Jonker and Another v Stoffels (1222/09) [2009] ZANCHC 55 (30 October 2009)

Jonker and Another v Stoffels (1222/09) [2009] ZANCHC 55 (30 October 2009)

The court found that the respondent, Stoffels, engaged in forum shopping and attempted to evade the consequences of the Northern Cape High Court's custody order by seeking conflicting relief in the Western Cape High Court. The respondent's conduct was deemed an abuse of process and a deliberate attempt to frustrate the execution of the court's judgment. The court held that the application for leave to appeal was a mere subterfuge and should be struck from the roll. The original custody and access orders must be enforced, and the respondent is ordered to deliver the minor child to the applicants within seven days, failing which the Sheriff is authorised to intervene. The respondent's...

Citation
[2009] ZANCHC 55
Parties
Applicant: J H Jonker; Applicant: H J J A Jonker; Respondent: Francois C Stoffels
Court
Northern Cape High Court, Kimberley
Jurisdiction
South Africa
Judgment Date
30 October 2009
Case Number
1222/09
Procedural Posture
Urgent Application / Application for Enforcement of Custody Order and Striking of Leave to Appeal
Outcome
Application granted. Leave to appeal struck from the roll. Custody and access orders enforced. Costs awarded against respondent on attorney and client scale. Leave granted for contempt proceedings.
Judges
F DIALE KGOMO
Legal Topics
Custody and Guardianship, Parental Responsibilities and Rights, Best Interests of Child, Stay of Execution, Contempt of Court
Family and Children Civil Procedure Custody and Guardianship Parental Responsibilities and Rights Best Interests of Child Stay of Execution Contempt of Court

Case Brief

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Parties

J H Jonker

Applicant

H J J A Jonker

Applicant

Francois C Stoffels

Respondent

Procedural Posture

Urgent Application / Application for Enforcement of Custody Order and Striking of Leave to Appeal

Legal Issues

  1. 1 Whether the respondent's application for leave to appeal should be struck from the roll due to abuse of process.
  2. 2 Whether the respondent must comply with the custody and access orders previously granted by the court.
  3. 3 Whether the respondent's conduct constitutes forum shopping and an attempt to evade the court's orders.

Ratio Decidendi

The court found that the respondent, Stoffels, engaged in forum shopping and attempted to evade the consequences of the Northern Cape High Court's custody order by seeking conflicting relief in the Western Cape High Court. The respondent's conduct was deemed an abuse of process and a deliberate attempt to frustrate the execution of the court's judgment. The court held that the application for leave to appeal was a mere subterfuge and should be struck from the roll. The original custody and access orders must be enforced, and the respondent is ordered to deliver the minor child to the applicants within seven days, failing which the Sheriff is authorised to intervene. The respondent's...

Court Disposition

Application granted. Leave to appeal struck from the roll. Custody and access orders enforced. Costs awarded against respondent on attorney and client scale. Leave granted for contempt proceedings.

Orders

  • The respondent's application for leave to appeal is struck from the roll with costs. Re-enrolment only upon substantive application and good cause shown.
  • The respondent is ordered to deliver the minor child 'C' to the applicants' home in Keimoes, Northern Cape, within seven days of this order. Failing compliance, the Sheriff of the Western Cape is authorised to remove the child from the respondent and hand her over to the applicants.