MK v RK

• Jurisdiction: South Africa
• Judge: Thatcher AJ
• Judgment Date: 27 September 2013
• Docket Number: 1684/2013
• Court: KwaZulu-Natal High Court, Durban
• Hearing Date: 17 September 2013
• Citation: 2013 JDR 2178 (KZD)

Thatcher AJ:

[1]

The applicant, who is 39 years old, and the respondent who is 32, were married on the 25th January 2003. Within weeks of their marriage, they moved to the United Kingdom where the applicant took up employment. On the 27th April 2005, while they were living in England, the respondent gave birth to AK, a girl, who is now 8 years old. The parties separated on the 2nd March 2009, over five years ago, when the child was nearly 4 years old. The respondent returned to South Africa with her.

[2]

It is unclear from the papers when the applicant returned to South Africa, but in 2009 he brought an action for divorce in this court. That action is pending.

2013 JDR 2178 p2

Thatcher AJ

Since May 2012 he has been employed as a petroleum engineer in the Sultanate of Oman where he will in all likelihood be for the foreseeable future.

[3]

It would appear that from 2009, the parties have been unable to agree on appropriate access to AK for the applicant. This resulted in an application by him for defined access and this court making an order on the 29th December 2010 that the applicant receive unsupervised access during the second half of all school holidays, and, importantly for this case, telephonic contact at all reasonable times. Given that the applicant now only returns to South Africa about four times a year, for most of the time he is limited to telephonic contact with AK which is obviously of great importance not only for him but to enable AK to maintain a relationship with him.

[4]

The applicant apparently returned to Oman on the 15th January 2013, after having spent the December 2012 / January 2013 school holidays in South Africa during which time AK spent three weeks with him, part of which they spent in Cape Town. According to the applicant, he has not been able to speak to the child on the telephone since the 24th January 2013. This is questionable. I say so because in his founding affidavit, deposed to by him on the 16th February 2013, he states, importantly in the present tense, as follows:-

"Although I telephone either the respondent's cellular phone or her landline daily, I have been lucky to speak to AK twice a week at best. When I do manage to get hold of the respondent, and AK and I are left to talk, our conversations generally last between 20 and 40 minutes."

2013 JDR 2178 p3

Thatcher AJ

[5]

The events leading to the applicant bringing this application are the following. On the 25th January 2013, the applicant's attorney addressed a letter to the respondent in which it was alleged that the applicant had been unable to maintain regular telephonic contract with AK because the respondent had failed or refused or neglected to allow such contact, he alleged, by not answering her home telephone or cell phone. The respondent was told that she was to facilitate telephonic contract by making AK available to speak to the applicant and by answering her (the respondent's) cellular telephone. An offer was made to provide a cell phone solely for the purpose of the applicant contacting AK. The letter further went on to state as follows:-

"This [telephonic] contact must begin this evening failing which our instructions are to approach court immediately for an interdict forcing you to comply with this request or alternatively charges will be opened against you at the police."

The letter addressed two further issues, namely AK's school expenses and the quality of the school she was attending. The letter ended with the following:-

"Kindly provide us with your responses to the above request by close of business on 1 February 2013."

[6]

On the 28th January 2013, the respondent replied in a lengthy email. She advised that the applicant is free to contact AK "at the reasonable time of 5 pm" and she accepted the applicant's offer to provide her with a cell phone. The respondent then went on to deal at length with the other issues raised in the applicant's attorneys' letter concerning AK.

2013 JDR 2178 p4

Thatcher AJ

[7]

On the 31st January 2013, the applicant's attorney sent a further letter advising that a cellular telephone had been delivered to the respondent's mother on the 29th January 2013, but that it had been returned because AK was allegedly "too small for a cellular telephone". It was further alleged that the applicant had tried calling at 5pm the previous day and there was no answer from either the home telephone or the respondent's cellular telephone. The letter further stated as follows:-

"Our client is still being prevented from having telephonic contact with AK and in the circumstances if you do not grant our client telephonic contract this evening between the hours of 17h00 and 18h00 or allow our client to provide the minor child with a cellular telephone and continue to allow this permanently, an application to court will be brought against you without further notice to you on an urgent basis and a punitive costs order will be sought against you."

[8]

It is not known whether there was telephonic contact that evening. There was, however, no written response to this letter, and, it would seem, no oral response.

[9]

On the 18th February 2013, this application was launched as a matter of urgency and was set down for hearing on the 21st February 2013.

[10]

On that date the respondent was present in person and a rule nisi was issued with interim relief. That interim relief was as follows:-

"1(a)

The respondent ... is ... directed to ensure that the applicant shall have telephonic contact to (sic) the minor child AK ... daily between 17h00 and 19h00 for a duration of not less than 10 minutes per telephone call;

2013 JDR 2178 p5

Thatcher AJ

(b)

The respondent is interdicted and...