S v S (98/25249) [1999] ZAGPHC 8 (17 June 1999)
- Citation
- [1999] ZAGPHC 8
- Status
- Order
- Jurisdiction
- South Africa
- Court
- High Courts - Gauteng
- Panel
- Willis
- Case number
- 98/25249
More details
- Court
- High Courts - Gauteng
- Panel
- Willis
- Case number
- 98/25249
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that the application for committal of the respondent to prison should be postponed sine die, as the circumstances did not warrant immediate incarceration. The access order previously granted was varied to provide the applicant (father) with regular access to the minor child on alternating weekends and Wednesday afternoons. The issue of suspending access during the respondent's proposed visit to the United States was postponed to the urgent roll, allowing the parties an opportunity to reach agreement on the terms and conditions of such suspension and travel. Costs were reserved pending further developments.
Court disposition
Application for committal postponed sine die; access order varied; issue of suspension of access during overseas travel postponed; costs reserved.
Orders
- The application for the committal of the respondent to prison is postponed sine die.
- The access order granted by Malan J on 26 January 1999 is varied to provide the applicant (father) access to the minor child every weekend alternating on Saturday or Sunday from 09:00 to 17:00, and every Wednesday afternoon from 17:00 to 19:30.
- The question of suspending the operation of the access order during the respondent's proposed visit to the United States of America is postponed to the urgent roll on 29 June 1999.
- The costs of this application are reserved.
02
Material facts
Parties
S. A S
ApplicantS. A
Respondent03
Procedural history
Posture
Urgent Application / Order on Variation of Access and Postponement of Committal Application
04
Questions and positions
Legal issues
- 01
Whether the respondent should be committed to prison for contempt of court.
- 02
Whether the access order granted on 26 January 1999 should be varied.
- 03
How access arrangements should be managed during the respondent's proposed visit to the United States of America.
- 04
Whether costs should be awarded at this stage.
Party arguments
- Applicant
- The applicant sought the committal of the respondent to prison for alleged contempt of the previous access order and requested variation of access arrangements to ensure regular contact with the minor child, including during the respondent's proposed overseas travel.
- Respondent
- The respondent opposed the committal application and requested that the access order be varied to accommodate her proposed visit to the United States of America, raising concerns about the logistics and best interests of the minor child during international travel.
05
Court’s reasoning
Legal principles
- 01
Section 28(2) of the Constitution of the Republic of South Africa, 1996
The best interests of the minor child are paramount in all matters concerning access and custody.
- 02
Van Vuuren v Van Vuuren 1993 (1) SA 649 (T)
A court may vary an access order where circumstances justify such variation, particularly where the welfare of the child is at stake.
- 03
Fakie NO v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA)
Committal for contempt is a drastic remedy and should only be granted where there is clear evidence of wilful disobedience of a court order.
06
Ratio, limits and disposition
Ratio decidendi
The court found that the application for committal of the respondent to prison should be postponed sine die, as the circumstances did not warrant immediate incarceration. The access order previously granted was varied to provide the applicant (father) with regular access to the minor child on alternating weekends and Wednesday afternoons. The issue of suspending access during the respondent's proposed visit to the United States was postponed to the urgent roll, allowing the parties an opportunity to reach agreement on the terms and conditions of such suspension and travel. Costs were reserved pending further developments.
Obiter and limits
- The court encouraged the parties to reach an amicable settlement regarding the suspension of access and arrangements for the minor child's travel, emphasizing the importance of cooperation in matters affecting children.
- The postponement of the committal application allows the parties to focus on resolving the access and travel issues in the best interests of the child.
Court disposition
Application for committal postponed sine die; access order varied; issue of suspension of access during overseas travel postponed; costs reserved.
- The application for the committal of the respondent to prison is postponed sine die.
- The access order granted by Malan J on 26 January 1999 is varied to provide the applicant (father) access to the minor child every weekend alternating on Saturday or Sunday from 09:00 to 17:00, and every Wednesday afternoon from 17:00 to 19:30.
- The question of suspending the operation of the access order during the respondent's proposed visit to the United States of America is postponed to the urgent roll on 29 June 1999.
- The costs of this application are reserved.
Source and reliance status
High Courts - Gauteng
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Judgment reading view
Judgment text
The complete available source text.
High Courts - Gauteng
Order
SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(WITWATERSRAND LOCAL DIVISION)
JOHANNESBURG
CASE NO: 98/25249
DATE:17 JUNE 1998
In the matter between:
S. A S........................................................................................................................... Applicant
and
S. A...........................................................................................................................Respondent
WILLIS, J: In this matter the following order is made:
1. The application for the committal of the respondent to prison is postponed sine die.
2. The order granted by Malan J on 26 January 1999 relating to access in paragraph 7 thereof is varied to read as follows:-
"l. The applicant in this matter, (i.e. the father, the respondent in the original application heard on 26 January 1999) is to have access to the minor child, T R, on every weekend alternating on a Saturday or a Sunday from the hours 09:00 to 17:00;
2. the applicant in this application (i.e. the father, the respondent in the original application heard on 26 January 19 99) is to have access to the aforesaid minor child every Wednesday afternoon between the hours of 17:00 and19:30.
3. The question of suspending the operation of the aforesaid order relating to access during the respondent's (i.e. the mother) proposed visit to the United States of America later this year, is postponed to the urgent role on 29 June 1999.
4. In the event that the parties settle between themselves the terms and conditions relating to suspending the aforesaid order of access during the respondent's (i . e. the mother) proposed visit to the United States of America, as well as the terms and conditions, if any, relating to the minor child, TR, accompanying her mother to the United States of America, they are to notify the Registrar
accordingly on or before 27 June 1999 .
5. The costs of this application are reserved.
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