Brief Summary

Family Law — Custody and schooling of minor children — Applicant sought urgent relief to enroll children in a different school and to take one child for therapy without the first respondent's consent — Application deemed not urgent as it was brought after the academic year commenced and lacked factual support for urgency — First respondent demonstrated that children were enrolled in their current school and that the applicant's failure to pay fees was the source of the dispute — Court found that the applicant's conduct was detrimental to the children's best interests and declined to grant the relief sought, emphasizing the need for stability and contact between siblings during divorce proceedings.

Comprehensive Summary

Summary of Judgment

1. Introduction

This was an urgent application brought in the Gauteng Local Division, Johannesburg, in the context of ongoing and acrimonious divorce proceedings between spouses. The applicant (the husband) sought primarily to override the first respondent’s (the wife’s) consent in relation to the schooling and therapy of the parties’ minor children, and additionally sought relief aimed at disqualifying the second respondent (the wife’s attorney) from acting on the basis of an alleged conflict of interest.

The application was launched on 24 January 2020 and enrolled for hearing on 28 January 2020, with argument ultimately heard on 29 January 2020. Although the court found that the matter did not comply with the practice directives governing urgency and that the papers did not establish factual urgency, it nevertheless entertained the merits because the dispute implicated the best interests of minor children, particularly their schooling, and it considered it undesirable to adjudicate the issues piecemeal.

The subject-matter of the dispute concerned the children’s school enrolment (including whether one child should be moved from a private school to a government school) and the proposed counselling/play therapy, against the background of an existing Rule 43 interim order regulating aspects of residence pending further investigation by a court-appointed psychologist.

2. Material Facts

The material facts accepted by the court included that the parties’ minor children were S (12 years old, in Grade 7) and C (six years old, due to commence Grade 1). Up to 2019, both children attended a private school referred to as B, with S having attended since the beginning of her schooling and C having attended for approximately three years. The applicant sought to enrol both children at a government school, A Primary School in Benoni, notwithstanding that neither party resided in Benoni.

It was common cause that the parties were engaged in acrimonious divorce proceedings and that, before formal litigation commenced, the second respondent had been involved in mediation proceedings aimed at settling the divorce. It was also common cause that a Rule 43 application had been triggered after the applicant collected the children from school on 4 October 2019, and thereafter C was not returned to school (save for a few days), while the applicant also kept S out of school intermittently for a week at a time.

Pursuant to the Rule 43 proceedings, an interim order by agreement was granted on 12 December 2019. Under that arrangement, S’s primary residence was to be with the first respondent and C’s primary residence with the applicant, pending investigation and written recommendations by a psychologist, Dr Lynette Roux, tasked with conducting a comprehensive assessment relating particularly to residence and contact. At the time of this urgent application, Dr Roux had not yet commenced her investigation.

A key undisputed fact underlying the school dispute was that the applicant had not paid school fees since July 2019, resulting in arrears of approximately R65 000 and the school’s refusal to accept re-enrolment for the 2020 academic year without payment. The court recorded that it was not the applicant’s case that he lacked the means to pay. The dispute was further exacerbated by the applicant’s acrimonious stance towards the private school, including correspondence from the school’s legal representatives and a decision by the school to refuse the applicant access to the school premises. During argument, it was indicated that the applicant contemplated legal proceedings against the school, and his stance included a “blatant refusal” to allow C to attend B because of his dispute with the school.

As to S’s schooling, the applicant’s founding premise that the first respondent had failed to enrol S was undermined on the papers: the answering affidavit disclosed that the first respondent had borrowed funds to address the arrears and that S was enrolled and commenced the academic year at B on 15 January 2020. Although the applicant persisted in seeking to move S to A in the notice of motion, he ultimately abandoned that relief during oral argument and conceded that S should remain at B to complete her final year of primary school.

In relation to C, it was undisputed that C had effectively not been in school since October 2019, and the applicant did not demonstrate that he had taken reasonable steps to ensure C’s attendance during the remainder of 2019 or to secure enrolment for 2020.

On the conflict-of-interest relief against the second respondent, the court identified material disputes of fact. The first respondent and the second respondent asserted that the second respondent had at all times acted for the first respondent in the divorce proceedings and not for the applicant, and that this was known to the applicant. The applicant, in contrast, asserted that the second respondent had acted for him and family members in other matters over the years and that, in mediation consultations involving both spouses, the second respondent became privy to the applicant’s broadly described “financial and confidential” information. The court noted that the alleged confidential information was not pleaded with particularity.

3. Legal Issues

The central legal questions were whether the court should, pending the finalisation of the Rule 43 process and psychological investigation, grant orders dispensing with the first respondent’s consent in relation to the children’s schooling and proposed therapy, and whether it should grant final relief declaring a conflict of interest and preventing the second respondent from acting for the first respondent.

The dispute regarding schooling and therapy required the court to apply statutory principles concerning care, parental responsibilities, and the best interests of the child to the facts, involving a significant value judgment (best interests) and the exercise of discretion in crafting interim arrangements pending further investigation. The conflict-of-interest issue was primarily an application of legal principles to contested facts in motion proceedings, implicating the evidentiary approach applicable to final relief on affidavit.

The court also had to address, as a preliminary procedural matter bearing particularly on costs, whether the application met the requirements for urgency under applicable practice directives, and whether the applicant’s approach justified a punitive costs order.

4. Court’s Reasoning

Although the court considered that it would have been justified in striking the matter for lack of urgency due to non-compliance with the practice directives and an absence of factual substantiation for urgency, it proceeded to determine the merits because the relief implicated the children’s best interests, specifically their schooling. The court also allowed argument on the relief sought against the second respondent to avoid piecemeal adjudication and further costs.

In approaching the schooling and therapy relief, the court relied on the statutory framework in the Children’s Act 38 of 2005, including the regulation of care and the court’s powers under section 29(5), and emphasised that the framework is underpinned by the paramountcy of the children’s best interests. The court stated it had considered the principles in section 6 of the Act when assessing the children’s interests. It further referred to section 29(3), which empowers a court to grant an order unconditionally or on conditions or to refuse it, with the express limitation that an order may be granted only if it is in the child’s best interests.

The court regarded it as significant that the dispute was, in substance, precipitated by the applicant’s conduct—especially his failure to pay school fees despite being able to do so and his ensuing conflict with the private school. The court reasoned that this conduct failed to recognise the impact on the children and likely caused embarrassment, particularly to S. It found that the applicant had not advanced evidence demonstrating why attendance at B would not be in the children’s best interests, beyond the applicant’s own conflict with the school.

The court assessed the effect of the parties’ interim living arrangements, noting that the children were already separated by residence under the Rule 43 interim order. It accepted the first respondent’s concern that enrolling the children in different schools could further reduce sibling contact, including potentially through differing school holiday schedules between private and public schools. The court considered that instability in the children’s circumstances, against the backdrop of traumatic divorce proceedings, could be detrimental, and that the parents should seek to maximise rather than diminish sibling contact.

With respect to C, the court found the position “untenable” because C had effectively not been in school since October 2019, and the applicant had not shown that he took reasonable steps to secure schooling. The court characterised this as a breach of C’s constitutionally entrenched rights. The court further considered that the application was brought belatedly after the start of the school year, and that the relief sought (if granted) could have effects enduring beyond the Rule 43 process and potentially influence its outcome. It treated the applicant’s refusal to pay fees, despite ability, as evidence of prioritising his own interests over those of his son.

On therapy, while acknowledging that both children might require therapeutic intervention (counselling for S and play therapy for C), the court was not persuaded that unilateral authorisation should be granted at that stage. It reasoned that granting the order might fuel additional conflict, and that the already appointed psychologist, Dr Roux, was better suited to investigate the need for therapy and make recommendations to be considered in the pending Rule 43 proceedings.

The court concluded that the applicant had not established that dispensing with the first respondent’s consent (whether for schooling changes or therapy) would be in the best interests of either child. It therefore declined the primary relief sought. At the same time, to protect C’s immediate interests pending the Rule 43 process and Dr Roux’s report, the court fashioned an interim arrangement directing that C should remain at B and that the applicant should take all steps necessary to ensure C’s enrolment forthwith. The court also expressly expanded the scope of Dr Roux’s investigation to include the impact of the children’s separation, whether different schools were appropriate, whether therapy was required, and whether the children’s primary residence should remain separated.

On the relief aimed at removing the second respondent as attorney, the court treated the relief as final in nature and applied the approach applicable to motion proceedings for final relief, referencing Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd (and with reference also to National Director of Public Prosecutions v Zuma, Mbeki and Another Intervening in the context of those principles). On that approach, and accepting the respondents’ version together with admitted facts, the court found the applicant had failed to establish a proper case.

The court further found the relief sought against the second respondent to be legally flawed because the applicant could not point to authority supporting entitlement to the declaratory relief or removal of the opposing party’s attorney, and the invitation to develop the common law was declined in the absence of a proper case on the papers. After argument, the applicant sought to rely on Wishart and Others v Justice Blieden NO and Others, which in turn referred to Robinson v van Hulstenyn Feltham and Ford concerning the protection afforded to a former client where a practitioner holds confidential information that might be misused. The court reasoned that a fundamental enquiry was whether the second respondent possessed confidential information about the applicant derived from the applicant himself (and not from the first respondent). It held that this could not be resolved on the papers and that, in any event, the applicant’s allegations were too broad to discern what confidential information was at issue or to assess its confidentiality. The court also noted that important countervailing considerations—such as the client’s right to choose a legal practitioner and the practitioner’s right to choose a client—had not been addressed in the papers. It accepted that the applicant had alternative remedies and that the application, as framed, did not justify the relief sought.

On costs, the court applied the general principle that costs follow the result, found no basis to depart from it in the applicant’s favour, and held that a punitive costs order was warranted in light of the applicant’s conduct and approach to the litigation. The earlier finding that the matter lacked urgency also bore on costs.

5. Outcome and Relief

The application was dismissed. The court nevertheless issued ancillary and interim directions aimed at safeguarding the children’s interests pending the Rule 43 proceedings and the psychologist’s investigation. Dr Lynette Roux was directed to conduct additional investigations and report on the separation of the children and the effect of different school enrolment, the need for therapy and appropriate recommendations, whether separate primary residence was in the children’s best interests, and whether C should continue at B or attend A Primary School or another school identified by her. Pending the finalisation of that investigation and the Rule 43 proceedings, C was ordered to remain at B, and the applicant was directed to take all steps necessary to ensure C’s enrolment forthwith.

The applicant was ordered to pay the costs of both respondents on the attorney and client scale.

Cases Cited

Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd [1984] ZASCA 51; 1984 (3) SA 623 (A).

National Director of Public Prosecutions v Zuma, Mbeki and Another Intervening [2009] ZASCA 1; 2009 (2) SA 277 (SCA).

Wishart and Others v Justice Blieden NO and Others [2014] ZASCA 120 (19 September 2014).

Robinson v van Hulstenyn Feltham and Ford 1925 AD 12.

Legislation Cited

Children’s Act 38 of 2005, including sections 6, 23, 29(3), and 29(5).

Rules of Court Cited

Uniform Rules of Court, Rule 43.

Held

The court held that the applicant failed to establish, on the papers, that dispensing with the first respondent’s consent regarding the children’s schooling and therapy would be in the best interests of either child, as required by the Children’s Act. The application for such relief was therefore refused.

The court held further that the applicant failed to make out a proper factual or legal case for final declaratory and related relief preventing the second respondent from acting as the first respondent’s attorney on grounds of conflict of interest. The application against the attorney was dismissed, with the court emphasising the inadequacy and generality of the allegations of confidential information, the existence of unresolved factual disputes on affidavit, and the need to consider countervailing rights concerning choice of legal representation.

Despite dismissing the application, the court made interim directions to protect C’s immediate educational interests by ordering that C be enrolled and remain at the private school B pending the psychologist’s investigation and the Rule 43 proceedings, and it expanded the scope of the psychologist’s investigation to address schooling, separation, therapy, and residence issues. The applicant was ordered to pay punitive costs on an attorney-and-client scale.

LEGAL PRINCIPLES

The best interests of the child are paramount in matters concerning care and related decisions, and a court may grant relief affecting a child’s care arrangements only if the relief is shown to be in the child’s best interests, as reflected in the Children’s Act 38 of 2005, including the court’s powers and limitations under section 29(3) and its investigative facilitation under section 29(5), read with the guiding considerations in section 6.

In motion proceedings seeking final relief, factual disputes are determined in accordance with the approach in Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd [1984] ZASCA 51; 1984 (3) SA 623 (A), namely on the respondents’ version together with admitted facts in the applicant’s papers, unless exceptional circumstances justify another approach.

A legal practitioner may be restrained from acting against a former client where the practitioner possesses confidential information of the former client that may be misused, as reflected in the principles discussed in Wishart and Others v Justice Blieden NO and Others [2014] ZASCA 120 (19 September 2014) with reference to Robinson v van Hulstenyn Feltham and Ford 1925 AD 12, but allegations of such confidential information must be pleaded with sufficient particularity and must be assessed alongside countervailing considerations such as the client’s right to choose a legal practitioner and the practitioner’s right to choose a client.

Where litigants fail to comply with requirements for urgency and adopt unreasonable litigation conduct, courts may still adjudicate matters implicating children’s welfare but may reflect procedural and conduct failures in punitive costs orders, applying the general principle that costs follow the result unless there is a reason to depart.

M S v L S and Another (31480/2019) [2020] ZAGPJHC 37 (5 February 2020)