CASE LAW UPDATE

Facts: Skylim (respondent) alleges that it and Liquor Network (appellant) entered into an oral agreement (Skylim agreement). The Skylim agreement relates to the rendering of services by Liquor Network to Skylim. The Skylim agreement was for the period 1 November 2016 to 31 October 2017. No renewal of the agreement was pleaded. The import of this is that on the pleadings, the Skylim agreement came to an end on 31 October 2017. The claim that Skylim sought to establish was in terms of the Skylim agreement. Liquor Network asserts and appends a different written agreement to the Skylim agreement to its plea (LN agreement). The import of this is that the appellants say that if the LN agreement regulated the relationship between the parties, there naturally can be no establishment of the breaches of the Skylim agreement. What is more, is that the appellants allege conduct that it says constitutes a repudiation of the LN agreement.

Appeal: The court a quo held that the respondent’s (Skylim’s) claims were prosecuted in terms of an agreement concluded between it and Liquor Network. The appellants appeal against the judgment of the court a quo in which the judge granted summary judgment in the sum of R891,167,56 against the appellants. Can summary judgment be granted where the plaintiff’s claim has not been established? Should this be the first consideration before a court even begins to consider the question of a bona fide defence? This is an issue in the present appeal.

Discussion: The Skylim agreement, on the pleadings and on its own terms came to an end in October 2017. All the claims extend beyond this period. No renewal is pleaded. It is thus unclear how the agreement was still extant beyond October 2017. Claims 1 to 4 could not, on the pleadings, be prosecuted under the Skylim agreement. This is a substantial defect, in that no cause of action is disclosed. What is more, in relation to claim 4, which is the most significant of the claims from a monetary perspective, the Skylim agreement does not at all deal with goods sold and delivered. This much was rightly conceded by Skylim’s counsel. The argument put forward as a counter was that the Acknowledgement of Debt was a basis for claim 4. This submission cannot be accepted, simply because that is not how the particulars of claim were drawn and importantly the affidavit for summary judgment does not make out that case.

Findings: Skylim, on its own pleadings, as well as the affidavit in support of summary judgment, did not establish a claim. The application ought to have been dismissed on that basis alone. The appellants have adduced facts, which if accepted at trial, would constitute a defence. Two examples disclose patently triable issues. The first relates to the contention that the Skylim agreement is not the operative agreement but rather the LN agreement governed the relationship. If this is the case, the breaches complained of by Skylim may not arise. The second relates to claim 4, where the appellants say that they did not receive the goods as alleged by Skylim. This fact, if proved at trial, would constitute a defence as well. For the remainder, the denials of overpayment, duplicating invoices as well the charging for services not rendered, all give rise to triable issues.

* See in particular the discussion at paras [17]-[29] on whether summary judgment be granted where the plaintiff’s claim has not been established.

Order: The appeal is upheld. Summary judgment is refused and leave to defend is granted with costs to be costs in the cause.

MUDAU J, MAIER-FRAWLEY J and GOVENDER AJ

Facts: The parties share an acrimonious relationship and despite having obtained expert advice that the acrimony between them has a profound adverse impact their daughter, the hostility endures. The parties have been regulating their contact with the “3-2-2 regime”, whereby the minor child spends equal time with each parent on the basis that she spends three days with her mother, two days with her father, two days with her mother; then three days with her father, two days with her mother, two days with her father, two days with her mother; and so forth.

Application: In terms of Uniform Rule 43(6). The applicant contends that the parenting coordinator (the PC) has impermissibly reduced his contact with the minor child and that she had failed in her duties and has not fulfilled her role as PC. He contends that the services of a PC are no longer necessary. The applicant seeks for the 3-2-2 regime to operate each week, which ensures that the minor child spends equal time with each parent.

Discussion: There is a significant dispute of fact in relation to how the minor child coped with the 3-2-2 schedule, the applicant contending that it has worked very well and the respondent contending that it has not. The respondent has cited numerous examples of the minor child having what is described as “melt downs”, screaming hysterically, kicking, spitting, biting, scratching, and crying at handovers at school. It emerged from the papers that there are completely different rules, structures and routines in the parties’ respective homes. The respondent contends further that when the minor child is in the applicant’s care, he alienates the minor child from her and places pressure on the minor child to express the view that she is in favour of the shared residence regime. It is alleged that the applicant advises the minor child that she has to “save the day” otherwise “they would take her dad away”. The child’s therapist has raised the concern that the child is exhibiting signs of psychological splitting, which is considered to be a profoundly harmful defence mechanism.

Parenting Coordinator: There has been a complete breakdown in the relationship between the second PC and the applicant. There was similarly a complete breakdown in the relationship between the first PC and the applicant, which ended in the applicant having reported the first PC to her governing body. Regrettably, it appears that when experts, PC’s, therapists and the like take steps, form and express opinions, make recommendations or issue directives that are contrary to the applicant’s own views or his unmitigated desire to implement shared residence of the minor child at any cost, he adopts a hostile and combative approach in an effort to remove the person standing in the way of him achieving his objective.

Findings: If parties are unhappy with a particular PC, they are obviously at liberty to approach the court for the PC’s removal and in so doing, must provide a cogent basis in fact for such removal. It may well be that both parties are dissatisfied with the particular PC and that by agreement, they remove that PC and appoint an alternate one. What cannot be countenanced is the type of carefully crafted and deliberate stratagem to oust the PC by creating unpleasantness, reporting to governing bodies and using other intimidatory tactics when the PC does not issue directives which accord with the desired outcome of a particular party. Simply put, disagreement per se does not constitute sufficient ground for the PC’s removal. There is a need for a new PC to be appointed in this matter in light of the high conflict nature of the parties’ relationship. An assessor, Dr Duchen, was clear that the conflict between the parties and the high levels of acrimony and hostility could militate against a 3-2-2 regime.

Order: The Rule 43 order is varied and the contact days for the applicant are set out in the order at para [36]. A new Parenting Coordinator is appointed with requirements set should a part seeker her removal. The PC shall be entitled to increase or decrease the contact between the applicant and the child as also, to restructure or reconfigure the contact in a manner which best serves the child. Directions are also given for the assessment of the child and for therapy.

SEGAL AJ

Facts: The Presiding Officer in the Children’s Court made an order in respect of a minor child. The order dealt with the appointment of a parenting coordinator to assist the parties to give effect to and comply with the order. The parenting plan was confirmed however paragraphs relating to contact rights to be exercised between the minor and the respondent was suspended. The suspension referred to was operated until the respondent complied with paragraphs 6 and 7, the subject matter of the contempt relief. Paragraph 6 and 7 directed the respondent to submit herself to a psychologist to equip her with the necessary parenting skills to discipline and guide the minor other than resorting to physical disciplining or chastisement or by delegating her responsibilities of disciplining and guiding the child to another person and that both the respondent and the minor should be assisted by a psychologist to rebuild their relationship of trust in each other and how to manage conflict, discipline and respect. The order also required the applicant to subject himself to a psychologist to acquire the necessary skill on how to better self-manage disputes between himself and the respondent.

Application: The application was initially brought by way of urgency by the applicant in which he sought contempt relief against the respondent. Such contempt relief relating to the adherence of the respondent in respect of paragraphs 6 and 7 of the court order handed down in the Children’s Court in respect of the minor child. Over and above the contempt relief the applicant sought to amend the order by limiting the respondent’s contact rights to the minor to supervised contact with the assistance of a social worker. The supervised contact relief was couched as final relief. The application was not heard on the urgent roll and is now placed before this court as a special motion.

Discussion: Prof Pretorius authored an addendum report to the psycho-legal report. To summarise the minor’s aspirations and voice she revealed that the current litigation between his parents, with him as the subject of it, is harming him psychologically. Acrimonious litigation between the parties has continued since the report and after the 23 August 2023 order. Prof Pretorius reiterated and expressed that the minor felt discomfort with the “sex talk” and was traumatised by the discussion about the child abduction and child rape. He has been traumatically sexualised in that now, he is reminded of “sex” when he looks at dolls and wishes to “get it out of his heart and brain”. The need to address further therapy with the minor becomes a matter of urgency. Both the reactive and emotive ways in which the applicant and the respondent reacted to the event (assault and thereafter the kidnapping) was not done to protect the minor, but rather to get the upper hand on each other.

Findings: The inability of the applicant and the respondent to control their intense dislike for each other has unfortunately also spilled over into the minor’s schooling and academic development. The lack of appreciation, lack of ability to co-parent, lack of ability to enjoy and appreciate the advice of a parenting coordinator and therapists, may result in the minor being taken away from the applicant and the respondent in the future and placed in a place of safety. The situation does call for a new parenting coordinator who has more powers than proposed in paragraph 3 of the order to assist both the parents and the minor to enjoy the effects of a parenting plan. For the minor, the sooner the better. This will be a means to achieve balance.

Order: The roll and appointment of Adell-Mari Wolmarans as the present Parental Coordinator in terms of paragraph 3 of the court order of the 14 August 2023 is terminated. Dr Lynette Roux, a clinical psychologist is appointed as the Parental Coordinator. The applicant and respondent are bound by the terms of the PC’s engagement and by the powers and purpose as set out by the 2023 order.

RETIEF J

Facts: The deceased was married to the respondent, Ms PN, by civil rights in 2017. It is undisputed that the deceased and the surviving spouse lived under the same roof as husband and wife until the demise of the deceased. In September 2024, the deceased left the matrimonial home to visit a place identified in the papers as Mai-Mai. In due course, the surviving spouse received a call from the friend of the deceased to come to Mai-Mai because the deceased has been shot. Indeed, the deceased was shot and he died because of the bullet wound. Later, the family gathered to arrange the funeral of the deceased. In the family meeting, the surviving spouse mentioned to all present that the deceased had expressed that upon his death he wished to have his body cremated instead of being buried.

Application: An urgent interdict seeking to restraint the holder of burial rights to exercise the preferred method of disposing of the body of her deceased husband. The mother and the minor children of the deceased are opposed to that wish as relayed by the surviving spouse. The mother of the deceased and Ms K, on behalf of the two minor children, prefer the burial method. They contend that the burial method accords with the Zulu customs and culture. The deceased was allegedly a staunch supporter of Zulu customs and traditions.

Discussion: The applicants do not have legally enforceable rights. In a feeble attempt to generate such rights, the applicants seek to rely on two constitutional rights. There is no legal basis to rely on these peripheral rights. None of the rights of the minor children as protected in section 28 of the Constitution are implicated by the choice of the disposal method. Section 30 of the Constitution deals with denial of cultural rights. There are no clear cultural rights demonstrated in this court that the Zulu nation does not cremate. On the contrary, the surviving spouse presented uncontested evidence that in the immediate family of the deceased, three deceased bodies were cremated. The onus rested on the applicants to establish the alleged culture against cremation.

Findings: The surviving spouse takes over the overall responsibility for the body of the deceased. If the surviving spouse decides, as in this case, to dispose of the body of the deceased through the cremation method, there is no basis in law to prevent the surviving spouse from doing so. The applicants have no right to exercise any burial rights. In exercising her rights, the surviving spouse is not acting unlawfully. The argument that the criminal investigations may require exhumation is not only fanciful but it is also preposterous given the undisputed manner in which the deceased died. He was shot and he died as a result of the bullet wound. Why would there be a need to exhume?

Order: The application is dismissed. The applicants are ordered to jointly and severally, the one paying absolving the other, pay the costs of this application on a party and party scale to be taxed or settled at scale B.

MOSHOANA J