to resolve the main issues between them regarding contact and care of the minor child as set out in a consent paper. The day has been spent by the parties trying to fine tune a consent paper entered into between them that runs to 19 pages. The parties are in agreement in regard to every single page of this consent paper, save to paragraph 9.18 of the consent paper that I will refer to shortly. The order of the Court in the circumstances, is that having perused the documentation filed of record,
having heard counsel for the applicant and the respondent in person, the following order is made:
The consent paper entered into between the parties on 9 February 2009 and which was made an order of this Court on 13 February 2009, is varied in accordance with the applicant's notice of motion dated 3 November 2009, the notice to amend, the notice of motion dated 23 April 2010 and amendments made by agreement between the parties.
A copy of the varied consent paper containing such amendments is annexed hereto marked X, save for an amendment to clause 9.18, which now will read as follows:
"The parties shall be liable for the costs of the facilitator in the ratio of 80/20 until such time as the respondent should obtain gainful remunerative employment, whereafter the ratio will revert to a ratio of 50/50 (where applicant shall pay 50% and respondent 50% of the costs, unless otherwise determined by the facilitator). The facilitator may order a party against who a ruling has been made, to refund the costs of facilitation, or part thereof, to the other party. Each party shall be liable for fees pursuant to their communication (whether via telephone or electronic medium) with the facilitator.''
3. By agreement with the applicant, there will be no order as to costs.
STEYN, J
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