E.M v Family Advocate, Cape Town and Another (15972/2008) [2009] ZAWCHC 5 (17 February 2009)

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

(CAPE OF GOOD HOPE PROVINCIAL DIVISION)

Case No: 15972/2008

In the matter between:

E.M. Applicant

and

THE FAMILY ADVOCATE, CAPE TOWN

(In her representative capacity as the

delegated Central Authority for South Africa

in terms of Section 4 of Act No.72 of 1996) First Respondent

K.M. Second Respondent

JUDGMENT: LEAVE TO APPEAL - DELIVERED ON 17 FEBRUARY 2009

MADIMA AJ

Introduction

1. This is an application for leave to appeal against the whole of my judgment and order handed down on 28 November 2008.

2. Mr Gerrit Visser appeared for the applicant while Adv N Mayosi appeared for the respondents.

3. In deciding this application I have had to consider whether there is a reasonable prospect of applicant's success on appeal. Stated differently, the test is whether there is a reasonable prospect that another court might come to a different conclusion. See S v Sikosana 1980 (4) SA 559.

4. I shall not repeat herein the facts leading to the dispute between the parties as this has been dealt with in my judgment of 28 November 2008. All I wish to mention here is that the dispute hinged mainly on whether or not second respondent had consented to or acquiesced to the wrongful retention of Baby M. in accordance with certain provisions of the Hague Convention of 1996. I repeat herein those issues that were in dispute between the parties during the hearing.

Issues in dispute

5. The following matters inter alia, were and still are in dispute between the parties.

a) whether Baby M.'s removal from the United Kingdom to, and/or retention in South Africa was wrongful;

b) whether Second Applicant consented or acquiesced to Baby M.’s removal;

c) whether due to the delay in the bringing of the instant application, the application falls outside of the requirements of the Act and falls to be dismissed;

d) ...;and

(e)

6. In my judgment I found that it is second respondent's Article 3 rights that were breached when applicant communicated to him that she would not be comingback to the United Kingdom, but intends settling permanently in South Africa with M.. Consequently I found that the removal was unlawful. 1 stand by that finding.

With respect to whether second respondent acquiesced to Baby M.'s removal from the United Kingdom, I found that the letter of 4 December 2007 that applicant sought to rely on could not be interpreted to mean anything beyond what it said, and could therefore not be relied on for proving that second applicant consented or acquiesced to Baby M.'s removal. I stand by that finding.

With respect to the delay by second respondent between the day applicant communicated to him that she would not be coming back to the United Kingdom, and intended to stay in South Africa with Baby M., and the launch of the proceedings, I found that the delay was not inordinate and that second respondent did all he could in the circumstances. I stand by that finding.

Mr G Visser did not come up with any compelling argument during the leave to appeal hearing that was fundamentally different from the submissions he made during the main application. He sought to rely once more on the letter of 4 December 2007 and in the fact that second applicant consented and or acquiesced to the removal and retention of Baby M.. 1 have dealt extensively with the rationale for my findings in this regard.

As I have stated at the beginning of this short judgment, the test is whether another court might arrive at a different outcome. 1 am not convinced it will be so in this case.

In the result application for leave to appeal to the full bench of this division is refused.

I therefore make the following order

1. Leave to appeal to the full bench of this division is refused Applicant to pay the costs of this application. MADIMA AJ

1. Leave to appeal to the full bench of this division is refused

Applicant to pay the costs of this application.

MADIMA AJ