Spartan Caselaw

DJH v AH [2023] ZAECMKHC 139

FAMILY – Children – Relocation – Parties in process of divorce – Both parents involved with child

Mother wishing to relocate with child to another province for improved employment package – Mother wanting to create distance between herself and father – In recommending relocation the report by family advocate fails to take cognisance of fact that both parties are parents who have equal parenting responsibilities – No consideration given for upheaval in child’s life and absence from father – Best interests of child the paramount consideration – Mother interdicted from relocating with child.

Facts: SH is Grade 5 learner. She attends school regularly and achieves the learning outcomes appropriate to her grade, this with the support of both parties who are involved in her school progress and activities. She is also the adopted child of the parties who presently reside in Graaff-Reinet where they are in the service of the same employer. The applicant is employed as a yearling manager and the respondent, as a private chef and hospitality/housekeeping manager. SH lives with the respondent who is her primary caregiver. The parties are presently in the throes of an acrimonious divorce. SH is reported to have an understanding of the divorce and has no difficulty moving between the parties.

Application: The issue in this matter concerns the relocation of the child from where she presently resides in Graaff-Reinet to Somerset West, located in another province some seven hours away. A previous judgment directed the family advocate to compile a report detailing findings and recommendations as to whether it is in the best interests of SH to permanently relocate with the respondent. The respondent claims that she was offered a relocation opportunity to Somerset West with a more beneficial employment package.

Discussion: The applicant has raised various concerns and issues about the respondent’s relocation. The applicant laments that he will not be able to enjoy alternative short school holidays and long weekends and share long school holidays with SH, and the substantial contact he has with her (which presently amounts to six days every two weeks) will be drastically curtailed by the distance between the two localities. This contact arrangement is in keeping with the previous recommendations of the family advocate that more or less suggests that SH spends an almost equal amount of time with both parties. The applicant criticises the family advocate for omitting to deal with important factual considerations which he accentuates in justifying that SH lives and enjoys her best life in Graaff-Reinet.

Findings: It is apparent that the real motivation for the relocation is because the respondent feels the need to create distance between herself and the applicant, with SH having to simply go along with the respondent’s plans. No consideration is given for the upheaval this will create in the child’s life, let alone the absence from the applicant. In recommending relocation, the report by the family advocate conveys the wrong approach and fails to take cognisance of the fact that both parties are parents who have equal parenting responsibilities towards SH, yet the decision seems to be that, because the respondent is the custodial parent and entitled to assert her freedom and career, it is in the best interests that SH moves along with her. There are perceptible indications that there is no genuine motivation for what is realistically in the best interests of the SH, but rather for what suits the respondent.

Order: The respondent is interdicted from relocating with the minor child to Somerset West and removing the minor child permanently from Graaff-Reinet, contrary to the best interests of the said minor child.

RUGUNANAN J

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Wesbank, Firstrand Bank v CCMA [2024] ZALCCT 1

LABOUR – Constructive dismissal – Intolerable conditions – Working for bank for 17 years with clean record

Issues with line manager leading to disciplinary proceedings and dramatic downgrading of performance assessment – Long delay in processing employee’s grievances – Accretion of conduct creating increasingly oppressive work relationship – No functioning mechanism available to halt the deterioration – Employer made employment relationship intolerable and employee was entitled to regard his resignation as constructive dismissal – Labour Relations Act 66 of 1995, s 186(1)(e).

Facts: Mr Aylward was formerly employed as a specialist fraud and risk investigator by the bank for a period of 17 years before resigning. His disciplinary record had been clean until he encountered issues with his line manager which resulted in disciplinary proceedings. His line manager later gave him a poor performance rating and he was placed on a performance improvement plan (PIP). He also found out that he had been excluded from the WhatsApp group used within the fraud department for formal and informal communications. Mr Aylward felt he was being marginalised in the department and lodged six grievances against his line manager’s conduct. As things stood at the time of his resignation, his grievances had not been attended to and it seemed unlikely they would be.

Application: Mr Aylward referred an unfair dismissal dispute to the CCMA claiming that he had been constructively dismissed by the bank. Wesbank wishes to review and set aside the award issued by the arbitrator which found that Mr Aylward was unfairly dismissed in terms of section 186(1)(e) of the Labour Relations Act 66 of 1995, in that the bank made continued employment intolerable for him. The arbitrator upheld his claim and awarded him ten month’s remuneration as compensation.

Discussion: The arbitrator concluded that the bank was making continued employment intolerable for Mr Aylward as the evidence before her showed that the manager and the bank were victimising him, in particular after he had referred disputes to the CCMA. She noted that the head of employee relations had responded to Aylward’s request to be transferred to another department but failed to deal with it directly and instead suggested that both parties enter into a mutual separation agreement as it would be in their best interest. The arbitrator noted that Mr Aylward had a clean disciplinary record for 17 years until the relationship between him and the manager soured. The bank made no attempt to resolve the personal conflict between them in order to restore a good working relationship, which would have been in its interest. Instead, Mr Aylward’s appeals for intervention were basically ignored.

Findings: The prospect of continued employment must be shown to have been objectively intolerable and the employee must have resigned due to the intolerable situation and not for another reason. The long delay in processing Mr Aylward’s grievances stands in stark contrast to the speed with which the manager drove the investigation into his whereabouts on a certain morning and into all the study leave he had taken. The dramatic downgrading of his performance assessment by the manager was significantly at odds with how his performance had previously been assessed and was decided on without any prior discussion with him. This is a case which is not characterised by a single decisive moment, such as a clear repudiatory act by the employer. Rather, it concerns an accretion of conduct creating an increasingly oppressive work relationship for Mr Aylward, with no functioning mechanism available to halt the deterioration. The court is satisfied the employer had made the employment relationship intolerable and he was entitled to regard his resignation as a constructive dismissal.

Order: The review application is dismissed. No order is made as to costs.

LAGRANGE J

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BMGS v MBS [2024] ZAGPPHC 24

FAMILY – Contempt – Child contact

Order following Uniform Rule 43 application that father to pay maintenance and granted parental rights and responsibilities with mother – Second order following that mother in contempt because father denied contact – Mother still refuses to comply with the two orders – Mother wilful and mala fide by continually refusing to comply – Child’s rights violated because he is being used and robbed of having any chance of knowing his father and forming a relationship with him – Mother to be committed to prison for 12 months – Father granted immediate access – Children’s Act 38 of 2005, s 18.

Facts: The applicant and the respondent are the biological parents of the minor child who was at the centre of a Uniform Rule 43 application which led to the granting of an order in August 2021. The relief sought by the applicant aimed to protect his rights as the father of the child, and to have the right of access to, and contact with his child. The father was ordered to pay maintenance in the amount of R15,000 per month, and states that to date he has not been able to have any contact with his child, despite having been granted full parental rights and responsibilities, together with the respondent.

Application: The respondent disobeyed and refused to comply with the first order and the applicant brought an application to have the respondent declared in contempt. This resulted in a second order which ordered that the respondent be committed to imprisonment for a period of 30 days. The two orders form the basis of the current application because the respondent still refuses to comply.

Discussion: The respondent is fully aware of the contempt order granted against her and she is determined to frustrate the applicant and rob him of his relationship with the child. The behaviour of the respondent prejudices the interests of the very child who she is supposed to protect as required of her by both the Constitution and the Children’s Act 38 of 2005. Counsel correctly argued that this child’s rights are being violated because he cannot fight for himself and he is being used and robbed of having any chance of knowing his father and forming a relationship with him. It was argued on behalf of the applicant that this matter is further rendered urgent by the fact that the applicant as the father of the minor child is being deprived of his rights in terms of section 18(2)(b) of the Children’s Act.

Findings: The applicant continues to obey and comply with the first order by contributing to the maintenance of the child as required of him as a father, even though he is being deprived of his rights to maintain contact with the child. The respondent acted wilfully and mala fide by continually refusing to comply with the court orders and disrespecting the authority of the court and the rule of law. It is rather concerning that legal practitioners find themselves in situations where their profession would be compromised, considering that there was a failure to advise the respondent to comply with the court orders, or better yet, advise on what is in the best interests of her minor child, taking into account the impact non-compliance will have on the growth and the development of the child.

Order: The respondent is to be committed to prison for the contempt of two court orders for the period of 12 months. The respondent is directed to report to the Pretoria Central Police Station within 24 hours of this court order for her incarceration for 12 months at Kgosi Mampuru Correctional Services, Female Prison. The applicant is granted immediate access to the child.

PHAHLANE J

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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

You can read his full CV and more about Louis on his LinkedIn profile where he shares interesting and recent cases.

1 COMMENT

  1. FAMILY – CONTEMPT – CHILD CONTACT – that is sending a very loud message, hope people start to realise that they must obey court orders.

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