G.J.K and Another v K.A.S.K (born B) (1214/09) [2010] ZAECPEHC 15 (4 May 2010)

G.J.K and Another v K.A.S.K (born B) (1214/09) [2010] ZAECPEHC 15 (4 May 2010)

The court held that, although the applicants succeeded in obtaining the relief sought, the respondent's opposition was limited, bona fide, and ultimately not persisted in, particularly in light of the Family Advocate's recommendations. The respondent did not oppose the interdict relief, and her conduct was motivated by concern for the children's interests. In such circumstances, it would not be fair to penalize her with an adverse costs order. The court exercised its discretion to depart from the general rule that costs follow the event, finding that no order as to costs was appropriate given the nature of the dispute and the parties' bona fide intentions.

Citation
[2010] ZAECPEHC 15
Parties
Applicant: G J K; Applicant: Cheryl-Ann Lee; Respondent: K A S K (born B)
Court
Eastern Cape High Court, Port Elizabeth
Jurisdiction
South Africa
Judgment Date
4 May 2010
Case Number
1214/09
Procedural Posture
Urgent Application / Costs Determination Following Finalization of Merits
Outcome
No order as to costs. The custody arrangement is varied in accordance with the agreement reached between the parties and the recommendations of the Family Advocate.
Judges
Kroon
Legal Topics
Variation of Custody Order, Costs in Family Law, Supervised Access, Interdict Against Abuse
Family and Children Civil Procedure Variation of Custody Order Costs in Family Law Supervised Access Interdict Against Abuse

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 2 Authorities cited 1 Party arguments 2
Sign in to unlock

Parties

G J K

Applicant

Cheryl-Ann Lee

Applicant

K A S K (born B)

Respondent

Procedural Posture

Urgent Application / Costs Determination Following Finalization of Merits

Legal Issues

  1. 1 What is the appropriate costs order following the variation of a custody arrangement?
  2. 2 Should the respondent be ordered to pay costs given her limited opposition and the nature of the proceedings?
  3. 3 Is a costs order justified where the respondent did not oppose the interdict relief?

Ratio Decidendi

The court held that, although the applicants succeeded in obtaining the relief sought, the respondent's opposition was limited, bona fide, and ultimately not persisted in, particularly in light of the Family Advocate's recommendations. The respondent did not oppose the interdict relief, and her conduct was motivated by concern for the children's interests. In such circumstances, it would not be fair to penalize her with an adverse costs order. The court exercised its discretion to depart from the general rule that costs follow the event, finding that no order as to costs was appropriate given the nature of the dispute and the parties' bona fide intentions.

Court Disposition

No order as to costs. The custody arrangement is varied in accordance with the agreement reached between the parties and the recommendations of the Family Advocate.

Orders

  • The order of this Court on 23 September 2008 in case no 365/2007 is varied by the deletion of paragraphs 2.4, 2.5, 2.6 and 2.7 of the deed of settlement incorporated in the said order.
  • The terms of the agreement reached between the parties as recorded in the Deed of Settlement concluded between them and filed of record on 21 April 2010 are made an order of Court.