FAMILY – Children – Contact – Parents having shared contact rights by agreement
Mother deciding to relocate without consideration of father’s views – Moving child 550 km away and restricting access to supervised contact from previous 50% contact regime – Decision significantly changes and adversely affects father’s exercise of parental responsibilities – Need for stability in children’s lives – Pending family advocate’s investigation and report, the status quo in respect of father’s parental responsibilities and rights to contact is restored – Children’s Act 38 of 2005, s 31(2).
Facts: The applicant and respondent have a five-year-old daughter. They were never married. When their relationship ended, they decided together how they would care for their daughter. They entered into an agreement in January 2023 which regulated their relationship with their child. Both parties signed the agreement. The agreement provided that both parties have full parental rights and responsibilities as provided for in section 19(1) and 21(1) of the Children’s Act 38 of 2005. The parties exercised these shared (50/50) contact rights on the advice of the appointed family mediator. The clear intention of this agreement is that the child would spend as much time as possible, equally, with both of her parents.
Application: The applicant sought urgent relief seeking to restore his contact rights with his daughter. In October 2023 the respondent wrote to the applicant that she had moved the child from the court’s jurisdiction and relocated together with the child to be with her new partner. The letter further conveyed that the applicant would only be entitled to restricted and supervised contact with the child going forward. The impact is that the applicant has to travel 550kms to see his child for four hours on a supervised basis in public and then drive back 550kms.
Discussion: The applicant argues that he is being effectively alienated from his child. There can be no debate that to move a child 550 km away and restrict access to supervised contact for 4 hours every second weekend in a public place, from a previous 50% contact regime, is a decision which significantly changes and adversely affects the applicant’s exercise of parental responsibilities. Section 31(2) of the Children’s Act provides that before a person holding parental responsibilities and rights in respect of a child takes any decision which is likely to change significantly or have a significant adverse effect on the co-holder’s exercise of parental responsibilities, they must give consideration to any views and wishes expressed by any co-holder of parental responsibilities. There was no consideration of the applicant’s views. The respondent’s case is that as the custodial parent, decisions can be made unilaterally. The respondent has made allegations about the applicant and claims that depriving the child of access to her father would be in her best interests.
Findings: Our courts have expressed the need for stability in children’s lives. Our case law has recognised the importance of consistency in children’s lives – particularly those as young as the parties’ daughter. Children’s existing environment should not readily be disturbed, and any unnecessary moves should be discouraged and avoided on the grounds of security and stability. A stable routine is universally determined to be in the interests of children, especially those of a young age. The solution is to get the family advocate to investigate the issues and report back on what is in the best interest of the child in these circumstances. If the outcome of that independent investigation is that the child should not be in contact with the applicant – then the agreement can be amended, and the respondent can take the necessary steps. However, the respondent cannot do what she has done here, which is to unilaterally decide to alter her child’s access to her father in breach of an agreement and section 31(2) of the Children’s Act.
* See from para [36] on dispute of fact where a child’s welfare is at stake and the respondent’s claim that she has already moved and consequently that this court has no jurisdiction.
Order: The applicant and the respondent retain full parental responsibilities and rights in respect of the child. The family advocate is requested to conduct an investigation into the child’s best interests, with specific reference to her primary care, place of residence, the scope, ambit and extent in terms of which the applicant should maintain contact with her. Pending the family advocate’s investigation and report, the status quo in respect of the applicant’s parental responsibilities and rights to maintain contact is restored. To the extent the removal of the child from the court’s jurisdiction interferences with the applicant’s parental responsibilities and rights, the respondent is ordered to return the child to this court’s area of jurisdiction in order to ensure compliance with the express agreement of January 2023.
DE VOS AJ
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Vodacom v Makate [2024] ZASCA 14
CIVIL PROCEDURE – Court order – Interpretation – Constitutional Court order on assessment of equitable compensation
Idea for highly successful Please Call me feature for cellphones – Test for reviewability of determination of CEO as deadlock breaker – Test formulated in Bekker v RSA Factors 1983 (4) SA 568 (T) – High Court did not apply second leg of Bekker test – Order of High Court remitting determination to CEO with list of directives not sought – CEO’s determination flawed and inequitable – Order of High Court replaced with order that decision of CEO determining compensation to be paid to Makate is reviewed and set aside.
Facts: Mr Makate worked for Vodacom as a trainee accountant. In 2000 he came up with a brilliant idea: a cellphone user with no airtime could send a request to another user with airtime, to call the former. Based on this idea Vodacom developed the Please Call Me (PCM) product. It turned out to be a resounding success. Vodacom refused to pay Mr Makate anything for his idea. In 2008 he sued Vodacom in the High Court and the matter reached the Constitutional Court which ordered Vodacom to commence negotiations in good faith with Mr Makate for determining a reasonable compensation payable to him. Mr Makate made a settlement proposal of R20 billion. The CEO awarded Mr Makate compensation for his PCM product in the amount of R47 million.
Appeal: Dissatisfied, Mr Makate instituted review proceedings in the High Court against the amount of compensation that the CEO had determined Vodacom should pay him. The High Court found in favour of Mr Makate but remitted the determination of the amount of compensation to be paid to the CEO. This order was coupled with certain directives which the CEO was required to follow in his redetermination. Vodacom appeals against the judgment and order of the High Court with the leave of that court. Counsel for Vodacom submitted that R47 million was a generous amount, and since the CEO dutifully accounted for his determination based on his knowledge of over 28 years with Vodacom, it cannot be said that such an award is unfair and manifestly inequitable.
* See Makate v Joosub NO [2022] ZAGPPHC 55
Discussion: The standard of review applicable to the CEO’s determination is one articulated some 40 years back in the judgment of Bekker v RSA Factors 1983 (4) SA 568 (T) which postulates that, where a third person is nominated to fix a price or make a valuation, such a person is expected to exercise the judgment of a reasonable person. The High Court was correct that the CEO’s determination was not reasonable. However, even if the High Court was correct on the first leg of the Bekker test, it did not undertake the second leg of the enquiry to consider whether the CEO’s determination of R47 million was manifestly inequitable. The sole reason for any invention to be retained by Vodacom, for over 20 years, is that it continues to generate revenue. The CEO’s motivation for adhering to the five-year contractual period is not borne out by the reasons he had provided in the original determination, nor by those in his supplementary reasons. The CEO’s determination is flawed and inequitable. He started on the wrong premise by rejecting the 5% which the parties had agreed to and during his calculations made a further 70% reduction. There was also an omission of the Mobile Termination Rates.
Findings: The remedy of the High Court as crafted was not what Mr Makate sought, because he sought that the determination of the CEO be set aside and substituted, instead of remitting it for reconsideration to the CEO. The court can find no reason why Mr Makate’s computation should not be accepted as correct. Particularly because the issue, on computation of the compensation, was fully ventilated. The order of the High Court should have been to uphold Mr Makate’s application, but without remitting the determination to the CEO with a list of directives. It behoves this court to show its displeasure in the manner in which this protracted litigation has been conducted over close to two decades, with Vodacom not playing open cards with Mr Makate on the necessary information until ordered to do so by the CEO significantly later in the hearing, to some extent, after pre-hearing negotiations had failed. This delay can safely be laid at the doorstep of Vodacom.
Order: The order of the High Court is replaced with an order that the decision of the CEO determining the compensation to be paid to Mr Makate is reviewed and set aside. Mr Makate is entitled to be paid 5%–7,5% of the total revenue of the PCM product from March 2001 to date of judgment. The total revenue of the PCM product shall be that set out in Model 9A, 9B & 9BB submitted by Mr Makate.
MOCUMIE JA (MOTHLE JA and NHLANGULELA AJA concurring)
SCHIPPERS JA (KATHREE-SETILOANE AJA concurring) from para [40] not agreeing with the conclusion that the High Court ought to have set aside the conclusion of the CEO and substituted it with its own decision.
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Notisi v South African Police Service [2023] ZALAC 33
LABOUR – Dismissal – Reinstatement – Police colonel charged with misconduct and dismissed
Labour Court finding against reinstatement – Bar of intolerability is high one not easily reached – Evidentiary burden heightened where dismissed employee has been exonerated of all charges – To punish appellant with unemployment without him having been found guilty of any wrongdoing was grossly unfair and unwarranted – Appellant had been employed for 28 years, had attained the rank of Colonel and was the Head of Springs Criminal Investigation Services with approximately 63 detectives serving under him – Appeal upheld.
Facts: Mr Notisi was employed by the SAPS as a Colonel. He was charged with two charges of misconduct, namely perjury and interference with the administration of justice. The perjury charge arose from the appellant’s testimony at the regional court that an accused was a police informer. On the second charge, it was alleged that the appellant instructed a court orderly to leave the court without just cause. He was found guilty of both charges by the internal disciplinary enquiry and was dismissed. The arbitrator at the bargaining council concluded that the dismissal was substantively unfair and ordered reinstatement together with back pay in the amount of R1,246,955.25.
Appeal: The SAPS was partially successful in its review application at the Labour Court where the court reviewed and set aside the award. It upheld the finding by the arbitrator that the dismissal was substantively unfair. However, on the reinstatement remedy the court a quo held that, had the arbitrator taken into account the provisions of section 193(2)(b) and (c) of the Labour Relations Act 66 of 1995 (LRA), he would have found it impossible to avoid the conclusion that the trust relationship was seriously damaged, or alternatively, that the appellant’s conduct was incompatible with his functional role. The court set aside the award in respect of the reinstatement remedy and substituted it with the maximum compensation of twelve months’ remuneration.
Discussion: At the time of his dismissal by SAPS in 2016 the appellant had been employed for 28 years, had attained the rank of Colonel and was the Head of Springs Criminal Investigation Services with approximately 63 detectives serving under him. The arbitrator noted that the appellant sought to be reinstated and found that SAPS had not shown that the trust relationship with the appellant had broken down or that a working relationship with him would be intolerable as provided for in section 193(2) of the LRA. This was so since his superiors, with whom he worked, had no concerns around trust and expressed clearly that his performance had been good. The arbitrator stated that the evidence regarding the alleged involvement of the applicant in further offences relating to murders became no more than speculation. The arbitrator found that there was no clear evidence as to the chronology of events and at what point in time the appellant was aware of facts, nor what official action had been taken by SAPS within such chronology.
Findings: The Labour Court erred in failing to recognise not only that the bar of intolerability is a high one not easily reached, with the employer required to provide weighty reasons with tangible evidence to prove it, but that such evidentiary burden is heightened where the dismissed employee has been exonerated of all the charges. The appellant was not found guilty of any wrongdoing. There was no reason why he was not charged or disciplined in respect of the further misconduct alleged on which SAPS sought to rely belatedly so as to justify his dismissal; and there was no indication that those allegations were of such a serious nature as to justify his dismissal. To punish the appellant in such circumstances with unemployment without him having been found guilty of any wrongdoing was grossly unfair and unwarranted. The fact that he may not have shown himself to be an exemplary witness does not alter this fact when the onus rests on the employer to prove the fairness of the dismissal.
Order: The appeal is upheld and the order of the Labour Court replaced with one dismissing the review application with no order as to costs.
SAVAGE AJA (MOLAHLEHI ADJP concurring) from para [40]
GQAMANA AJA from para [1] and finding that it would not be fair to expect the SAPS to continue an employment relationship with the appellant and that the circumstances surrounding the appellant’s dismissal militate against the reinstatement relief.
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ABOUT SPARTAN CASE LAW
Louis Podbielski spent ten years at Juta working on various law reports and has read many thousands of judgments for case selection. He has considerable experience in writing flynotes and headnotes, compiling case annotations, and in refining subject indexes. During his four years at LexisNexis he was involved with legal data, analytics and in developing various legal tech solutions. He now runs his own case law service Spartan Case Law
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