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Cancer-stricken mom wins battle to keep child in SA

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APPEAL UPHELD . . . The Supreme Court of Appeal in Bloemfontein has ruled in favour of a cancer-stricken mother who was fighting to keep her child in South Africa

The Supreme Court of Appeal (SCA) has upheld, with costs, an appeal by a South African woman suffering from cancer who initially approached the Western Cape High Court seeking an interdict to stop her minor daughter from being returned to her father in the United Kingdom should she succumb to the disease, fearing the child could face harm.

This appeal concerned the return of a four-and-a-half-year-old girl from Cape Town to the UK in terms of the Hague Convention on the Civil Aspects of International Child Abduction, 1980.

The child’s mother, who was diagnosed with colorectal cancer while living in the UK, decided to come to South Africa primarily for the purpose of enabling her to pursue available treatment options.

The understanding was that the child’s mother would return to the UK with the child after her successful medical treatment in South Africa or, alternatively, if nothing further could be done to treat her cancer, the child and the mother would return to the UK.

Accompanied by the father and the child, she left the UK for South Africa in September 2019.

Some few weeks later the child’s father left South Africa for the UK.

The child remained in South Africa with the mother and was being cared for by her maternal aunt and maternal grandmother.

When the child’s mother realised that her chances of recovery were non-existent, she expressed the wish that should she become too ill to take care of the child, and in the event of her death, she would like the child to remain in South Africa and be raised by the aunt.

The child’s father did not agree to the child remaining permanently in South Africa under any circumstances.

He approached the Central Authority for England and Wales and submitted a request for the return of the child under the Convention on the grounds that the child’s retention in South Africa by her mother without his consent was wrongful.

The mother opposed the return of the child to the UK on the grounds that the father had consented to the child remaining with her in South Africa for as long as she was undergoing treatment for cancer.

In the alternative, she opposed the Convention application on the grounds that there was a grave risk that the child’s return to the UK would expose the child to both physical and psychological harm and also place the child in an intolerable situation.

The High Court dismissed the mother’s defences and ordered the child to be returned to the UK subject to certain conditions.

Two key issues arose in the appeal.

The first was whether the High Court’s rejection of the mother’s defences under article 13 of the Convention and ordering the child’s return to the UK was correct.

The second issue was whether further evidence should have been admitted on appeal particularly that which related to the events which occurred subsequent to the death of the child’s mother and whether there was a grave risk that the court order for the return of the child to the UK would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

The new evidence sought to be adduced dealt with the functioning of the child subsequent to the death of her mother and the likely impact of her death on the child psychologically and emotionally.

The SCA observed that this assessment could not have been conducted while the mother was still alive.

In relation to the question whether the High Court was correct in ordering the return of the child to the UK, the SCA held that any further retention by the mother or the appellant, through the mother’s stated intention, constituted a wrongful retention of the child within the meaning of international law.

It held that the High Court was, therefore, bound to order the return of the child to the UK unless she risked facing harm there.

In terms of article 13(b) of the Convention (article 13(b) the court is not obliged to order the return of the child if a person opposing the child’s return application establishes that “there is a grave risk that the [child’s] return would expose [him or her] to physical or psychological harm or otherwise place the child in an intolerable situation”.

The High Court rejected the mother’s defence on the grounds that there was no evidence that should the child be ordered to return to the country of the child’s habitual residence, the child would be faced with the risk of grave psychological and physical harm or that the child may otherwise be placed in an intolerable situation.

The SCA held that the High Court erred in rejecting the mother’s evidence which showed that the removal of the child from her primary attachment figure in the form of her aunt and safe and secure environment will expose her to the risk of grave psychological and physical harm or otherwise place her in an intolerable situation and that the mechanisms in place in the UK are not sufficient to ameliorate such harm to which the child will be exposed on her return to the UK.

In its ruling, the SCA set aside the order of the High Court and replaced it with the following: “The application for the return of the child in terms of the Hague Convention on the Civil Aspects of International Child Abduction, 1980, is dismissed with costs including costs of two counsel.” – Staff Reporter

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Guptas lose application to have restraint order case postponed

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NO SMILING MATTER . . . An interim restraint order against a company that Atul Gupta, seen in this file photo, co-owns with his brother and their wives remains in force

The Free State High Court on Friday dismissed a last-minute application brought by the directors of the Gupta-owned slandsite Investments 180 (Pty) to postpone the return day of the provisional restraint order against company, Iqbal Sharma and others.

Acting Judge Neil Snellenburg will provide a written judgment for dismissing the postponement application on Monday.

The directors sought a postponement pending their application to the Supreme Court of Appeal where they are appealing against a High Court ruling passed in August 2021 that said the business rescue practitioners of Islandsite, not the directors, have the authority to represent the company in the restraint proceedings.

Investigating Directorate spokesperson Sindisiwe Seboka said in a statement the interim restraint order will remain in force until the next court hearing on 20 and 21 October, when the confirmation hearing is expected to be heard.

The assets under restraint include properties of Iqbal Sharma and his wife, his UAE-registered company, Issar Global, his wife Tarina Patel-Sharma, as well as all property of Islandsite, which is owned by Atul and Rajesh Gupta and their respective wives, Chetali and Arti Gupta.

The interim restraint order was granted in June 2021, in terms of the Prevention of Organised Crimes Act (POCA).

Sharma’s assets that form part of the curator’s inventory include his Sandton home valued at over R12-million.

The property was featured on the lifestyle television programme, Top Billing, and is owned by Issar Global.

Other assets include movable property valued at R500 000, a Porsche and a R1.3 million sectional title home in Sandton.

Properties owned by Gupta family company Islandsite that form part of the inventory include a house worth R21-million in Constantia, Cape Town, and a R12-million house in Saxonwold, Johannesburg.

Said Seboka: “The interim restraint order continues to run . . . that means the curator that is looking after the assets remains in place, meaning there is no chance for those assets being disseminated.

“The state is quite comfortable that the assets will not be taken abroad or be given to other people, in terms of the shares.

“They continue to be in safekeeping.

“For us that is pivotal and the court has found enough evidence in that respect.” – Staff Reporter

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Ex-MEC faces probe over failed R1-billion Free State housing project

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NO PROPER LEADERSHIP . . . Former Free State MEC for human settlements Mosebenzi Zwane criticised

The State Capture Commission wants former Free State MEC for human settlements Mosebenzi Zwane investigated for failing to provide “proper provincial leadership” in a failed R1-billion provincial housing project.

The department’s former head, Nthimotse Mokhesi, told the commission, led by Chief Justice Raymond Zondo, that his office had made an advance payment of more than R500-million to the project’s contractors before any work was done.

Described in the fourth part of the State Capture Commission’s report as a “dismal failure”, the housing project was dogged by several factors including a decision by former Free State premier Ace Magashule to build bigger RDP houses from the initial 40-square-metre units without consulting the provincial human settlements department and the contractors.

The commission found that Zwane, the human settlements MEC at the time, “failed to provide proper provincial leadership” with regard to the R1-billion housing project.

The report criticised Magashule for not monitoring projects and not holding Zwane accountable.

It said instead Magashule made Zwane the MEC for agriculture, “where he continued with his dismal performance”, resulting in the Estina/Vrede Dairy Farm collapse. – Staff Reporter

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Magashule escapes Zondo rap over asbestos project ‘scam’

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ASBESTOS PROJECT CASE . . . Former Free State premier Ace Magashule is facing charges of corruption, fraud, theft and others together with 15 co-accused

Chief Justice Raymond Zondo has not made any recommendations in his latest state capture report for a criminal investigation against former Free State premier Ace Magashule for his role in the failed 2014 asbestos eradication project for which he is currently standing trial.

Zondo, in the fourth part of the State Capture Commission’s report, instead recommended that the National Prosecuting Authority (NPA) consider charges against the head of the Free State human settlements department, Nthimotse Mokhesi; businessman Edwin Sodi; and former director-general of the department of human settlements Thabane Wiseman Zulu for their roles in the asbestos audit and removal debacle.

Magashule is facing charges of corruption, fraud, theft and others together with 15 co-accused who include Mokhesi, Sodi, Zulu and several companies for their part in the asbestos contract worth over R255-million.

The report also urges the government to seek legal opinion on whether it could recover the money paid to Sodi’s company Blackhead Consulting and its joint venture partner Diamond Hill to audit and remove asbestos roofing on identified houses in the Free State.

It also found the Blackhead Consulting/Diamond Hill joint-venture lied to the provincial authorities about its ability to do the job.

The use as well as the manufacture and processing of asbestos was banned in South Africa in March 2008 as it is a serious health hazard to the lungs.

The Free State human settlements department embarked on the project after it approved an unsolicited proposal from from the Blackhead Consulting/Diamond Hill joint-venture.

This, according to the report, was done without following any competitive process.

“The department paid about R255-million to the joint-venture but ultimately no asbestos was removed from the roofs of houses,” the report says.

“It turned out that this joint-venture was not even qualified to undertake the removal of asbestos despite the fact that they had told the department in their proposal and in the service legal agreement that they signed with the provincial department that they had the qualifications, skill, expertise and experience required for the job.”

The report described the project as “a considerable scam from its inception”.

It said it was clear the project “was always intended to unlawfully benefit a certain business consortium”, adding those benefits were also intended for various government officials.

Just as in the matter before the Free State High Court, the report indicates that Sodi paid R650 000 towards the purchase of a property for Mokhesi in Bloemfontein.

“The commission is satisfied that this payment was made as a reward or inducement or both for the asbestos contract,” said the report.

It found Mokhesi as a central figure in the awarding of the contract to the Blackhead Consulting/Diamond Hill joint-venture.

The human settlements MEC at the time, Olly Mlamleli, has not been implicated as the investigation did not look into why she did not realise that there was a problem with the project and intervene timeously in order to save public funds from being wasted.

The report also states that Magashule could have intervened together with Mlamleli.

The report wants Mokhesi investigated for corruption following his decision to contract the Blackhead Consulting/Diamond Hill joint-venture.

It has also recommended an investigation for possible prosecution for breaching provisions of the Public Finance Management Act.

He is already facing similar charges in the on-going case.

The commission also found that Sodi paid R600 000 into the account of a Ballito car dealership in December 2015 with reference “TZ” which said was common cause it stood for Thabane Zulu.

When he appeared at the commission in 2020, Sodi told the commission in 2020 that he owed Zulu for alcohol he had bought at his entertainment venue outside Pietermaritzburg.

When Zulu was asked how Sodi’s alcohol bill reached hundreds of thousands of rands, he told the commission Sodi often hosted parties for “dignitaries” at his KwaZulu-Natal home.

“Instead of taking the money I decided to instruct him to deliver the money where I wanted it,” he said.

The explanations by the two did not convince the commission which concluded the money “may well have been a bribe or reward to Mr Zulu for his role in facilitating the award of the asbestos contract”.

It recommended that criminal charges relating to corruption or any other applicable crime should be pursued against Zulu for the R600 000 that Sodi paid. – Staff Reporter

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