Aarloo v Dippenaar and Another (3184/2024) [2024] ZAECPEHC 57 (17 September 2024)

Aarloo v Dippenaar and Another (3184/2024) [2024] ZAECPEHC 57 (17 September 2024)

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION, GQEBERHA)

 

CASE NO: 3184/2024

 

In the matter between:

 

NADIA AARLOO Applicant

 

and

 

ANDRIES PETRUS DIPPENAAR 1st Respondent

 

THE HONOURABLE MAGISTRATE MITHA

N. O 2nd Respondent

_____________________________________________________________

JUDGMENT

_____________________________________________________________

Zono AJ

 

 

 

 

Introduction

 

[1] The applicant seeks a relief that is set out in two parts of the notice of motion. The first part is a relief sought on urgent basis in the following terms:

 

1. That the Rules of court, insofar as the prescribed time limits for the filing of notices and affidavits, be dispensed with and that the relief sought in the first part of this application be heard on an urgent basis, as provided for in Uniform Rule 6(12).

 

2. That, pending finalization of an investigation by the offices of the family advocate, the parties’ minor child, […] (“minor”), shall:

 

2.1 forthwith be placed in the applicant’s primary care;

 

2.2 alternatively, have contact with the applicant as follows:

 

2.2.1 Every second month for a period of ten consecutive nights with such contact to take place either at a farm, known as […] or at the farm of the applicant’s father near Plettenberg Bay, with the applicant being responsible for the minor’s transportation and the costs occasioned thereby; and

 

2.2.2 daily video contact from 19h00 until 19h30.

 

3. That the parties be granted leave to supplement their papers upon receipt of the family advocate’s report.

 

4. That those respondents who oppose the application shall pay the costs of the application, jointly and severally, the one paying the other to be absolved, with such costs to include counsel’s costs, taxed on scale B.

5. Such further and/or alternative relief as the above honourable court may deem fit.”

 

[2] It is this application or relief I was seized with as it was brought on an urgent basis.

 

[3] The applicant describes herself as an adult female residing on a farm known as […] which is approximately 1280 km from Gqeberha. The first respondent is an adult male employed at […] in Gqeberha. The minor child is staying in Gqeberha within the area of jurisdiction of this court.

 

[4] The essence of the first part of the application is to allow the applicant to exercise primary care and or contact to the minor child in the area the child is not accustomed to, which is the area of residence of the applicant which is in Limpopo province and at a place near Plettenberg Bay, Western Cape.

 

[5] The applicant and the first respondent are parents of the minor child, […] who was born on […] who is now three years old. They started their romantic relationship after the applicant got divorced with his previous husband, with whom she had two children. The applicant and first respondent started their relationship on the footing of an online dating. The applicant was residing in George and first respondent in Cape Town. They later agreed to live together in Cape Town. Things went sour between the applicant and the first respondent as a result of that the applicant gave up on their relationship and ended up confiding to her new boyfriend about the challenges she had with the first respondent.

 

[6] Apparently the first respondent approached the children’s court for an order in terms of which the first respondent is granted the primary care of the minor child and the applicant was advised of the date of hearing of the applicant, it being the 24th of October 2023. Apparently there were other court appearances in the children’s court made in the absence of the applicant. However, the applicant appeared in court on 24th October 2023 before the second respondent, the Magistrate.

 

[7] In parenthesis for what I will be dealing with hereinafter the applicant posits a case against the Magistrate that she was visibly biased as she would talk to the first respondent about matters totally unrelated to the one that was serving before her, for instance, she would offer to buy first respondent’s house, and in those instances the applicant would feel excluded during the course of their discussion.

 

[8] The applicant contends that on 24 October 2023 she made an application to the Magistrate to have contact to the minor child during December 2023 holidays. That application was not granted and the matter was postponed to 18th January 2024. On 18th January 2024 the applicant made a similar application and the Magistrate refused same on the basis that the Magistrate could not make that determination without an investigation by a social worker having been made on the boyfriend’s place as it is apparently the place where the applicant was or is staying. In persuading the Magistrate, the applicant stated that the minor child would be contacted at Plettenberg Bay at applicant’s father’s farm. That did not make any difference. The application remained refused. The matter was postponed to 20th February 2024. Boyfriend’s farm was visited by social workers for investigation during February 2024.

 

[9] On 20th February 2024 the Magistrate granted an order in terms of which the applicant was permitted to take the minor child into her care for three nights at applicant’s father’s farm, Plettenburg Bay under applicant’s father’s supervision. Apparently the matter was postponed to 23rd February 2024 which is the day the applicant had to return the child. On 23rd February 2024 the matter was postponed to 30th July 2024. On 27th July 2024 the applicant was furnished by the family advocate with what applicant understood to be a report. It was indicated in the document that postponement would be sought in court for hearing to be on 06th September 2024. However, according to the communication from the social worker the applicant was curiously advised of the postponement date to be 25th September 2024.The view the applicant takes of the children’s court’s matter is that those proceedings are irregular.

 

[10] The matter is not finalized because there is no report by the family advocate. It appears as well in the founding affidavit that the applicant was served with children’s court’s application.

 

[11] The application is opposed by the first respondent. The Magistrate is not opposing the matter. There is no indication in the papers that the Magistrate was served with the papers. The first respondent has filed the answering affidavit. I intend to deal with the common cause facts made between the parties.

 

Common Cause Facts

 

[12] The first respondent makes a common cause with the applicant that, in the children’s court there is not only a litigation that is pending under case No 14/14-112/2023, but the proceedings are also about the primary care of the minor child between the applicant who is the respondent in the children’s court and first respondent who is the applicant therein. In addition to that the applicant and first respondent make common cause that, orders upon application by the applicant were made, refusing the applicant contact to the minor child. It was pertinently ordered by the magistrate that the minor child should remain with the first respondent.

 

[13] Adv Botha, the family advocate was in court and pertinently confirmed that her office is busy with the report to be submitted in the children’s court under case No14/14-112/2023. The proceedings in the children’s court concerns primary care of the minor child. Her office seeks to report as to what is in the best interests of the minor child. Adv Botha did not gainsay that orders refusing applicant contact to the minor child were made in the Children’s Court on application by the applicant.

 

[14] Two issues that I perceive to be dispositive of the matter arise from the common cause facts foreshadowed above; Firstly, the effect and status of the court orders made in the children’s court refusing the applicant contact to the minor child. Secondly the common law defence of lis alibi pendens. I propose to deal with these issues separately in turn.

 

[15] However those issues are not pertinently raised as points in limine in the papers. It is however clear that they are apparent on the papers and the parties were equally invited to argue those points. Both parties, especially the applicant, exhaustively argued the points as I will refer to applicant’s submissions hereinafter.

 

[16] If I may digress, the court is obliged to mero motu raise the points of law and require the parties to deal therewith. In Cusa1 Ngcobo J held as follows:

67. These principles are, however, subject to one qualification. Where a point of law is apparent on the papers, but the common approach of the parties proceeds on a wrong perception of what the law is, a court is not only entitled, but is in fact also obliged, mero motu, to raise the point of law and require the parties to deal therewith. Otherwise, the result would be a decision premised on an incorrect application of the law. That would infringe the principle of legality. Accordingly, the Supreme Court of Appeal was entitled mero motu to raise the issue of the Commissioner’s jurisdiction and to require argument thereon. However, as will be shown below, on a proper analysis of the record, the arbitration proceedings in fact did not reach the stage where the question of jurisdiction came into play.”

 

[17] In Fischer 2Theron JA added her voice in the following terms:

13. Turning then to the nature of civil litigation in our adversarial system it is for the parties, either in the pleadings or affidavits, which serve the function of both pleadings and evidence, to set out and define the nature of their dispute and it is for the court to adjudicate upon those issues. That is so even where the dispute involves an issue pertaining to the basic human rights guaranteed by our Constitution, for ‘it is impermissible for a party to rely on a constitutional complaint that was not pleaded’. There are cases where the parties may expand those issues by the way in which they conduct the proceedings. There may also be instances where the court may mero motu raise a question of law that emerges fully from the evidence and is necessary for the decision of the case. That is subject to the proviso that no prejudice will be caused to any party by its being decided. Beyond that it is for the parties to identify the dispute and for the court to determine that dispute and that dispute alone.” The same principle was affirmed by the Constitutional Court3. I find solace in the parties’ respective affidavits that the issue of the children’s court proceedings for parties’ primary care to the minor child’s and the court orders granted by the children’s court during the months of February 2023, March 2023, October 2023 and February 2024 fully emerged from the evidence and those issue are necessary for decision of the matter.

 

The effect of the orders of Children’s court

 

[18] It is not in dispute, as alluded above, that in February 2023, March 2023, October 2023 as well as in February 2024 the children’s court granted orders in terms of which the applicant, who is the respondent in those proceedings, was denied access or contact to the minor child. Slight inclarity is with regard to the dates of those court orders. The matter of the fact is that such court orders were granted in those months pursuant to applicant’s incessant applications for access or contact to her minor child.

 

[19] When invited to deal with the existence and binding effect of the court orders, applicant’s Counsels trivialized those orders as “legal niceties and procedural strictures” which should not frustrate the quest to determine the best interests of the minor child. She submitted that minor child’s best interests is of paramount importance and should be awarded by this court as the minor child’s upper guardian. For the aforesaid propositions she relied on the case of this Division of MB v NB (CA&R60/2017) [2018] ZAECGHC 74 (28 August 2018).

 

[20] Let me digress and state that applicant’s Counsel was positively invited to point out to the court, where in the papers interests of the minor child are foreshadowed. That invitation was made in full realization that applicant’s papers fully canvass the interests of the applicant, which in these proceedings play no role. Applicant’s Counsel was at pains to find in the applicant’s papers where the interests of the minor child is canvassed. I draw Counsel from the words of King J in the case of Mc Call4 who shared the following sentiments:

“In view of the unremitting enmity between the parties, it is as well to remind them that the court is determining what is in the best interests of their child. The court is not adjudicating a dispute between antagonists with conflicting interests in order to resolve their discodance. The court’s concern is for the child.”

 

It is axiomatic that the family advocate’s report has not been filed as the family advocate is still in the process of conducting investigations for the children’s court. It is with the Assistance of the Family Advocate’s report that the Court can be able to decide what is in the best interests of the minor child.

 

[21] The first port to call when considering the integrity of the court order is the Constitution itself. Chapter 8 of the Constitution provides for the courts and administration of justice. Of importance is Section 165(5) of the Constitution which provides that:

(5) An order or decision issued by a court binds all persons to whom and organs of state to which it applies.”

 

[22] Undoubtedly the court orders in the children’s court are extant and existent. In addition to the above those court orders are unchallenged. The court orders aforesaid have not lost their binding force and they are still binding to the applicant as she is the party against whom they were granted. Ignoring a validly granted court order negatively impairs the administration of justice. So too when seeking and obtaining a court order contradicting an extant validly granted court order inherently imperils the administration of justice. By far that conduct, as it violates the purpose and the spirit of chapter 8 of the Constitution, is patently unconstitutional.

 

[23] Section 2 of the Constitution provides for the Supremacy of the Constitution in the following terms:

This Constitution is the Supreme Law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled.”

 

[24] Applicant’s conduct of ignoring court orders, which conduct is antithetical to chapter 8 of the Constitution in general, which provides for the administration of justice and section 165(5) of the Constitution to be specific, which require obedience to the court order by parties thereto, is patently invalid and unconstitutional. Our Constitutional democracy is founded on the Supremacy of Constitution and the Rule of law.5

 

[25] It is a basic principle of our law that a court can never lend its aid to the enforcement of an illegal act.6 Breaches of Constitution are illegal in nature. To allow parties not to be bound by validly granted court orders that are still extant and existent is violation of the constitutional provisions7 and the founding values of our constitutional democracy.8 It is against the spirit of proper administration of justice that litigants can willy-willy decide not to be bound by valid extant court orders. On those grounds the court cannot lend its aid to the enforcement of that conduct. This court cannot encourage litigants to disobey orders of the lower courts.

 

[26] All orders of court, whether correctly or incorrectly granted have to be obeyed until they are set aside.9An order of court of law stands until set aside by a court of competent jurisdiction.10Until that is done, the court order must be obeyed even if it may be wrong.11There is a presumption that judgment is correct.12A person may be barred from approaching the court until he has obeyed an order of court that has not been properly set aside.13 This democracy cannot survive if court orders are shunned and tramped14.

 

[27] The reason, in my view why litigants must be barred from approaching a court other than the one which granted the court orders, when the court orders have not been successfully challenged,15is simple that such conduct is tantamount is to a forum shopping. Approaching another court for a similar relief when the validity of the court orders of the children’s court are not impugned and there is seemingly no intention of impugning them, leads to an ineluctable conclusion that a litigant is engaged in a forum shopping which conduct is unacceptable. A court order contradicting validly granted court orders of the children’s court is undesirable and it adversely affects legal certainty.16

 

[28] For, it is well settled in our law that until a decision is set aside by a court in proceedings for judicial review it exists in fact and it has legal consequences that cannot simply be overlooked.17 Although this dictum was used in the context of administrative actions; by parity of reasoning it applies with equal force or more to court orders or judicial pronouncements. The legal consequences that must naturally follow when the children’s court has granted court orders permitting the first respondent to be with the minor child, contemporaneously and quintessentially denying the applicant access and contact to the minor child is that the applicant is prohibited and precluded from contacting the minor child until those orders are successfully set aside by a court of competent jurisdiction. A contradictory order without setting aside those court orders would engender confusion, inconsistency and legal uncertainty. On this ground alone, applicant must be non-suited. This applicant must fail.

 

[29] I am mindful of the fact that the applicant is positing a case that, proceedings in the children’s court are irregular, however they are not challenged.18 Even though courts do not have the purse or sword to enforce their orders, the effect of their decision is binding in law. The order is binding, irrespective of whether or not it is valid until set aside. Allowing parties to ignore court orders would shake the foundations of the law, and compromise the status and constitutional mandate of the courts. The duty to obey court orders is the stanchion around which a state founded on the Supremacy of the Constitution and the Rule of Law is built19. It is reiterated that this application must fail on this ground alone.

 

Lis Alibi Pendens

 

[30] Even if I am wrong in the assessment I made and conclusion I reached above, there is yet another reason why this application cannot succeed. It has been adumbrated above that an application of a similar nature was instituted in the children’s court involving similar parties for the same relief. The subject matter of that application is the same minor child.

 

[31] I am mindful of the fact that a court is not entitled to raise the issue of lis pendens unless the defendant pleads it specifically.20However, in this case both parties equally pleads that there is pending litigation in the children’s court for the same relief about the same minor child involving the same parties. I accordingly find that lis pendens is pleaded by reference by both parties to Case No 14/14-12/2023. Lis pendens is sufficiently pleaded. The manner in which it is pleaded relates only to the question of form. The fact that it is not pleaded as a point of law or point in limine is immaterial. It is a fundamental principle of our law that form must not be put above substance.

 

[32] The requisites of the plea of lis pendens are the following:21

“(a) Pending litigation

(b) Between the same parties or their privies

(c ) based on the same cause of action

(d) in respect of the same subject matter.”

 

[33] In this matter the applicant seeks to be granted primary care of the minor child. It is common cause that in January 2023 the first respondent approached the children’s court for an order in terms of which he is granted primary care of the same minor child. That application is not finalized. I have no doubt in my mind that this litigation is pending before the children’s court. First requirement is satisfied.

 

[34] In the Children’s Court the first respondent herein is the Applicant and the Applicant herein is the respondent. Positioning of the parties in the litigation is immaterial. What is upper most is that the litigation is between the same parties. The litigation is pending between the same parties. That is borne out by the fact that the first respondent instituted the proceedings in the children’s court for the same relief, to wit, primary care of the minor child. The second requirement is satisfied.

 

[35] The same child who is the subject matter of the proceedings in the Children’s Court is the one who is the subject matter of these proceedings and he constitutes the same cause of action in these proceedings. The plea of lis pendens in respect of the primary care of the minor child is surely successful. I may in passing state that during argument the applicant’s Counsel indicated that she is abandoning the relief for primary care.

 

Conclusion

 

[36] I have dealt sufficiently above with the court orders and the nature of the orders that were granted in the Children’s Court that they were about the access and contact of the applicant to the minor child. The existence of those court orders is pivotal to the determination of an alternative application or relief herein. I reiterate that it cannot succeed.

 

[37] No family advocate’s report yet has been compiled for the court to properly adjudicate this matter. The issue of the minor child’s best interests cannot properly be determined without the report.

 

[38] The pending litigation in the children’s court coupled with the existence of the court orders therein makes it hard, if not impossible for this court to grant any order sought in the notice of motion. Accordingly, this application stands to fail in its entirety.

 

Costs

 

[39] Both the applicant and first respondent request this court to grant costs in their favors respectively, subject to the fate of the application. Therefore, costs remained to be determined.

 

[40] In cases of this nature there is no winner and no looser.22 The contest is or was about the best interests of the minor child.23 For that reason, it would be proper to make no order as to costs.

 

Order

 

[41] In the result I grant the following order:

 

[41.1] The Rules of Court relating to the time limits for the filing of notices and affidavits are hereby dispensed with and that the relief sought in the first part of this application is hereby heard on an urgent basis as provided for in Uniform Rule 6 (12).

 

[41.2] The application is dismissed.

 

[41.2] There shall be no order as to costs.

 

 

 

____________________

A S Zono

Acting Judge of the High Court

 

 

 

 

 

APPEARANCES:

 

For the applicant : Adv Gagiano

Instructed by : ROS INC.

1 Caledon Street

George

Tel: 044 0501 874

Email:caria@roosinc.co.za

Ref: Ms C Vermeulen

C/O JOHANETT JANSE VAN RENSBURG ATTORNEYS

3 Cleeve Road

 

 

For the 1st Respondent : Adv Freeman

Instructed by : Williams Hunt

Moffet Retail Park

Knight Street

Fairview

Gqeberha

 

 

For the 3rd Respondent : Adv Botha

THE FAMILY ADVOCATE

Bird Street

Central

Gqeberha

Ref: Adv Botha

 

Date heard : 03 September 2024

Date Delivered: : 17 September 2024

1 Cusa v Tao Ying Metal Industries and others 2009 (2) SA 204 (CC) Para 67

2 Fischer v Ramahlele 2014 (4) SA(SCA) at 620C -621C Para 13

3 Public Protector v South African Reserve Bank 2019 (6) SA 253 (CC) Para 234.

4 McCall v McCall 1994 (3) SA 201 (CPD)

5 Section 1(C ) of the Constitution

6 Cools Ideas 1186 CC v Hubbard and Another 2014 (4) SA 474 (CC) Para 77

8 Section 1(C ) of the Constitution

9 Master of the High Court, Northern Gauteng High Court, Pretoria v Motala 2012 (2) SA 325 (SCA) Para 11

10 Bezuidenhout v Petensie Sitrus Beherend 2001(1) SA 224 at 229 B-C; MEC for Economic Affairs, environmental and tourism v Krusenga 2018 (6) SA 264 CKHC at 227C

11 Culverwell v Beirra 1993 (4) SA 490 (W)at 494 A-C

12 Makings v Makings 1958 (1) SA 338 (A) at 349

13 Minister of Home Affairs v Somali Association of South Africa 2015(3) SA 545(SCA)at 570F-571A

14 EM V Minister of Home Affairs and others (3088/2024) [2024] ZAECMHC 65 (27 August 2024) Para 55; and cases referred thereto

15 By way rescission, review and or appeal

16 Matsinhe v Minister of Home Affairs Others (3088/2024) [2024] ZAECMHC 65 (27 August 2024) Para 56

17 Ouderkraal Estates (Pty) Ltd v City of Cape Town and others 2004 (6) SA 222 (SCA) Para 26; SABC and Others and others v DA and others 2016 (2) SA 522 (SCA) Para 45

18 Rule 53(1) of the Uniform Rules

19 Department of Transport and others v Tasima (Pty) Limited 2017 (2) SA 622) (CC) 180 and 183 and footnote thereto

20 Kerbel v Kerbel 1987(3) ALL SA 33 (W)’ 1987 (1) SA 562 (W)

21 Harms : Amlers Precedents of Pleading , Sevenths edition.

22 N V M; In re M (1278/2016) [201] ZAEM 3( 5 July 2016) Para 28 per Mbenenge J as he then was, now JP

23 Mc Call v Mc Call 1994 (3) SA 201 (C) A 204 I

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