About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2024
>>
[2024] ZAFSHC 48
|
|
D.S.F v M.F and Another (347/2024) [2024] ZAFSHC 48 (16 February 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
YES/NO
Of
Interest to other Judges:
YES/NO
Circulate
to Magistrates: YES/NO
Application
no: 347/2024
In
the matter between:
D[…]
S[…] F[…]
Applicant
and
M[…]
F[…]
1
st
Respondent
THE
OFFICE OF THE FAMILY ADVOCATE,
RUSTENBURG
2
nd
Respondent
CORAM:
VAN ZYL, J
HEARD
ON:
8 FEBRUARY 2024
DELIVERED
ON:
16
FEBRUARY 2024
[1]
This is an urgent application which,
inter alia,
entails a
dispute in respect of the minor children`s primary residence and
contact rights pending a divorce action, together with
ancillary
relief.
[2]
Adv. HJ van der Merwe appeared on behalf of the applicant and Adv. N
Nortjé
on behalf of the first respondent (“the
respondent”).
Background:
[3]
The application papers are very voluminous and include other court
applications as
annexures thereto, which would necessitate lengthy
arguments. Due to time constraints as a result of a very busy
schedule of urgent
applications which were due to be heard on the
same day (Thursday) and the following day, I suggested that the
matter be postponed
for a week, which would also grant the parties
the necessary time to draft detailed supplementary heads of argument
in addition
to the concise heads which they have already filed, on
the basis that I will request the Judge President that the matter
again
be allocated to me, since I have already perused the papers.
[4]
After counsel took instructions, Mr Van der Merwe indicated that the
applicant agrees
to such an arrangement. Ms Nortjé, however,
indicated that it is her instructions to request that two of the
points in
liminé
raised by the respondent,
lis
pendens
and
res judicata
, be argued, without going into
the merits of the application, so as to at least utilize the
available time. She further submitted
that since it will be the end
of the matter should one of the two points be upheld, there will be
no necessity that the matter
be postponed for purposes of the hearing
of the merits thereof.
[5]
Mr Van der Merwe expressed his reservations whether the said two
points can be argued
and adjudicated without at the same time dealing
with the merits of the application.
[6]
However, because both parties were present in court, one of which is
from out of town,
I ruled that the said two points
in liminé
be argued and should one not be upheld, I will postpone the
application for two weeks calculated from the date of the hearing and
make a specific order regarding the filing of supplementary heads of
argument.
The
two points in
liminé
[7]
I have duly considered the arguments presented to me in respect of
the points of
res judicata
and
lis pendens
. However, I
have come to realize that I indeed cannot properly adjudicate the two
points without also taking certain aspects of
the merits of the
application into consideration.
[8]
In my view the application consequently needs to be postponed for the
adjudication
thereof in totality.
Order:
[9]
I consequently make the following order:
1.
The application is postponed to the opposed motion roll
of Thursday,
22 February 2024, at 9h30.
2.
The parties are requested and ordered to file supplementary heads of
argument in order to address the
issues in dispute in detail,
especially the merits of the application, and other issues which they
have not dealt with in detail
in their respective concise heads of
argument previously filed.
3. The
aforesaid heads of argument are to be filed at court via email to
h[...]@judiciary.org.za
as follows:
3.1 The
applicant on or before Monday, 19 February 2024, at 12h00; and
3.2 The
respondent on or before Wednesday, 21 February 2024, at 15h00.
4.
The applicant`s attorney of record is to ensure that the application
papers in the court file, which
will be available at the chambers of
Van Zyl, J, be properly filed, paginated and indexed on or before
Monday, 19 February 2024,
at 15h00.
[5] The
costs of 8 February 2024 stand over for later adjudication.
C.
VAN ZYL, J
On
behalf of the applicant:
Adv.
H. J. van der Merwe
Instructed
by
:
Symington
& De Kok Attorneys
BLOEMFONTEIN
On
behalf of the 1
st
respondent:
Adv.
N. Nortjé
Instructed
by:
McIntyre
& Van der Post
BLOEMFONTEIN