In the matter between :
LISA TRACY SONDERUP (previously TONDELLI) APPLICANT and
ARTURO TONDELLI FIRST RESPONDENT
THE FAMILY ADVOCATE SECOND RESPONDENT
AFFIDAVIT
I, the undersigned,
KELLY WIGGINS,
do hereby make oath and state that :
1 I am a qualified attorney of the above Honourable Court practising as such as an
associate in the firm of Smith Tabata Loon & Connellan, Port Elizabeth.
2 I represent the Applicant herein and I am duly authorised by Applicant to bring
this application and to depose to this affidavit.
3 The facts set out herein fall within my own personal knowledge unless the context
indicates otherwise and are to the best of my knowledge and belief true and
correct.
4 This is an application in which the Applicant seeks a certificate by this
Honourable Court in terms of Constitutional Court Rule 18(2), alternatively, leave
to appeal to the Supreme Court of Appeal alternatively the Full Bench Division of
the Eastern Cape High Court.
5 The constitutional issues raised in this matter are :
5.1 The interplay between the Hague Convention and the Constitution.
5.2 The impact, in particular, of section 28 of the Constitution on the Hague
Convention.
5.3 The fact as to whether the only issue was whether Sofia’s return to British
Columbia might place her in an intolerable position. The Court should
with respect have held that it should also have been investigated whether it
would be in Sofia’s best interests to return to British Columbia, albeit for a
custody hearing only.
5.4 The question as to whether, even if the situation that Applicant finds
herself in, has been created by herself, the best interests of Sofia should
nonetheless not still be paramount.
5.5 The question as to whether there is a conflict between the Hague
Convention and Chapter 2 of the Bill of Rights, and in particular section
28(2) thereof. It will be argued that if “intolerable”, as used in the
Convention, means a higher test and more than “best interests” of a minor,
there is a very real conflict.
5.6 The question as to whether the best interests of Sofia should not be an
alternative reason for refusing an application for return.
5.7 The question as to whether the provisions of section 28(1) of the
Constitution, namely the rights of Sofia regarding family or parental care,
basic health care or social services, and to be protected from maltreatment,
neglect, abuse and degradation, and the provisions of section 28(2) should
not be taken into account when the request for the return of Sofia under
the Convention is considered, and whether this should not be read into the
Convention, or is implied or expressly provided for in the Convention as
another reason for a refusal in a relevant case.
6 On 18 October 2000 a judgment of His Lordship Mr Justice Jennett in the above
matter was handed down in Port Elizabeth. The effect of this Order was that the
minor child Sofia Tondelli had to be returned to Canada and that the Court of
matter and the finding of His Lordship are set out in the judgment annexed hereto
as annexure “B”.
7 The grounds of appeal are set out in annexure “A” hereto.
8 The constitutional points have been fully canvassed and dealt with in the
judgment of the learned Judge a quo and in the circumstances I respectfully
submit that :
8.1 the constitutional matters in this case are of substance and are such on
which a ruling by the Constitutional Court is desirable and in the interests
of justice;
8.2 the evidence in these proceedings is sufficient to enable the Constitutional
Court to deal with and dispose of the matter without having to refer the
case back to this Honourable Court for further evidence;
8.3 there is a reasonable prospect that the Constitutional Court will reverse or
materially alter the learned Judge’s decision if permission to bring the
appeal is given by the Constitutional Court;
8.4 it is in the interests of justice for the matters presently under consideration
to be brought directly on appeal to the Constitutional Court.
9 A draft Order is annexed as Annexure “C”.
WHEREFORE I respectfully pray that it may please this Honourable Court to grant an Order in terms of the Order prayed as set out in annexure “C” hereto.
_______________________________
KELLY WIGGINS
SWORN TO BEFORE ME AND SIGNED in my presence at
this day of 2000, the Deponent having declared that she knew and understood this affidavit, that she had no objection to taking the prescribed oath and that she considered the prescribed oath to be binding on her conscience.
_______________________________
COMMISSIONER OF OATHS
