Court name
High Court
Case number
9 of 2012
Title

Stephansen v Stephansen (9 of 2012) [2012] NAHC 136 (01 June 2012);

Media neutral citation
[2012] NAHC 136
Coram
Smuts J














7








IN THE HIGH COURT OF
NAMIBIA







CASE NO.: A 09/2012







In the matter between:







LYNN STEPHANSEN
…....................................................................................APPLICANT







and











ANTON JOHANNES STEPHANSEN
….......................................................RESPONDENT











CORAM: SMUTS, J







Heard on: 16 May 2012



Delivered on: 31 May 2012











JUDGMENT















SMUTS, J.: [1] The
applicant approached this court on an urgent basis on 30 January
2012. Although a notice of motion was produced in court, the
application was based on primarily the oral testimony of the
applicant and was brought without notice to the respondent, her
husband.







[2] After hearing the applicant’s
testimony (and that of Dr Kimberg), an interim interdict in the
following terms was granted:




  1. That the
    applicant’s non-compliance with the Rule, forms and services
    of this Honourable Court and hearing this application as one of
    urgency in terms of Rule 6(12) of the Rules of the this Court and
    hearing this application on an ex-parte application are hereby
    condoned.









  1. That the rule nisi and order
    granted on an ex parte basis by Magistrate Shaanika in the Domestic
    violence Court for the District of Windhoek held at Windhoek on
    Friday, 27 January 2012 is stayed with immediate effect pending the
    final determination of the domestic violence proceedings under case
    number 39/2012 by the Domestic Violence Court of Windhoek.









  1. That the Rule Nisi is hereby
    issued calling upon the Respondent to show cause, if any, to this
    Honourable Court, on 24 February 2012, at 10h00 why:










    1. The respondent should not be
      interdicted from harming the minor children Dennis Biermann and
      Bianca Biermann in any manner whatsoever;











    1. The custody and control, without
      any rights of access to the respondent, of the aforesaid minor
      children should not be awarded to the applicant pending the
      finalisation of divorce proceedings to be instituted by the
      applicant within 7 days of the date of this order;



    2. Why the respondent should not pay
      the costs of this application.










  1. Paragraphs 3.1 and 3.2 operate as
    interim interdicts with immediate effect.”
















[3] The applicant gave evidence to the
effect that the respondent suffered from depression and had a history
of emotional and mental instability. During January 2012 the
applicant informed the respondent that she had decided to institute
divorce proceedings against him. This had disturbed him. The
applicant testified about an incident on 7 January 2012 where the
respondent had had an emotional rage and had tried to kill the whole
family including the couple’s two adopted minor children born
in 2002 and 2004 respectively. He had driven his vehicle dangerously
on a gravel road, offloaded them and attempted to run them over after
dumping them on the side of the road at a remote spot.







[4] The applicant left the common
house after this incident, with the 2 minor children. Subsequently,
and on 27 January, the respondent approached the magistrate court and
was inexplicably granted an interim protection order on an ex parte
basis on the grounds of the applicant alleged economic abuse. That
court also granted the respondent interim custody of the two minor
children pending a return date of 23 February 2012.







[5] The applicant had also approached
the magistrates court on 27 January 2012 for a protection order. When
doing so, the clerk of the court informed the applicant of the
respondent’s protection order and temporary custody order but
undertook to inform the respondent only on Monday 30 January 2012 of
service of the orders to enable her to take steps to address that
order.







[6] On Sunday 29 January 2012, the
respondent however informed the applicant that he would not take the
children out of her care. But on the next day, the respondent
provided the children’s school with the protection order and
informed the applicant that he would collect them at the school. The
applicant then approached her lawyer, Ms Campbell and the urgent
application was brought and the order quoted above was granted. The
applicant was concerned about harm to the children, given the
incident of 7 January 2012 and the respondent’s instability,
particularly if he were not taking his medication for his condition.
The latter had occurred in the past and the applicant apprehended its
recurrence.







[7] Shortly before the return date of
24 February 2012, the respondent filed a notice to oppose and an
opposing affidavit on 21 February 2012. At that stage, the transcript
of the oral proceedings had not been finalised, despite persistent
request by Ms Campbell. In the opposing affidavit it was contended
that the interim interdict was a nullity because of the failure to
serve the transcribed record upon the respondent. This point was
understandably not persisted with. Other points were taken and also
not persisted with.







[8] The rule was extended on 24
February 2012 and an order was made directing the further exchange of
affidavits following receipt of the transcribed record. Further
affidavits were exchanged before the extended return date of 14 March
2012. In the meantime, the divorce action proceeded and had reached
an advanced stage following the engagement of professionals on both
sides around the issue of access to the children on the part of the
respondent.







[9] The experts engaged by the parties
consulted each other and were able to reach agreement amongst
themselves on a recommended regime of supervised access by the
respondent pending the finalisation of the divorce action, and
thereafter. The parties advisedly each accepted those recommendations
and upon the extended return date, the rule was partially confirmed
(in respect of paragraph 3.1) and it was further ordered that pending
the finalisation of the divorce action, the agreed regime of
supervised access on the part of the respondent would apply. The
parties were unable to agree on the costs of this application which
then stood over. That issue was not resolved between them in
finalising the divorce action and on 16 May 2012, Ms Campbell and Mr
Wylie, for the respondent, argued the costs of this application.







[10] Mr Wylie submitted that the
applicant should be deprived of her costs because she was not
entitled to have approached this court for her interim relief as the
respondent did not constitute a danger to the minor children. He
further contended that the order sought (and granted) was excessive.
He submitted that was borne out by the fact that supervised access
was subsequently agreed upon. He also argued that the applicant was
not ultimately successful for this reason and, on the basis of the
principle of costs following the result, the applicant should be
deprived of her costs.







[11] Mr Wylie’s approach
entirely overlooks the nature of these proceedings – namely an
interim interdict pending the divorce action and confuses this
application with the divorce action itself and its outcome.







[12] The question is after all whether
the applicant was substantially successful in seeking an interim
interdict pending the divorce action and whether she was justified in
applying for the interim interdict. Upon the extended return date,
paragraph 3.1 of the rule was confirmed and a regime of supervised
access by the respondent to the minor children was ordered pending
the finalisation of the divorce action. This serves to demonstrate
that the applicant was justified in applying for and obtaining the
interim interdict. The application had after all been precipitated by
the respondent obtaining a protection order and securing temporary
custody of the children on an ex parte basis – wholly
unjustifiably in my view. That order was rightly discharged by
another magistrate shortly afterwards on 24 hours notice to the
respondent.







[13] Once it was accepted that the
applicant was entitled to an interim interdict – which in my
view was clearly the case – as is demonstrated by the terms of
the confirmation of the rule, then the applicant was substantially
successful with regard to that application. This despite the fact
that the prohibition of access was ameliorated to gradually expanding
supervised access.







[14] In the course of the application
and upon the initial return date the applicant offered the respondent
supervised access to the children. But thus was refused. This is
confirmed by the respondent in his further affidavit. I do not find
that the initial prohibition upon access followed by an offer of
supervised access in the context of the facts viewed as a whole
amounted to making an exorbitant claim by the applicant which would
disqualify her from obtaining her costs. In her submissions, Ms
Campbell pointed out that applicant only approached this court after
it became clear that the respondent intended to exercise his rights
of temporary custody under the irregularly granted protection order.
That is not placed in dispute by the respondent.







[15] Having been plainly entitled to
approach this court for interim relief and being ultimately
substantially successful in respect of its import, I find no
reason why costs should not follow the event. No grounds for
departing from this fundamental principle were advanced by Mr Wylie.







[14] I accordingly direct that the
applicants costs of the application, including those related to all
appearances in it, are to be paid by the respondent.











___________



SMUTS, J







































































ON BEHALF OF THE APPLICANT: MS
CAMPBELL



Instructed by: DU PISANI LEGAL
PRACTITIONERS















ON BEHALF OF THE RESPONDENT: ADV
WYLIE







Instructed by: ANDREAS VAATZ &
PARTNERS