Pretorius v Pretorius (168/2010) [2011] ZANWHC 46 (25 August 2011)

IN THE NORTH WEST HIGH COURT

MAFIKENG

CASE NO.: 168/2010

In the matter between:

RAYMOND DANIEL PRETORIUS ….............................................APPLICANT

and

HENDRINA PRETORIUS …........................................................RESPONDENT

DATE OF HEARING: O4 AUGUST 2011

DATE OF JUDGMENT: 25 AUGUST 2011

FOR THE APPLICANT: ADV PRETORIUS

FOR THE RESPONDENT : MR WESSELS

JUDGMENT

LANDMAN J:

[1] The applicant and the respondent are married to each other but are in the process of being divorced.

[2] On 3 June 2010, this Court granted a Rule 43 order, under case number 776/2010, which, inter alia, granted the applicant contact with Dylan his son. The contact was structured as follows:

(a) Mondays, Wednesdays and Fridays from 08h00 to 13h00; and

(b) Every alternative weekend from 08h00 to 13h00.

[3] The applicant says he had been seeing Dylan strictly in accordance with the order: He has been handing Dylan over to the respondent’s

parents at their residence at 13h00 on the days set out in the order. The respondent was at work until 17h00.

[4] The applicant seeks to vary the existing contact order because he alleges that:

(a) the respondent’s legal team’s is unco-operative in scheduling a pre-trial conference and failing to attend a conference and thereby are preventing the action from proceeding to finality;

(b) Dylan (now 21 months old), is almost a year older since the order was granted; and

(c) The Family Advocate’s report has come to hand subsequent to the granting of the order.

[5] He seeks an order that he be granted contact to Dylan, and that the contact be structured as follows:

5.1 from the date of this order until Dylan reach the age of 24 months:

5.1.1 Mondays, Wednesdays and Fridays 08h00 until 17h00;

5.1.2 Alternate Saturdays and Sundays from 08h00 until 17h00;

5.1.3 Dylan’s birthday (Monday 11 July 2010) from 08h00 until 17h00;

5.1.4 Father’s day from 08h00 until 17h00.

5.2 from the age of 24 months until Dylan reach the age of 36 months:

5.2.1 Mondays, Wednesdays and Fridays from 08h00 until 17h00;

5.2.2 Alternate weekends from Saturday at 08h00 until Sunday at 17h00;

5.2.3 the right to telephonic contact with Dylan at all reasonable times;

5.1.4 25 December from 08h00 until 14h00;

5.2.5 26 December from 08h00 until 14h00;

5.2.6 1 January from 08h00 until 14h00;

5.2.7 Dylan’s birthday (11 July) from 08h00 until 17h00, should Dylan’s birthday not fall on any of the days in 5.2.1 and 5.2.2 above;

5.2.8 the applicant’s birthday from 08h00 until 17h00; and

5.2.9 Father’s day from 08h00 until 17h00.

[6] The respondent’s answer is brief and to the point. She says:

(a) There has been no material change which could justify a variation of the order. The Family Advocate’s report has been available for the past year.

(b) The Family Advocate’s report deals with the factual situation which prevailed when the order was granted.

(c) If the applicant is correct that she is delaying the finalization of the main trial, which she denies, there are suitable remedies to address such complaints.

[7] Rule 43(6) provides that:

“The court may, on the same procedure, vary its decision in the event of a material change taking place in the circumstances of either party or a child, or the contribution towards costs proving inadequate.”

[8] Erasmus Superior Court Practice B1–318 [service issue 17/2002] says:

“‘In the event of a material change.’ This subrule must be strictly interpreted and employed only in the circumstances set out herein, ie where there has been a material

change in the circumstances of either party or a child, or where a contribution towards costs proves inadequate. Where an application is not necessarily an abuse of the court process but unreasonable the court may exercise its discretion against the applicant and dismiss the application.”

[9] In my view the provisions of Rule 43(6) should be strictly applied. It should not be necessary to revisit interim relief pending divorce unless there is indeed a material change in circumstances. Although, both as the upper guardian of minors and in accordance with the constitutional obligation to take into account and give primary to the best interest of a minor child, a court may vary an interim order even when there are no material changes. Here there has been no change in the circumstances of the parties save that the child is a year older. This is not, on the facts, a material change in circumstances. There are no good reasons to believe that the trial will be delayed so that the interim order will not suffice.

[10] The applicant has not made out a case for a variation of the order.

[11] In the result the application is dismissed with costs.

A A LANDMAN

JUDGE OF THE HIGH COURT

ATTORNEYS:

FOR THE APPLICANT: SMIT & STANTON

FOR THE RESPONDENT: STEFAN VAN RENSBURG ATT

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