M K v R K (168413/2013) [2013] ZAKZDHC 51 (27 September 2013)

M K v R K (168413/2013) [2013] ZAKZDHC 51 (27 September 2013)

The applicant was justified in bringing the urgent application for defined telephonic contact with the minor child, given the respondent's failure to facilitate such contact despite prior undertakings. However, the respondent consented to the substantive relief at the first hearing and consistently denied acting in bad faith or deliberately restricting access. The applicant failed to provide evidence refuting the respondent's denial, resulting in a dispute of fact that could not be resolved. The respondent's conduct did not warrant a punitive costs order, and the urgency of the application did not justify the limited notice given to the respondent. In the interests of fairness, the...

Citation
[2013] ZAKZDHC 51
Parties
Applicant: M K; Respondent: R K
Court
Kwazulu-Natal High Court, Durban
Jurisdiction
South Africa
Judgment Date
27 September 2013
Case Number
168413/2013
Procedural Posture
Urgent Application / Final Determination of Costs and Confirmation of Interim Relief
Outcome
The rule nisi is confirmed; the respondent is ordered to facilitate daily telephonic contact and pay costs up to 10 March 2013.
Judges
Thatcher
Legal Topics
Child Access, Interdict, Costs Award, Urgent Application
Family and Children Civil Procedure Child Access Interdict Costs Award Urgent Application

Case Brief

Summary, issues, holding and outcome

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Parties

M K

Applicant

R K

Respondent

Procedural Posture

Urgent Application / Final Determination of Costs and Confirmation of Interim Relief

Legal Issues

  1. 1 Whether the respondent deliberately restricted the applicant's telephonic access to the minor child.
  2. 2 Whether the applicant was justified in bringing the urgent application for defined telephonic contact.
  3. 3 On what scale and up to what date costs should be awarded to either party.

Ratio Decidendi

The applicant was justified in bringing the urgent application for defined telephonic contact with the minor child, given the respondent's failure to facilitate such contact despite prior undertakings. However, the respondent consented to the substantive relief at the first hearing and consistently denied acting in bad faith or deliberately restricting access. The applicant failed to provide evidence refuting the respondent's denial, resulting in a dispute of fact that could not be resolved. The respondent's conduct did not warrant a punitive costs order, and the urgency of the application did not justify the limited notice given to the respondent. In the interests of fairness, the...

Court Disposition

The rule nisi is confirmed; the respondent is ordered to facilitate daily telephonic contact and pay costs up to 10 March 2013.

Orders

  • The respondent is directed to ensure that the applicant shall have telephonic contact with the minor child, A, daily between 17h00 and 19h00 for not less than 10 minutes per call.
  • The respondent is interdicted and restrained from interfering with or limiting the telephonic contact.