REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

EX TEMPORE JUDGMENT

In the matter between: Case no: A 244/2015

SAMANTHA BAILLIE MOOR APPLICANT

and

JOHAN HENDRIK McDONALD 1ST RESPONDENT

MARTIE McDONALD 2ND RESPONDENT

Neutral citation: Moor v McDonald (A 244-2015) [2015] NAHCMD 253 (30

September 2015)

Coram: GEIER J

Heard: 30 September 2015Delivered: 30 September 2015Released: 21 October 2015

Flynote: Court - Orders of Court - Compliance with - Applicant applying for leave to

appeal a previous Court order and for other relief on an urgent basis - Applicant in

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contempt of such order - Court striking matter from roll - Court giving applicant leave

to re-enroll application on proof that she had complied with the previous order.

Summary: In terms of a ruling, which the court had previously made at the request

of the parties, the court had ordered that their two younger children, be enrolled,

during weekdays, in the hostel of a private school, pending the institution and

finalization of an application to be launched by the first respondent in the Children’s

Court for the variation of an agreement concluded between the parties in regard to

the custody and related matters of their minor children.

The applicant responded to such ruling by launching an urgent application for leave

to appeal in respect thereof, together with other relief.

At the commencement of the hearing the Court requested the parties to address the

court on the issue of whether or not it was competent for the Court to hear the

application before the applicant had purged her contempt of the original order. The

applicant had not enrolled the children in the hostel as ordered and had also refused

the respondents’ access to the children as ordered.

The Court holding that, although contempt of a Court order was not an absolute bar

to be heard at subsequent proceedings, this case did not fall under the exceptions to

this rule. The Court stressed the importance of complying with orders of Court.

The Court accordingly struck the matter from the roll and gave leave to the applicant

to re-enrol her application for leave to appeal and to proceed with the other relief in

the normal course on proof that she had complied with the existing Court order as far

as the enrolment and placement of the children in the hostel was concerned.

ORDER

1. The application is struck from the roll with costs.

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2. The applicant is entitled to re-enroll the hereby struck application and to have

her application for leave to appeal heard, which is provisionally set down for

hearing on 07 October 2015 at 09h00, on proof, to be provided by way of

affidavit, that she, the applicant, has enrolled and physically placed Karlien

Martie McDonald and Samantha Sonja McDonald in the hostel of the Windhoek

Afrikaanse Privaatskool, pending the finalisation of the application, which has

been launched, in terms of section 12 of the Children Status Act 2 of 2008, by

the 1st respondent.

3. In the event that the applicant has complied with the pre-condition set out

above in paragraph 2 of this order and wishes to re-enroll the struck application

and have her application for leave to appeal heard, it is further ordered by

agreement between the parties that:

(a) The application in respect of the relief sought in prayers 2 and 3 of the

Notice of Motion of her application, as well as the respondent’s counter

application, are to proceed in the normal course.

(b) The application for leave to appeal will then be heard at 09h00 on

Wednesday, 07 October 2015 and that in respect of that application:

(i) The 1st and/or 2nd respondent’s will not oppose the urgency of the

application and that the court will be called upon to determine the

merits of the application for leave to appeal.

(ii) The applicant is to then file her heads of argument by 17h00 on

Friday, 02 October 2015.

(iii) The 1st and/or 2nd respondent are to file heads of argument by

17h00 on Monday, 05 October 2015.

4. It is further ordered by agreement between the parties, that paragraph 4, of the

order dated 21 September 2015, which regulates the access of the parties to

their minor children, in the interim, is hereby varied in the following respects:

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(a) that during the week, and while Karlien Martie McDonald and Samantha

Sonja McDonald are in the hostel of the Windhoek Afrikaanse

Privaatskool, the 1st and/or 2nd respondents will have no telephonic or

other access to the said children;

(b) that the said children be informed of this and be asked not to contact the

1st and/or 2nd respondents during the weekdays while they are in the

hostel of the Windhoek Afrikaanse Privaatskool.

JUDGMENT

GEIER J:

[1] At the commencement of a further urgent application - this time brought by the

applicant against the respondents - a few days after a previous urgent application -

brought by the respondents against the applicant - relating to the interim custody of

the parties’ minor children - had been concluded - the court raised the question

whether or not the applicant, in this instance, should be heard, given her self-

admitted refusal to comply with the court’s order of 21 September 2015, which had

resulted from the first brought application.

[2] The applicant’s case, in essence, is that she did not comply with the courts

orders, on the advice of professionals, a certain Mrs Vorback, a play- therapist, and

her legal team, as this would be in the best interests of the minor children concerned.

[3] In the application, which she brought some four days after the order of 21

September 2015, the applicant also seeks the committal of the 1st respondent for

contempt of court, in addition she seeks a protection order against him which would

bar the 1st and 2nd respondents from coming near the applicant and the children, or

from communicating with the applicant and with the two younger children of the

parties, K and S, as well as a certain Mr Smith. She also prays that her application

for leave to appeal the judgment and order of 21 September 2015 be heard on an

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urgent basis, at the same time asking that such order be suspended, pending the

finalisation of such appeal.

[4] The reason for the court requesting the parties to address this issue was

prompted by the following considerations: this court in its judgment, delivered on the

21st of September 2015, had reluctantly ordered that the children, K and S, be

enrolled in the hostel of the Windhoek Afrikaanse Privaatskool, as of Monday, the

28th of September 2015, pending the finalisation of an application to be instituted in

the Children’s Court, within seven days of such order, (that is an application for the

variation of the existing custody arrangement pertaining to the children of the

parties}. A few days later, and on the 25 th of September 2015, the applicant then

lodged this urgent application, seeking all the abovementioned relief. By the time that

the matter was called on the 29 th of September 2015, the applicant had admitted to

not having physically placed the children in the hostel as of 28 September 2015, as

ordered. As per her legal practitioner’s letter of the 25 th of September 2015, the

applicant had also informed the 1st respondent that she would no longer allow access

to the 1st respondent to the children, also in non-compliance of the said court order.

[5] The court being mindful of the principle that a person, that may be in contempt

of a court’s order, might in certain instances not be heard, until such time, that the

seeming contempt has been purged, then required the parties to address this

concern in limine.

[6] In addressing this issue, both counsel, were agreed that the requirement, that

a person, in non-compliance of a court’s order, would not be heard, until such time

that the non-compliance had been purged, was not an absolute rule and that the

court would have a discretion in this regard, which should be exercised judicially, on

the facts before it.

[7] These submissions seem to be correct.

[8] In Hamutenya v Hamutenya1 Maritz J (as he then was) gave recognition to the

applicable principles, which he set out as follows:

1 2005 NR 76 (HC)

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‘In pressing the point in limine on behalf of the respondent, Mr Boesak reminded the

Court of the dire consequences to the administration of justice and the maintenance of order

in society if orders of Court are disregarded with impunity. Recognising the considerations of

public policy which underline the need to respect and comply with orders of that kind, the

Court said in Sikunda v Government of the Republic of Namibia and Another (2) 2001 NR 86

(HC) at 92D--E:

'Judgments, orders, are but what the Courts are all about. The effectiveness of a

Court lies in execution of its judgments and orders. You frustrate or disobey a Court order

you strike at one of the foundations which established and founded the State of Namibia.

The collapse of a rule of law in any country is the birth to anarchy. A rule of law is a

cornerstone of the existence of any democratic government and should be proudly guarded.'

Authority for this approach is also to be found in a case both parties drew the Court's

attention to. In Kotze v Kotze 1953 (2) SA 184 (C) Herbstein J said at 187F:

'The matter is one of public policy which requires that there shall be obedience to

orders of Court and that people should not be allowed to take the law into their own hands.'

It is for these reasons that Froneman J pointed out in Bezuidenhout v Patensie Sitrus

Beherend Bpk 2001 (2) SA 224 (E) at 229B--D:

'An order of a Court of law stands until set aside by a Court of competent jurisdiction.

Until that is done the Court order must be obeyed even if it may be wrong (Culverwell v

Beira 1992 (4) SA 490 (W) at 494A--C). A person may even be barred from approaching the

Court until he or she has obeyed an order of Court that has not been properly set aside

(Hadkinson v Hadkinson [1952] 2 All ER 567 (CA); Byliefeldt v Redpath 1982 (1) SA 702 (A)

at 714).'

These propositions apply with equal force to orders relating to the custody and control of

minor children. This much was recognised by Herbstein J in Kotze's case supra at 187D--E:

'A similar question has recently been dealt with in England in the case of Hadkinson

v Hadkinson 1952 (2) All ER 567 Romer LJ gave the main judgment and inter alia said:

''It is the plain and unqualified obligation of every person against, or in respect

of, whom an order is made by a Court of competent jurisdiction to obey it, unless and

until that order is discharged.''

He went on to say that two consequences flow from that obligation:

''The first is that anyone who disobeys an order of Court is in contempt and

may be punished by committal or attachment or otherwise. The second is that no

application to Court by such person will be entertained unless he has purged himself

of his contempt.''

That matter also concerned a child. The learned Judge pointed out that this was the

very kind of case in which the ordinary rule should be applied in all its strictness. Disregard

of an order of Court is a matter of sufficient gravity, whatever the order may be. Where,

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however, the order relates to a child the Court is, or should be, adamant on its due

observance. Such an order is made in the interests of the welfare of the child and the Court

will not tolerate any interference with or disregard of its decisions on those matters.' 2 …

And

‘ … The second point that falls to be considered is whether, the applicant's contempt

notwithstanding, this case should nevertheless be entertained as an exception. It is quite

correct, as Mr Schickerling submits, that the barring of a litigant to seek redress in a Court of

law, simply because he or she has failed to comply with an earlier order of Court, is not an

absolute one. That much has been recognised in the case of Di Bona v Di Bona and

Another 1993 (2) SA 682 (C) where, at 688, it is said:

'The rule, however, that a person in contempt of Court will not be heard is not an

absolute rule. This appears clearly from the judgments of Romer LJ and Denning LJ in

Hadkinson's case and in this regard those judgments have been adopted by our Courts in

Kotze's case supra, Clement's case supra, and in the decision in Byliefeldt v Redpath 1982

(1) SA 702 (A). In Hadkinson's case Romer LJ mentioned a number of exceptions to which

he said the consequence of the refusal to hear a person in contempt is undoubtedly subject.' 3

THE APPLICANT’S CASE

[9] Mr Mouton appearing for the applicant urged the court not to insist on

compliance with the order of the 21st of September 2015 and he argued firstly that

the applicant was not in default of the court’s order, as the order, more particularly

paragraph 10 thereof, had merely directed that the children involved be ‘enrolled’ at

the hostel of the Windhoek Afrikaanse Privaatskool, as of Monday the 28 th of

September 2015. He submitted that the applicant had complied therewith by

alleging that the ‘enrolment’ was done on the 25 th of September 2015 and that the

papers were with the Headmistress of the hostel.

[10] In support of these allegations, the relevant applications for admission, to the

hostel, for the children, had been annexed as “B” to the replying papers.

2 Hamutenya v Hamutenya at pages 78C to 79B3 Hamutenya v Hamutenya at page 81 C - E

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[11] With reference to the dictionary meaning of the word “enrol” - merely meaning

‘to write the name of a person on a list’ - he submitted that this had actually been

done by his client – and - as the court’s order had not expressly directed - in addition

- that the children – also - be actually and physically placed in the hostel - that his

client had actually complied with the court’s order. Accordingly, no non-compliance-

or perceived non-compliance had to be purged, before his client could be heard.

[12] These submissions cannot be upheld for the following reasons:

1. Firstly, the meaning of the word ‘enrol’ as relied on by Mr Mouton is not the

only meaning that can be assigned thereto. See in this regard for instance the

‘Collins English Dictionary - Complete Unabridged’ 4, which defines the word ‘enrol’

to also mean “ to become or cause to become a member; enlist; or register”.

2. Annexure “B” does in any event not reflect that the children were actually put

on any list or that their registration as members of the Windhoek Afrikaanse

Privaatskool Hostel had actually been effected.

3. Annexure B is merely an application form which was completed and which

does not even reflect that it was received, approved or rejected, or that the children

were even put on a waiting list, as appears from the space left on the application

form for ‘office use’. So even on Mr Mouton’s argument, compliance with the court’s

order, by the applicant was not shown.

4. What is more, the applicant was acutely aware that she was in contravention

of the said order. This appears from paragraph 37 of her replying affidavit, where this

is expressly admitted.

5. In paragraph 12 of her founding papers she also asks the court to condone

her non-compliance with the court order of the 21st of September 2015, explaining

that she did not comply with the court’s order because she heeded the advice of Mrs

Vorback and as she thought this to be in the best interest of her children.

6. Ultimately, she puts the issue beyond doubt when she stated that her

instructions to the school were that ‘… the enrolment papers must be in order, but

4 Sixth Edition 2003 at page 545

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that the ‘enrolment’ will stand over pending her and her children’s appeal.’

[13] There can thus be no doubt that, in spite of the interpretation now

opportunistically contended for by the applicant, that she has deliberately chosen not

to comply with paragraph 10 of the court’s order of the 21st of September 2015,

which she had at all times correctly understood as placing on her the obligation to

have the children physically placed in the hostel at WAP.

[14] It should, in addition, be mentioned that the same court order, in paragraphs 3

and 4, also regulated the immediate restoration of access, to the 1st respondent, to

his children, in the interim, on the terms, as reflected in the previous agreement,

concluded between the parties.

[15] The refusal to grant access to the 1st respondent, to his children, as

communicated as per Mr Stolze’s letter of 25 September 2015, Annexure “J8”, to the

answering papers, on behalf of the applicant, clearly evidences- and also amounts to

a further blatant breach of the court’s order of the 21st of September 2015.

[16] In such circumstances, the further arguments advanced on behalf of the

applicant fall to be considered in order to determine whether or not the court should

nevertheless hear the applicant without first insisting on compliance with its order of

the 21st of September 2015.

[17] If I understand Mr Mouton’s submissions in this regard correctly, he based the

applicant’s case, to be exempted from having to comply with the court’s orders in

question, before being heard, essentially on four pillars, namely:

1. That the applicant was faced with an illegal expert report compiled by

Professor Naudé, which the court had regard to, in its judgment of the 21st of

September 2015, and, on the basis of which, the court had ordered the placement of

the children in the hostel.

2. That Ms Vorback, in her letter dated 23 September 2015, two days after a

reasoned judgment had been delivered, in paragraphs 5.3 and 5.4 of such letter, had

advised, in response to one of the questions posed by Mr Stolze, the applicant’s

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legal practitioner of record, as follows.

5.3 Should Mr McDonalds behaviour, as stated in my letter of 9 September 2015

continue and is not monitored, a hostel placement might leave the children even

more vulnerable.

5.4 This possibility as stated in 5.2 could provide a more neutral placement in

order to stabilize the children’s situation and have the least emotional impact and

insecurities on them, instead of uprooting them and moving them back to a school

and hostel from which they are gone for nearly two years. With this option they could

stay in their school, within reach of their supportive system, but still out of direct

conflict situation between Mr McDonald, Mrs McDonald (parental grandmother) and

Ms Moor and Mr Smith.’

3. That the 1st respondent had breached the undertakings recorded in

paragraph 9 of the said order through having had telephonic contact with the

children, as evidenced by the WhatsApp exchange, documented in the papers.

4. That the children involved, K and S, had expressed their views against the

enrolment in the hostel, as was evidenced in the letters annexed to the applicant’s

founding papers.

[18] He emphasised throughout, that his client’s non-compliance was not

deliberate and had only occurred on the advice of professionals.

THE POSITION OF THE RESPONDENT’S

[19] Mr Ravenscroft-Jones in answer, attacked the credentials of Ms Vorback in

the sense that she had also not been proved as an expert, as her qualifications had

not even been confirmed in any affidavit filed of record.

[20] He submitted further that, the entire application, now brought, was in any

event a stratagem to vary the court’s orders as granted on 21 September 2015.

[21] He pointed out that there was not very much new information that had come

to light as was reflected in Ms Vorback’s letter, at paragraph 6.2, in which only the

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fears, expressed by S, with regard to the payment of hostel fees and her special

dietary requirements, were reflected.

[22] Most importantly, he urged the court to uphold the rule of law, intimating

thereby that the court should insist on compliance with its order before the applicant

should be allowed to be heard.

SHOULD THE COURT HEAR THE APPLICANT?

[23] When considering these arguments, and mindful of the applicable principles, it

appears to me firstly that, the impact and importance of Professor Naudé’s report

was not as significant as perceived by the applicant. In the judgment delivered on 21

September 2015, the court found, after a consideration, of what it considered it to be

the applicable legal principles, that it could have regard to Professor Naudé’s report,

and, that upon such consideration, that report was in agreement, with the alternative

proposal made by Ms Vorback, in relation to the placement of the children in a

hostel, as far as the important issue, of keeping S and K out of the middle of the

parental conflict, was concerned. Recognition was thus accorded to Ms Vorback’s

previous report. Although the applicant felt that she was faced with the Naudé report,

this perception was wrong, as also a closer scrutiny of the judgment in question, will

prove.

[24] The decision to place K and S in the hostel during the week was thus

ultimately and always made in accordance with the alternative proposal made by the

applicant’s own expert, Ms Vorback.

[25] If one then has regard to Ms Vorback’s letter AV1, dated 2 days after the

judgment, it appears that her continued concern was the continuous and escalating

conflict between the adults involved and the impact this would have on the emotional

well-being of the children. This was also the ultimate reason for the court’s decision

requiring their placement in the hostel in order to remove them from the parental

conflict zone.

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[26] Ms Vorback was requested by Mr Stolze to qualify her alternative proposal, as

made in her letter of 16 September 2015, some two days after the judgment. She

responded as follows :

‘5. In your letter dated 16/9/2015 you state that “an option might be to move

them to a hostel in Windhoek”, please qualify this remark having regard to both your said

letters and the current court order.

5.1 This option was after a telephonic conversation with Mr Stolze, dated 16

September 2015, where the undersigned’s professional opinion was asked regarding

a more practical hostel placement at WAP and the impact that might have on the best

interest of the said children.

5.2 As explained in my letter dated 16 September 2015, in order to keep them out

of the conflict an option might be to move them to a hostel in Windhoek, but keep

them in WAP, where the said children feels secure and happy and where they have

ta support system that is available to them. And as stated in my letter of 9

September 2015, withheld any further contact between the children and Mr

McDonald, as well as Mrs McDonald for three months due to the destructiveness of

the contact and the emotional insecurity that this leads to. This will also assist in:

- creating emotional security for the children, as well as to be able to address

Sonja’s medical and academic needs in a consistent and less stressful way.

This will make it easier to monitor and stabilize the medication and to deal

with it accordingly to her needs, as well as,

- until there is a constructive plan or procedure in place to regulate the parents

behavior, or the conflict can be resolved.

5.5 Should Mr McDonalds behaviour, as stated in my letter of 9 September 2015

continue and is not monitored, a hostel placement might leave the children even

more vulnerable.

This possibility as stated in 5.2 could provide a more neutral placement in order to

stabilize the children’s situation and have the least emotional impact and insecurities

on them, instead of uprooting them and moving them back to a school and hostel

from which they are gone for nearly two years. With this option they could stay in

their school, within reach of their supportive system, but still out of direct conflict

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situation between Mr McDonald, Mrs McDonald (parental grandmother) and Ms Moor

and Mr Smith.’

[27] It appears that the advantages of a hostel placement were again reiterated

and explained by Ms Vorback which were made even without insight into the

reasoning of the judgment, which had been delivered some two days earlier.

[28] It should be mentioned at this stage that counsel did inform the court that the

parties, in the interim, and in anticipation of the possible outcomes of this judgment,

had agreed on how Ms Vorback’s concerns, regarding the unmonitored access of

the 1st respondent to his children, either while placed in the hostel or should they be

allowed to remain with the applicant, for the moment, would be regulated. This

agreement would, so it seems, for the moment, address Ms Vorback’s concerns, as

expressed in her latest letter, as well as those of the applicant, at least to the

greatest extent.

[29] It is also relevant to note that Ms Vorback does at no stage categorically state,

even in her latest letter, that it would not be in the best interests of K and S. not to be

enrolled at the WAP hostel. After all, and ultimately, such enrolment, in her view,

always posed an acceptable alternative. An alternative, the court in its judgment of

21 September 2015, and for the reasons reflected there, also found to be in the best

interests of K and S.

[30] As far as the third leg of Mr Mouton’s argument is concerned, I believe that

the hearing of the merits of the main application and the counter application brought

by 1st and 2nd respondents in due course will ultimately determine the veracity of this

factor.

[31] The parties are now in agreement that the determination of whether or not

they were ultimately in contempt of the order of 21 September 2015, can be

determined in the normal course. It should be mentioned that also the 1st respondent

seeks the committal of the applicant for contempt of court via the medium of the

counter- application filed of record.

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[32] In any event, different considerations will ultimately apply to the eventual

determination of the parties’ respective quests to have each other committed for

contempt of court.

[33] The agreed to stricter regulation of interim access, which will be reflected in

the order that this court will ultimately make, independent of the outcome of this

ruling, and which regulation “contemplates all possible outcomes of this application”,

independently, also proves that this facet no longer poses a determining factor.

[34] This brings me to the views expressed by the children involved. Obviously

and not surprisingly, they do not wish to have to go to the hostel. The court should

take their views into account. What should also be taken into account are S’s fears,

as apparently expressed, during the session of 22 September 2015, to Ms Vorback.

S has understood that the going to a hostel involves costs for her dad. This is a fear

that can easily be addressed and should have been addressed already. It does not

take much to explain to a child that this would not or should not concern her, as this

is an aspect that has been regulated or will be regulated by the adults involved.

Also, the worry that her dad might just come and pick them up, can, and should

already have been addressed. There is a court order in place regulating this facet,

which should be of some significance I trust. The same goes for S’s fears, as far as

her concerns, relating to her medication and diet, are concerned. The applicant is in

Windhoek and has understood that the enrolment process and the ultimate

placement in the hostel of her children remains her responsibility. It does not take

much to fathom than such responsibility would include the ensuring that S receives

her required medication and that arrangements for a suitable diet are made.

[35] If one then takes into account that it is the most normal thing in the world that

custodian parents very often, on a frequent- or even on a daily basis, take, and have

to take decisions, which are not in accordance with the wishes of their minor

children, the wishes of the children, expressed through their letters to the court, in

this application, although remaining a factor, ultimately cannot sway a decision of

what is in the best interests of the minor children involved, if regard has had to the

overall circumstances of this case.

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[36] If one then takes all the factors considered above into account, recognising at

the same time that the applicant continues to have the right to ultimately bring her

intended application for leave to appeal against the court’s order of 21 September

2015, and that she also has not lost the right to pursue the other relief that she

seeks, it also appears that there exist no grounds of urgency, at the moment, which

would have justified the non-compliance with the court’s order of 21 September

2015, in the sense that it, for instance, could have been said that the non-comliances

with the court’s orders were justified, by reason of some imminent or immediate

danger to the health and welfare of K and S. I also cannot find that any of the other

recognised exceptions apply in the circumstances of this case.

[37] I agree - and thus reiterate that: ‘ … the effectiveness of a court order lies in

the execution of its judgments and orders. To frustrate or disobey a court order

strikes at the foundation of the rule of law. The compliance with a court’s order thus

continues to remain an important matter of public policy. An order of court stands

until it is set aside. Until that is done, such order must be obeyed even if it maybe

wrong or if a party is dissatisfied with its outcome. A party that does not comply with

a court’s order or judgment, even if such non-compliance maybe excused in certain

circumstances, obviously does so at his or her peril.’

[38] The courts have emphasised that when it comes to cases concerning

children, the rules relating to the compliance with court orders should be applied in

all its strictness. I believe that it may be apposite to again quote from Hadkinson’s

case, as approved in Kotze and Hamutenya:

‘Disregard of an order of Court is a matter of sufficient gravity, whatever the order

may be. Where, however, the order relates to a child, the court is, or should be, adamant on

its due observance. Such an order is made in the interest of the welfare of the child and the

Court will not tolerate any interference with or disregard of its decisions on those matters.’

[39] With these weighty principles in mind, and also given my findings, as reflected

above, I believe that the circumstances pertaining to this case do not drive me to the

conclusion that the applicant should be excused from not first complying with the

court’s orders of 21 September 2015, even be it in amended form, relating to access,

before she would be entitled to re-enroll her application and be heard.

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[40] In such circumstances, the following orders are made:

1. The application is struck from the roll with costs.

2. The applicant is entitled to re-enroll the hereby struck application and to have

her application for leave to appeal heard, which is provisionally set down for

hearing on 07 October 2015 at 09h00, on proof, to be provided by way of

affidavit, that she, the applicant, has enrolled and physically placed Karlien

Martie McDonald and Samantha Sonja McDonald in the hostel of the

Windhoek Afrikaanse Privaatskool, pending the finalisation of the application,

which has been launched, in terms of section 12 of the Children Status Act 2

of 2008, by the 1st respondent.

3. In the event that the applicant has complied with the pre-condition set out

above in paragraph 2 of this order and wishes to re-enroll the struck

application and have her application for leave to appeal heard, it is further

ordered by agreement between the parties that:

(a) The application in respect of the relief sought in prayers 2 and 3 of the

Notice of Motion of her application, as well as the respondent’s counter

application, are to proceed in the normal course.

(b) The application for leave to appeal will then be heard at 09h00 on

Wednesday, 07 October 2015 and that in respect of that application:

(i) The 1st and/or 2nd respondent’s will not oppose the urgency of the

application and that the court will be called upon to determine the

merits of the application for leave to appeal.

(ii) The applicant is to then file her heads of argument by 17h00 on

Friday, 02 October 2015.

(iii) The 1st and/or 2nd respondent are to file heads of argument by

17h00 on Monday, 05 October 2015.

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4. It is further ordered by agreement between the parties, that paragraph 4, of

the order dated 21 September 2015, which regulates the access of the parties

to their minor children, in the interim, is hereby varied in the following

respects:

(a) that during the week, and while Karlien Martie McDonald and Samantha

Sonja McDonald are in the hostel of the Windhoek Afrikaanse

Privaatskool, the 1st and/or 2nd respondents will have no telephonic or

other access to the said children;

(b) that the said children be informed of this and be asked not to contact the

1st and/or 2nd respondents during the weekdays while they are in the

hostel of the Windhoek Afrikaanse Privaatskool.

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H GEIER

Judge

18

APPEARANCES

APPLICANT: Mr CJ Mouton

Instructed by Conradie & Damaseb, Windhoek

RESPONDENTS: Mr JP Ravenscroft-Jones

Instructed by Theunissen, Louw & Partners,

Windhoek