Court name
High Court Main Division
Case number
APPEAL 244 of 2015
Title

Moor v McDonald (APPEAL 244 of 2015) [2015] NAHCMD 261 (11 April 2015);

Media neutral citation
[2015] NAHCMD 261
Coram
Geier J



















SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law and
SAFLII
Policy



REPUBLIC
OF NAMIBIA


HIGH
COURT OF NAMIBIA MAIN DIVISION, WINDHOEK


JUDGMENT


Case
no: A 244/2015


DATE:
04 NOVEMBER 2015


In
the matter between:


SAMANTHA
BAILLIE
MOOR
........................................................................................APPLICANT


And


JOHAN
HENDRIK
McDONALD..........................................................................1ST
RESPONDENT


MARTIE
McDONALD...........................................................................................2ND
RESPONDENT


Neutral
citation:
Moor v McDonald (A
244-2015) [2015] NAHCMD 261 (04 November 2015)


Coram:
GEIER J


Heard:
07 October 2015


Delivered:
04 November 2015


Flynote:
Appeal – Leave to appeal - Against order directing the
enrolment of the parties’ minor children in the hostel of a
private school pendente lite – Held that such order was akin to
a ruling and thus not appealable even with leave as
it
was not final in effect and was always susceptible to alteration by
the court of first instance or the Children’s Court; such order
also not definitive of the rights of the parties and did not have the
effect of disposing of, at least, a substantial portion of the relief
claimed in the main proceedings in the Children’s Court
.
Application for leave to appeal accordingly dismissed
with costs.


Summary:
The facts appear from the judgment.


ORDER


The
application for leave to appeal is dismissed with costs, such costs
to include the costs of one instructed- and one instructing counsel.


JUDGMENT


GEIER
J:


[1]
The first respondent to this urgent application for leave to appeal
had himself, a few days earlier, brought an urgent application,
seeking the interim variation of an agreement concluded with the
applicant governing the custody and maintenance of the parties’
three minor daughters, pending the institution and finalisation of an
application in the Children’s’ Court, through which he
had sought the interim placement of the two younger children into the
custody and care of their paternal grandmother as well as their
immediate enrollment and placement into the Edugate Academy and
hostel in Otjiwarongo.


[2]
After heated exchanges and argument wiser counsel prevailed and the
parties were able agree on most aspects that would now - pending the
outcome of the proceedings to be instituted in the Children’s
Court - regulate the affairs of their minor children on an interim
basis.


[3]
More particularly the parties had agreed that custody and access to
their children would, in essence, continue to be regulated in terms
of their original agreement, as concluded on 19 September 2013. 
This meant that the applicant would, for the meantime, retain custody
of the children.


[4]
In addition the parties specifically also agreed - which agreement
they asked to be embodied in the courts order - that:


1.
The status quo pertaining to Jessica Patricia McDonald, the parties’
eldest daughter, remains, that is to mean that Jessica will be
allowed to complete her schooling at Edugate Academy in Otjiwarongo,


1.
The two younger children
of the parties [K……..] [M…….] [M………]
and [S…….] [S….…] [M……..]
are to remain enrolled at the Windhoek Afrikaanse Privaatskool (WAP),


2.
The access to all the
aforesaid minor children of the parties is restored to the applicant
with immediate effect.’


[5]
The parties also gave each other certain undertakings which they
asked to be recorded.  These undertakings where aimed at
ensuring the emotional wellbeing of the children and at reducing
their exposure to parental conflict.


[6]
The only issue on which the parties could not agree was whether their
two younger daughters, K and S, should also - and in the interim - be
placed in the WAP hostel, during weekdays – The parties thus
where
ad idem that the
court determine this aspect, as the only outstanding issue, for them.


[7]
After hearing argument on this limited issue the court ordered, on 21
September 2015, that the two younger children of the parties, K and
S, be enrolled in the hostel of WAP as of 28 September 2015, as the
court considered and found that this would be in the best interest of
the two younger children, as this would remove them out of the middle
of the parental conflict.


[8]
The applicant reacted to this ruling by launching her own urgent
application on 25 September 2015.  In this application she now
sought the committal of the 1
st
respondent for contempt of court, as well as certain protection
orders against him, including orders that the respondent’s
rights of access to his children be removed forthwith. She also
requested that her application for leave to appeal the court’s
order of 21 September 2015 be heard on an urgent basis, at the same
time seeking the suspension of the court’s order pending the
finalization of the appeal.


[9]
This second urgent application was heard on 30 September 2015.


[10]
This application had in the meantime become opposed in which, by way
of a counter application, the first respondent, inter alia, also
similarly sought the committal of the applicant for contempt of
court, as it had become clear by then that the applicant had not
enrolled K and S at the hostel at WAP, as ordered and that she had
also not complied with the access arrangements, as ordered, by
refusing the first respondent access to his children altogether.



[11]
Due to the applicant’s blatant non-compliances with the court’s
order - and for the reasons contained in a separate judgment - the
court insisted that the applicant first comply with the court’s
orders, before she would be heard. Her urgent application was thus
struck from the roll until such time that she had purged her
contempt. The court however allowed the applicant to proceed with her
case, on condition that she first provide proof, on affidavit, that
she had complied with the court’s order of 21 September 2015.


[12]
The applicant subsequently removed the obstacle, which had so
prevented her from being heard, by filing the requisite affidavit, on
the afternoon of 06 October 2015, after 16h00, in which she now
confirmed the enrolment, and placement, of K and S, in the hostel, as
of 05 October 2015.


[13]
This then cleared the way for the hearing of the applicant’s
application for leave to appeal on an urgent basis on the following
morning.


[14]
It should be mentioned that the parties had, in the interim, also
agreed that their separate quests, to have each other committed for
contempt of court and ancillary relief, be deferred for the moment in
that such relief would now be sought in the normal course. In terms
of this agreement the respondents also undertook not to oppose the
issue of urgency, as far as this application for leave to appeal was
concerned.


[15]
It is against this background - and a further interlocutory episode -
which delayed the hearing of this application - and which resulted in
an adverse costs order against the applicant’s legal
practitioner of record - that his matter eventually became to be
heard on 7 October 2015. 


[16]
Counsel for the applicant contended that the applicant could only
appeal the court’s ruling, to place the younger children, in
the hostel at WAP, with leave.


SUBMISSIONS
ON BEHALF OF RESPONDENTS


[17]
Counsel for the respondents argued that the order of 21 September
2015, on the other hand, was not appealable as it did not have the
hallmarks of an appealable decision.  He relied in this regard
on the Supreme Court decision of
Shetu
Trading CC v Chair, Tender Board of Namibia,
[1]
 
which
had approved and applied the test formulated by the South African
Appellate Division in
Zweni
v Minister of Law and Order
[2]
and from
which case law it appears that an appealable ‘judgment or
order’ has three attributes:


‘ … it
must be final in effect and not susceptible to alteration by the
court of first instance; it must be definitive of the rights of the
parties; and it must have the effect of disposing of at least a
substantial portion of the relief claimed in the main proceedings.’
[3]


[18]
In written heads of argument it was submitted further that:


In
light of this the immediate investigation at hand would then
naturally have to be an analytical approach to the instant judgment
in respect to the three attributes-


a)
The judgment is not final as it operates in the interim pending the
finalisation of the custody matter in the chilren’s court,
therefore at the very least it is susceptible to change in that
court. In any event the judgment operates pendent lite those
proceedings.  Section 5(1) of the Children Status Act, Act 6 of
2006 puts the above contention in perspective in that it provides as
follows-


Despite
anything to the contrary contained in any law, a children’s
court may, if circumstances have changed, alter an order of the High
Court pertaining to custody, guardianship or access made in
connection with a divorce or in any other proceedings.





b)
The judgment of 21 September 2015 is certainly not definitive of the
parties’ rights, in that it only provides for an interim
arrangement as to the access and living arrangements of the minor
children.  It is common cause that the right to custody of the
minor children, which is the nub of the relief sought by the first
and second respondent (in their application in convention) will only
be decided in the children’s court.  This court in its
judgment of 21 September 2015 has not dealt with the issue of
custody.





c)
Finally it is clear that the relief sought in the main proceedings
(those instituted in the children’s court) is that of custody
and control of all three of the children.  This court has not
even dealt with that relief and has definitely not disposed of a
substantial portion thereof.





For
these reasons I submit that this is not an appealable judgment. 
In any event even if this court was to grant leave to appeal that
does not mean that the Supreme Court will hear the appeal, in this
regard the court in Shetu Trading CC went on to hold that-





The
fact that leave to appeal is granted by a lower court does not put an
end to the issue whether a judgment or order is appealable.  The
question of appealability, if an issue in the appeal, remains a
question for the appellate court to determine.  If it decides
that, despite the fact that leave to appeal has been granted by the
lower court, the judgment or order is not appealable, the appeal will
still be struck from the roll.’


[19]
During oral argument Mr Ravenscroft-Jones, for the respondents,
re-emphasized that the order, in respect of which the applicant was
seeking leave to appeal, did not fit the said set criteria for
appealable judgments or orders.  He pointed out that if the
respondents would have failed to institute their intended proceedings
in the children’s court, the order of 21 September 2015 would,
automatically, have lapsed. That order had also, and in any event,
never finally varied the existing custody agreement of the parties,
which continued to be in place, until such time that the Children’s
Court or the High Court would possibly change them.  All that
had been done was to regulate one issue on a temporary basis. 
The order of 21 September 2015, which might have restricted the
custodian rights of the applicant temporarily, had however not been
diminished otherwise.  In any event, the order of 21 September
2015 was susceptible to alteration at any time by the High Court,
also the Children’s Court could change such order.  He
emphatically submitted that the order of 21 September 2015 had
certainly not disposed of ‘at least a substantial portion of
the relief claimed in the main proceedings’.


SUBMISSIONS
ON BEHALF OF APPLICANT


[20]
Mr Mouton, in his heads of argument, filed of record, for the
applicant, initially failed to address these aspects altogether.


[21]
Subsequently, and during oral argument however, he addressed the
three attributes relating to the appealability of an order or
judgment, as again recognised in
Shetu
Trading

He submitted that the order of 21 September 2015 had diminished the
custodian rights of the applicant, which rights had essentially been
taken away from her and/or, at the very least, that such rights had
been restricted dramatically.  He relied heavily on the South
African case of
Van
Oudenhove v Gruber
[4]
where the
Appellate Division had considered that the interim variation of a
custody order enabling the father to take his children to Austria,
for a year, was not the usual type of interim order, but was one
which was, in essence, final in effect, and thus appealable with
leave, as it had the effect of actually depriving the mother of
access and as such order had also effectively negated her custodian
rights to the children’s education etc..  He submitted
that that case was on par with the present one, as also the court’s
order, in this instance, had taken the applicant’s rights, as
far as custody was concerned, away altogether, so much so that she
could not be called a custodian parent anymore.  In any event,
her rights had been definitively affected and therefore, and if I
understand this argument correctly, he meant to contend that the
order, enrolling K and S in a hostel, during weekdays, was also final
in effect and thus appealable with leave.


[22]
He submitted further that in this regard his client’s prospects
of success where good, especially if regard was had to the fact that
the court had erred in taking Professor Naudé’s expert
report into account, and also if regard was had to the court’s
‘unreasonable refusal’ to allow the applicant sufficient
time to answer, and that therefore, in all of these respects, another
court would come to a different conclusion.


THE
GROUND OF APPEAL BASED ON THE COURT”S REGARD TO AN EXPERT
REPORT POSSIBLY OBTAINED IN CONTRAVENTION OF A STATUTE


[23]
After having listened to argument I have no hesitation to state
immediately that the applicant may have a point regarding the court’s
finding made in regard to Professor Naudés report.  That
was a report seemingly obtained in contravention of Section 17 of the
Social Work and Psychology Act, No 6 of 2004, which criminalizes the
conduct and practising of certain persons not registered in
accordance with the Act in Namibia.


[24]
This court - for the reasons set out in its judgment - decided that
it could legitimately have regard to the report – It is obvious
that another court might very well have decided that it would- and
could not have regard thereto as evidence, possibly obtained in
contravention of a statute, – i.e that evidence possibly
illegally obtained, for purposes of civil proceedings, would not be
admissible, as this, for instance, might impact on a party’s
fair trial rights, as enshrined in the Namibian Constitution, which
fundamental rights would obviously also govern civil proceedings.[5]
 


[25]
What this seemingly good point crucially loses sight of is that the
court - essentially and ultimately – always followed the
alternative recommendation of the applicant’s own expert, Mrs
Vorback, when it decided that it would be in K and S’s best
interests to enroll them in the hostel of a private school in
Windhoek, during weekdays,
pendente lite.
Prof Naude had recommended the return of K and S to the hostel of the
Edugate Academy in Otjiwarongo for them ‘
to
benefit from the therapeutic hostel placement’
.
Mrs Vorback on the other hand, in response, had indicated that her
preference was for the children to remain in Windhoek. This she
expressed in her letter of 16 September in which she also offered an
alternative proposal in this regard when she stated that ‘
in
order to keep them out of the middle of the conflict an option might
be to move them to a hostel in Windhoek, but keep them at WAP, where
the children feel secure and happy and where they have a support
system that is available to them.’


[26]
On analysis it appears that the court did not follow Prof Naude’s
recommenation to remove K and S from Windhoek to Otjiwarongo or to
take them out of WAP in Windhoek in order to place them into the
Edugate Academy in Otjiwarongo. It appears further that the court
followed Mrs Vorbacks recommendations to keep the children in
Windhoek and at WAP. The court found that the placement of K and S in
the WAP hostel ‘… would – at the moment –and
in the interim – be in their best interest – as this
would keep them – as Mrs Vorback has put it – ‘out
of the middle of the conflict’ – which – in all
probability will escalate again – … ‘.[6]


[27]
The above analysis then reveals that the court essentially embraced
the recommendations of the applicants own expert and that such
decision was fortified only in a very limited respect by Prof Naude’s
recommendation to place the children in a hostel, in so far as this
suggestion overlapped with Mrs Vorbacks hostel recommendation.


[28]
It appears therefore and, although the court did have regard to Prof.
Naude’s report that such regard was of no real significance to
the eventual outcome and the court’s ultimate decision. In such
premises it thus becomes unlikely that the court’s regard, to a
report, possibly obtained in contravention of a statute, would be
such that it would enhance the applicants prospects of success in any
material way or that another court might come to a different
conclusion for that reason.


THE
PROCEDURAL GROUND RAISED


[29]
The procedural ground relied on is similarly not on a firm footing. 
The essence of that complaint was formulated by Mr Mouton as follows:


His
Lordship Mr Justice Geier unreasonably refused the Applicant
sufficient time to prepare and answer to a 250 page Founding
Affidavit whereas it is the duty of the Court in matters of this
nature to make sure that all possible evidence are sufficiently
before Court in order to be able to arrive at a valued and legally
sound judgment.  The insufficient time granted to the Applicant
to have answered to the 250 plus page Founding Affidavit had the
result that not all and/or insufficient evidence was placed before
Court and the Court was consequently not in a position to have
arrived at a judicially sound judgment.  The Applicant clearly
stated in her Answering Affidavit that she did not have sufficient
time to have answered the allegations made in paragraph 28 of the
Founding Affidavit yet the Court thought it wise to have relied on
the uncontested allegations as stated in paragraph 28 of the Founding
Affidavit.  The Court consequently failed in its duty to have
ensured that all issues were properly before Court, canvased before
it gave an one sided judgment.’


[30]
Counsel for the respondents, in reply, made the following submissions
in this regard:


In
short the applicant complains that she was not able to effectively
answer the respondents voluminous application in the time period that
was afforded to her, from 16H30 on 15 September 2015 until 09H00 on
17 September 2015, which was essentially extended to 13H30 on 17
September 2015.


Sight
must also not be lost of the fact that despite the matter being set
down for 09H00 on 17 September 2015 and then later being postponed to
14H15 that same day, the application was only essentially heard the
next day (at 09H00 on 18 September 2015) this essentially afforded
the applicant a further opportunity to bolster and supplement her
answering papers, she however chose not to.


Therefore
in essence the applicant failed, over a period of approximately 60
hours to deal, at the very least, with the respondents’
(applicants in the main application) founding affidavit, which
comprised of 15 pages (48 paragraphs).


To
put this in even more perspective the applicant did not even, at the
very least, answer to the portion of the respondents’ papers
where he dealt with the facts rendering the matter urgent, these are
therefore admitted.  I am of the opinion that if the applicant
had at least dealt with paragraphs 28 and 39-46 of the founding
affidavit, she would be far better positioned.  Instead she
rather focused on attacking the respondent’s credibility,
loosing focus of the fact that the relief being sought was urgent
interim interdictory relief and not final relief.’


[31]
With hindsight it seems that the timelines offered and agreed to
initially by applicant’s instructing counsel, Mr Stolze, and
thus consequentially endorsed also by the court, for the filing of
answering papers, where probably inadequate.  What this ground
of appeal and Mr Mouton’s argument however loses sight of is,
that he, as instructed counsel, especially once he had come into the
matter later in the day, and thus took charge of his client’s
case subsequently, failed to apply for more time. He also failed to
ask for leave to supplement the applicant’s answering
affidavits in circumstances where there was more than ample
opportunity to do so and where the court even questioned him, during
argument, why this had not been done. Even then Mr Mouton did not get
the cue. In addition it must be of significance in this regard that
the amplification of the applicant’s papers would not have been
problematic, especially in circumstances where the respondents had
elected not to file any replying papers in that application.


[32]
It must further be of import that the exchange of papers in an urgent
application, if regulated by court order, would always have been an
interlocutory procedural ruling, which could have been changed at any
time, at the request of a party, on good cause shown. This avenue was
simply not utilized by the applicant.


[33]
Most importantly - and what this ground of appeal also - and in
addition - totally lost sight of – was - that the entire focus
of the application had shifted - as the application proceeded. The
application ultimately became argued on one remaining issue only. All
the many other issues, in respect of which fuller answering papers,
and more time might have been required, initially, had become
resolved once the parties had reached the agreements, and given the
undertakings, which are reflected in the court’s order of 21
September 2015. It was against this background they then agreed that
they would confine argument only to the limited issue of whether or
not K and S should be enrolled in the WAP hostel, in the interim.


[34]
The fact that the parties were able to reach an interim agreement on
the main questions of custody and access, had the effect of limiting
the remaining issues for determination so dramatically that it was
not surprising that the parties decided to argue the remaining point,
without amplification of their papers, and in respect of which they
then also signaled their agreement that this could be done, on the
papers, as they stood at the time before the court.


[35]
To sum up: this ground of appeal could thus have had merit if the
application would have had to be determined with reference to the
myriad of issues that were originally raised on the papers. In this
regard it could probably have been said that another court could,
possibly, have decided the interlocutory issue, relating to the
exchange of papers, differently. Once the application however took a
different route, so to speak, the parties’ election, to
proceed, on one limited issue only, on the papers as they stood, now,
in my view, precludes them from raising this point
ex
post factu
.


[36]
I believe that leave to appeal on this ground would therefore not
have been granted as far as the merits of this ground are concerned
and in respect of which it is in any event highly doubtful, whether
or not such ruling would even be appealable with leave. 


[37]
With this said, the cardinal issue of the appealability of the order,
directing the enrolment of the minor children in the WAP hostel,
during weekdays,
pendende
lite,

comes to the fore and needs to be determined. The determination of
this issue then turns on an analysis of the characteristics of the
order in respect of which the applicant now seeks leave to
appeal.[7]
 


IS
THE ORDER OF 21 SEPTEMBER APPEALABLE?


[38]
In this regard, and in the first instance, it seems that Mr
Ravenscroft-Jones is correct when he submitted that the order in
question does not have the requisite three attributes required for an
appealable order as set out in
Shetu
Trading
.
[8]



[39]
Surely the ruling, that K and S be enrolled,
pendende
lite,
in a hostel, can be varied at any time
by this court – it is not final because this court is entitled
to alter it. 


[40]
It was in addition correctly pointed out that also the Children’s
Court, in terms of section 5(1)[9],
seems to have the power to alter an order of the High Court
pertaining to custody and access – The enrolment of K and S, in
a hostel, is relevant to the issue of custody. The Children’s
Court would thus have the power to alter this court’s order,
should circumstances have changed, a requirement expressly imposed by
section 5(1) of the Children’s Status Act of 2006.[10]



[41]
Does the enrolment have the effect of disposing of at least a
substantial portion of the relief claimed in the main proceedings? –
The main proceedings in this instance is the application which has
since been instituted in the Children’s Court by the
respondents. The relief claimed in that court is to the effect that
the applicant is to be stripped of all her rights as custodian
parent, as far as all three minor children are concerned, and that
their paternal grandmother, the second respondent is to become the
custodian of K and S, whereas the first respondent seeks that custody
of the eldest daughter J, be awarded to him.


[42]
Now it does not take much to fathom, upon comparison, that the order
directing the enrollment of K and S during weekdays in a hostel is a
far cry from the relief claimed in the proceedings pending in the
Children Court which are aimed at awarding custody of the children to
the respondents.


[43]
The interim order of this court does not remove the applicant’s
status as custodian parent of her children.


[44]
In short – she retains custody.


[45]
By that same token it emerges that this court’s order of 21
September 2015 does not dispose of at least a substantial portion of
the relief claimed by the respondents in the Children’s Court –
In fact it would appear that it disposes of no portion of the relief
claimed there.


[46]
It becomes clear also, at the same time, that in this sense, the
order of 21 September 2015, is also not definitive of the rights of
the parties.


[47]
Upon closer analysis it appears nevertheless that certain facets, of
the applicant’s custodian rights, were affected by the court’s
order, temporarily – As custodian parent the applicant has the
right to enrol her children at WAP and also to choose whether or not
they should be enrolled in a hostel – The latter facet was
impacted upon as was correctly pointed out by Mr Mouton – He
had bolstered his submissions in this regard with the argument that
certain ancillary aspects, which flowed from the applicant’s
rights to custody, such as the regulation of the contact of her
children, with other children, was also affected and that she would
not now be able to regulate the daily affairs of the children as in
the past. It was in this regard that Mr Mouton’s reliance on
the
Van Oudenhove v Gruber
case comes to the fore.


[48]
That case entailed the analysis of the nature of a decision granting
a variation of an existing custody order, on an interim basis, to
enable the removal of the children in question out of the South
African jurisdiction, to Austria, for a year.  The Appellate
Division held that that the interim order in question did not entail
‘the usual temporary variation’ – and that its
actual effect was that it deprived the mother, who was still the
custodian parent, of her rights of access for a whole year and that,
during that period, also her rights, relating to the children’s
education and upbringing and choice of where they would stay, had
been negated altogether – The court thus held that the interim
relief granted, pending the hearing of the fathers action, was in
substance final relief, varying, in essence, the existing custody
order.


[49]
The
Van Oudenhove v Gruber
case must, in my view, however be distinguished, on the facts, from
the present one – In this case the applicant’s access to
her children is not taken away or negated altogether – On the
contrary there is nothing barring her from seeing her children at any
time also during the week while they are in the hostel.  In this
regard it is clear that she will see S at least on Wednesdays as
opposed to the first respondent’s rights of access which now,
by agreement between the parties, have been totally taken away during
the time that K and S are actually in the hostel during week days.
 The applicant continues to control the education of her minor
children, at the very least in the sense that her will continues to
prevail in that K and S continue to remain enrolled at the Windhoek
Afrikaanse Privaatskool in Windhoek. Express recognition is thus
given to the wishes of the applicant regarding the upbringing of her
children through their continued enrolment at WAP, the educational
institution of the applicant’s choice.  In effect the
enrolment of K and S in the hostel of WAP merely places them
additionally in the custody of the applicant’s approved agency
during weekdays in the afternoons and evenings, in circumstances
where they would, in any event, not have been with the applicant in
the mornings – during which time she, in any event, would not
have been able to control her children’s contact with other
children for instance. The applicant continues to exercise influence
over the school and will be able to communicate in this regard with
the teaching staff if and when the need arises in relation to any
wishes she may have and in regard to any issues that may arise in
respect of K and S’s schooling and their needs even when they
are in the hostel – At all times, that is while the children
are with the applicant also during holidays her rights remain
unchanged
pendende lite.


[50]
Can it thus be said that the interim regulation of only an aspect,
relating to the applicant’s custody, totally negates her rights
as custodian parent, as was essentially contended for by Mr Mouton,
or, that it can thus be said that such interim regulation was
definitive of such rights in the sense that this regulation was final
in substance and effect, particularly when the regulation of this
specific facet of their school life and aftercare, during week days,
continues to be open for variation, I would think not. Even if I were
wrong in this regard it has emerged that the interim regulation of
this component of the applicant’s custodian rights has
certainly not disposed of a substantial portion of the relief claimed
by the respondents in the main proceedings.


[51]
I therefore conclude - particularly in circumstances where the
applicant’s custodian rights where not as dramatically and
absolutely negated as in the
Van
Oudenhove

matter - that the interim enrolment of K and S - especially for
reasons and for purposes of moving them out of the conflict zone,
which conflict incidentally and not surprisingly has escalated again
- does not amount to ‘an unusual temporary variation’ of
the existing custody arrangement, as Galgut AJA has put it in
Van
Oudehove v Gruber
[11],
but is also
not final in effect. In any event – and from what has already
been said above – it has appeared in addition that the order in
question does also not bear the hallmarks of an ‘apealable
judgement or order’.


[52]
Consequentially I also find that the interim regulation of one facet
relating to the applicants custodian rights is thus in substance akin
to a ruling, in respect of which no right of appeal lies, even with
leave.


[53]
Even if I would be wrong in coming to this conclusion, and thus
keeping in mind that the Supreme Court in
Shetu
Trading

has stated that ‘ … the principles set out in
Zweni
on the question of appealability are ‘
not
cast in stone’

but are ‘
illustrative
and not immutable
[12]
and that such guidelines are thus ‘
useful
guidelines but not rigid principles to be applied invariably
[13]
… ‘ I would always have had to find that the order,
directing the interim enrolment of K and S in the hostel at WAP,
would not be an order as contemplated in Section (18)(1) of the High
Court Act[14], and which would
thus have been appealable as of right, but that such order amounts to
an interlocutory order, as contemplated in Section 18(3), which could
only have been appealed against with leave.


[54]
As the applicant was in any event unable to show good prospects of
success on appeal or that another court might come to a different
conclusion on the matter I believe that leave to appeal should- and
would, in any event, have been refused.


[55]
In the result, the application for leave to appeal is dismissed with
costs, such costs to include the costs of one instructed- and one
instructing counsel.


H
GEIER


Judge


APPEARANCES


APPLICANT:
Mr CJ Mouton


Instructed
by Conradie & Damaseb,


Windhoek


RESPONDENTS:
Mr JP Ravenscroft-Jones


Instructed
by Theunissen, Louw & Partners,


Windhoek



[1]
2012 (1) NR
162 (SC)




[2]
1993 (1) SA
523 (A)




[3]
Zweni v
Minister of Law and Order

at 531I –
533B




[4]
1981 (4) SA
857 (A)




[5]
This was
however not argued by the parties




[6]
See judgment
at [46]




[7]
See
:
Vaatz
and Another v Klotzsch and Others
,
unreported judgment of this court, SA 26/2001, dated 11 October
2002;
Aussenkehr
Farms (Pty) Ltd and Another v Minister of Mines and Energy and
Another

2005 NR 21 (SC);
Wirtz
v Orford and Another

2005 NR 175 (SC);
Handl
v Handl

2008 (2) NR 489 (SC); M
inister
of Mines and Energy and Another v Black Range Mining (Pty) Ltd

2011 (1) NR 31 (SC);
Knouwds
NO (in his capacity as provisional liquidator of Avid Investment
Corporation (Pty) Ltd) v Josea and Another

2010 (2) NR 754 (SC);
Namib
Plains Farming and Tourism CC v Valencia Uranium (Pty) Ltd and
Others

2011 (2) NR 469 (SC).
Shetu
Trading CC v Chair, Tender Board of Namibia and Others
2012
(1) NR 162 (SC);
Kahuure
and Another in re Nguvauva v Minister of Regional and Local
Government and Housing and Rural Development and Others
2013
(4) NR 932 (SC)




[8]
See also :
Namibia
Financial Institutions v Nedbank Namibia Ltd

( SA26-2015) [2015] NASC (19 August 2015)

at [15] to
[20]




[9]
Of the
Children’s Status Act

No 6
of 2006




[10]
5
Review of certain decisions

- (1)
Despite anything to the contrary contained in any law, a children's
court may, if circumstances have changed, alter an order of the High
Court pertaining to custody, guardianship or access made in
connection with a divorce or in any other proceedings.




[11]
At 866F




[12]
Shetu
Trading
at
para [22]
.




[13]
Supra
at para 22.




[14]
Act 16 of
1990