REPORTABLE

REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK

JUDGMENT

Case no: A 317/2012

In the matter between:

LYNDA AVRIL JORDAAN
...........................................................................APPLICANT

and

WYNAND JORDAAN
...............................................................................RESPONDENT

Neutral citation:
Jordaan v Jordaan (A 317/2012) [2012] NAHCMD 106 (11 December
2012)

Coram: PARKER AJ

Heard: 6
December 2012

Delivered: 11
December 2012

Flynote: Applications
and motions – Urgent application – Custody and control of
minor child – Court finding that a case has been made out for
the relief sought, and awarding custody and control of minor child to
applicant.

Flynote: Statute –
Children’s Status Act 6 of 2006, s 11 – Interpretation
and application of subsection (4), read with subsection (5), of the
Act.

Summary: Applications
and motions – Urgent application – Custody and control of
minor child – Custody and control of minor child had been
awarded previously by the court to the applicant in a final order of
divorce – Court finding that application for interim custody of
minor child lodged with the lower court has no legal basis, and the
interim order made by the lower court in respect of the application
was made per incuriam as the lower court’s decision is
ultra vires the Act and accordingly invalid.

Summary: Statute –
Children’s Status Act 6 of 2006, s 11 – Interpretation
and application of subsection (4), read with subsection (5), of the
Act – Court finding that since there existed a valid agreement
between the parties as to who should be primary custodian of the
minor child and such agreement was made an order of the court in a
final divorce order, application lodged with the magistrate’s
court under s 11(4) of the Act has no legal basis because the
parents, ie the parties, had agreed in a Settlement Agreement (which
was made an order of the court) as to who should be the primary
custodian of the minor child – Consequently in making the
interim custody order the learned magistrate acted per incuriam
and so the order is invalid.

ORDER

1. 
   The applicant’s
   non-compliance with the forms and service as provided for by rule
   6(12) of the rules of court is condoned, and matter be heard as one
   of urgency.

   
   

2. 
   A rule nisi be issued
   calling upon the respondent to show cause, if any, at 10h00 on 8
   February 2013 why an order in the following terms should not be
   granted:

   
   

1. 
   directing that custody and control of
   the minor child be awarded to the applicant subject to the
   respondent’s reasonable right of access with supervision; and

   
   

2. 
   directing respondent to pay the costs
   of this application on a scale as between attorney and client.

   
   

3. 
   Paragraphs 2(a) and 2(b)
   shall operate as an interim order with immediate effect pending the
   return date of the rule nisi on 8 February 2013 at 10h00.

   
   

4. 
   For the avoidance of
   doubt the custody and control of the minor child remains with the
   applicant until the return date.

   
   

JUDGMENT

PARKER AJ:

[1] This application is brought to the
court by notice of motion, and the applicant prayed that it be heard
on urgent basis, and the applicant sought the relief set out in the
notice of motion. The respondent moved to reject the application.
Having read the notice of motion and other process and documents
filed of record, and having heard Ms Schulz, counsel for the
applicant, and Mr Wylie, counsel for the respondent, I made the order
set out below, and said then that I would give reasons for my
decision. The order is this:

‘1.
The applicant’s non-compliance with the forms and service as
provided for by rule 6(12) of the rules of court is condoned, and
matter be heard as one of urgency.

2.
A rule nisi be issued calling upon the respondent to show cause, if
any, at 10h00 on 8 February 2013 why an order in the following terms
should not be granted:

1. 
   directing
   that custody and control of the minor child be awarded to the
   applicant subject to the respondent’s reasonable right of
   access with supervision; and

   
   

2. 
   directing
   respondent to pay the costs of this application on a scale as
   between attorney and client.

   
   

3.
Paragraphs 2(a) and 2(b) shall operate as an interim order with
immediate effect pending the return date of the rule nisi on 8
February 2013 at 10h00.

4. 
   For
   the avoidance of doubt the custody and control of the minor child
   remains with the applicant until the return date.’

   
   

And my reasons are as
follows.

[2] This matter revolves around the
custody and control of the minor child X. In a settlement agreement
concluded between the parties and made an order of court on 26
January 2007 in a final divorce order, the custody of X was awarded
to the applicant. In the course of events, the applicant gave to the
respondent the custody and control of X on two occasions. On the last
occasion, while experiencing some financial downturn the applicant
moved in to live with the respondent’s parents. At that
material time, X went to stay with the respondent. It was when X was
living with the respondent that the respondent ‘lodged an
application for interim custody in terms of section 11(4) of the
Children’s Status Act 6 of 2006 (“the Act”) on 17^th
day of January 2011’; and ‘[O]n the 20^th day
of January 2011 the Magistrate’s Court of Katutura made an
interim custody order in terms of section 11(5) (of the Act) whereby
I was granted interim custody and control of X’.

[3] The starting point of
the present enquiry is indubitably the final order of divorce that
the court per Gibson J made on 26 January 2007, as aforesaid,
that is, about six good years ago. The order (in material respects)
reads:

‘1.
That the bonds of the marriage subsisting between the plaintiff (the
respondent in the present proceeding) and the defendant (the
applicant in the present proceeding) be and are hereby dissolved.

2.
That the agreement between the parties filed of record and marked “B”
is hereby made an order of Court.’

[4] For the purposes of
this application the part of the final order of divorce that has
particular probative value is the following; that is to say –

‘The
defendant shall have the custody and control of the minor child, X J
(born 28/01/2002), subject to the plaintiff’s right of access
to him ….’

Another aspect of the
final order of divorce that has probative value in the present
proceeding is that the custody and control of X was agreed by the
applicant and the respondent in their Settlement Agreement; and what
is more, they agreed that the Settlement Agreement should be made an
order of court; and the court did that. This factual finding is
critical in this proceeding, as I shall demonstrate shortly.

[5] The peg on which the
respondent hangs his opposition to the instant application is the
lower court’s order of interim custody of X, which is mentioned
above. In this regard, in my view, the final order of divorce and the
interpretation and application of subsection (4), read with
subsection (5), of the Act hold the key to the determination of the
present application. Section 11 of the Act provides:

‘(4)
Despite subsection (3) or anything to the contrary in any law, if the
parents of a child cannot agree as to who should have primary custody
of the child, and there is a possibility that the best interests of
the child may be compromised or prejudiced, the person who has
physical custody of the child may, in the prescribed form and manner,
make an ex parte application to court for an interim order of custody
of the child.

(5)
On receiving an application made in terms of subsection (4) the court
may grant the interim order to the applicant or to any other person,
taking into account the best interests of the child.’

[6] In terms of s 11(4)
of the Act a person who has physical custody of the child may make an
application or custody of the child ‘if the parents of a
child cannot agree as to who should have primary custody of the
child’. (Italicized for emphasis) In the instant case, it is an
irrefragable fact that when the respondent lodged the aforementioned
17 January 2011 application with the lower court, he knew very well
that there was in existence not only a valid agreement between the
parties as to who should be the primary custodian of X but that such
agreement is an order of the court. That being the case subsection
(4), read with subsection (5), of the Act was not available to the
respondent. Indeed, by lodging the aforementioned application with
the lower court the respondent set at naught and treated with
contempt the final order of divorce that the court granted in which
custody and control of X were awarded to the applicant. If this court
did not grant the relief sought by the applicant in the instant
proceeding, it would amount to the court approving the conduct of the
respondent which is contumacious of the 26 January 2007 final order
of divorce made by the court. Thus, as far as this court is
concerned, the application that the respondent lodged with the
magistrate’s court in terms of s 11(4) of the Act has no legal
basis, and the interim custody order that was made by the
magistrate’s court in terms of s 11(5) of the Act was made per
incuriam as the learned magistrate acted ultra vires the Act; and
so the interim order is invalid. For these reasons, this court
granted the relief sought in the notice of motion as hereinbefore set
out.

----------------------------

C Parker

Acting Judge

APPEARANCES

APPLICANT: F Schulz

Of P D Theron &
Associates, Windhoek

RESPONDENT: T Wylie

Instructed by Neves Legal
Practitioners, Windhoek