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[2023] ZAKZPHC 117
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MM v NM and Others (15133/23P) [2023] ZAKZPHC 117 (18 October 2023)
FLYNOTES:
FAMILY – Children – School –
Parties
never married and child age 8 – Mother with her children
asked to leave father’s home – Mother removing
child
from private school and placing him in public school –
Father seeking relief that mother be directed to facilitate
child’s attendance at private school – Children’s
court and investigation by family advocate will allow
for proper
ventilation of issues – Best interests of child –
Application manifestly not urgent and struck from
roll.
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
No: 15133/23P
In the
matter between:
MM
FIRST APPLICANT
and
NM
FIRST RESPONDENT
THE
OFFICE OF THE FAMILY ADVOCATE
SECOND
RESPONDENT
ST.
CHARLES COLLEGE
THIRD RESPONDENT
ALSTON
PRIMARY SCHOOL
FOURTH RESPONDENT
Coram:
Davis AJ
Heard:
13
October 2023
Order:
13
October 2023
Reasons:
18 October 2023
REASONS
FOR JUDGMENT
Davis
AJ
Introduction
[1]
These are the reasons for the granting the order on 13 October 2023,
which are set
out at the end of this judgment. Noting the need to
protect the identity of the minor child in this matter and will
simply be referred
to as the child. The applicant will be referred to
as the applicant and the first respondent as the respondent. The
second to fourth
respondents play no role in the application and will
be referred to as, the Office of the Family Advocate, St. Charles
College
and Alston Primary School.
[2]
This is an opposed urgent application in terms of which the applicant
seeks interim
relief in the following terms:
(a)
The first respondent is hereby directed to continue facilitating the
attendance of the child,
a boy born on 18 January 2015, to St.
Charles College where he is enrolled.
[1]
(b)
The first respondent is ordered to pay the costs of the application
on the scale as between
attorney and client.
(c)
That the relief operate as interim relief pending the finalisation of
this application.
[3]
The applicant is represented by Mr. Miya who also signed the
certificate of urgency.
The respondent appeared without legal
representation and there is no appearance by the second to fourth
respondents, and neither
is there any relief sought from them.
Urgency
[4]
A litigant that approaches the court for relief on an urgent basis
must comply with Uniform
rule
6(12)
(b)
.
[2]
The rule reads;
‘
In
every affidavit filed in support of any application under paragraph
(a)
of this subrule, the applicant must set forth explicitly
the circumstances which is averred render the matter urgent and the
reasons
why the applicant claims that applicant could not be afforded
substantial redress at a hearing in due course.’
[5]
The rule requires two legs to be present before urgency can properly
be founded, namely;
first, the urgency should not be self-created
[3]
and secondly, it must provide reasons why substantial relief cannot
be achieved in due course. The importance of these provisions
is that
the procedure set out in
rule
6(12)
is
not there for the mere taking.
[6]
Notshe AJ in
East
Rock Trading 7 (Pty) Ltd v Eagle Valley Granite (Pty) Ltd
[4]
stated:
‘
The
import thereof is that the procedure set out in rule 6(12) is not
there for taking. An applicant has to set forth explicitly
the
circumstances which he avers render the matter urgent. More
importantly, the Applicant must state the reasons why he claims
that
he cannot be afforded substantial redress at a hearing in due course.
The question of whether a matter is sufficiently urgent
to be
enrolled and heard as an urgent application is underpinned by the
issue of absence of substantial redress in an application
in due
course. The rules allow the court to come to the assistance of a
litigant because if the latter were to wait for the normal
course
laid down by the rules it will not obtain substantial redress.’
[7]
The import of this is that the test for urgency begins and ends with
whether the applicant
can obtain substantial redress in due course.
It means that a matter will be urgent if the applicant can
demonstrate, with facts,
that the applicant requires immediate
assistance from the court, and that if his application is not heard
on an urgent basis that
any order that he might later be granted will
by then no longer be capable of providing him with the legal
protection he requires.
[8]
First, De Wit,
[5]
in his article
discussing
East
Rock Trading
,
with regards to the harm the applicant may suffer where the matter is
not dealt with on an urgent basis, wrote as follows:
‘
harm
does not found urgency. Rather, harm is a mere precondition to
urgency. Where no harm has, is, or will be suffered, no application
may be brought, since there would be no reason for a court to hear
the matter. However, where harm is present, an application to
address
the harm will not necessarily be urgent. It will only be urgent if
the applicant cannot obtain redress for that harm in
due course.
Thus: harm is an antecedent for urgency, but urgency is not a
consequence of harm.’
[9]
Secondly
,
Strydom
J in
Roets
N.O. v SB Guarantee Company (RF) (Pty) Ltd
[6]
regarding the explanation that the application must furnish as to why
the matter is not urgent and cannot be brought be in the
ordinary
course, held:
‘
urgency
which is self-created in a sense that an applicant sits on its
laurels or take its time to bring an urgent application can
on its
own lead to a decision that a matter is struck off the roll. It would
of course depend on the explanation provided but if
the explanation
is lacking and does not cover the full period from when it was
realised, or should have been realised, that urgent
relief should be
obtained. If this criteria to strike a matter from the roll is not
available to a court, a court would be compelled
to deal with an
urgent application where for instance nothing was forthcoming for
weeks or months and a day or two before an event
was going to take
place a party who wants to stay that event can approach a court and
argue that if an order is not immediately
granted such party would
not obtain substantial redress in due course. If this is the approach
to be adopted by a court there exist
no reason why any explanation
for the delay should be provided at all. An applicant only have to
show that should interim relief
not be granted it will suffer
irreparable harm.’
[10]
If this was not a criterion by which one could strike a matter from
the roll a court would be
compelled to deal with an urgent
application where for instance nothing was forthcoming for weeks or
months and a day or two before
an event was going to take place a
party who wants to stay that event can approach a court and argue
that if an order is not immediately
granted such party would not
obtain substantial redress in due course. If this approach was
adopted in matters of urgency there
exists no reason why any
explanation for the delay should be provided at all. An applicant
would only have to show that should
interim relief not be granted it
will suffer irreparable harm.
This
would be an untenable situation.
[7]
[11]
The applicant relies on the following factual matrix contained in his
founding affidavit to support
his application for urgent relief:
[8]
(a)
He was involved in an intimate relationship with the respondent. The
parties were never
married.
(b)
Out of this union their only child, a son, was born on 18 January
2015, and he is currently
eight years of age.
(c)
Throughout the duration of their relationship they lived in
Scottsville, Pietermaritzburg.
(d)
Paradoxically the applicant avers that the home was a warm and happy
home until May 2023,
but later in his founding affidavit avers that
the respondent had left the family home in January 2023, in order to
live with her
new boyfriend.
(e)
In May 2023 the applicant sought a protection order against the
respondent’s adult
daughter alleging drunken and inappropriate
sexual behaviour that was disrupting his home.
(f)
In May the applicant requested the respondent and her family to leave
the premises.
(g)
At the time their child was enrolled at St. Charles College along
with one of the respondent’s
minor children.
(h)
Before the commencement of the third term the respondent unilaterally
removed their son
from the school in defiance of the applicant’s
parental rights or knowledge, however he acknowledges being aware of
the intended
removal as the school had told him.
(i)
Fees were owing at the time but have apparently been paid as at
September 2023.
(j)
The applicant avers that the removal from St. Charles College was not
in the
best interests of their child.
(k)
Their son is now enrolled at Alston Primary School in
Pietermaritzburg with no input
in this decision from him.
(l)
This was in breach of his parental rights as protected by section 31
of the
Children’s Act 38 of 2005.
(m)
The child attended at Alston Primary School for the entire third
term, the fourth and final term
of the year commenced this week, on
10 October 2023.
(n)
A children’s court enquiry aimed at settling the issue of care
and contact and other
matters pertaining to their minor child has
been enrolled at the local Magistrates’ Court and was supposed
to be heard on
26 September 2023.
(o)
The enquiry was postponed till 5 December 2023, due to the illness of
the applicant.
(p)
The applicant’s concern about the education of his child
including the sporting programme,
in particular cricket makes this
matter urgent.
[12]
I applied the paramountcy principle as enshrined in section 28(2) of
the Constitution
[9]
in respect
of the minor child at all times during these proceedings and am
further acutely aware of the need to endeavour to protect
the child
from the negative consequences that might befall the child in this
hearing.
Submissions
on behalf of the applicant
[13]
Mr. Miya submitted that as the best interests of the child was
paramount in this matter, the
constitutional imperative demanded that
the child be returned to St. Charles College from where the
applicant’s child had
been unlawfully removed. This, in his
view made this matter urgent. The submission being that as a holder
of parental rights, the
removal without informing or engaging with
the applicant breaches those parental rights. Mr. Miya was
constrained to concede that
the respondent had left the family home
at the demand of the applicant and that this had changed the
circumstances of the child.
Mr. Miya submitted that the urgency was
not self-created, but he could not convincingly assert that
substantial redress was not
shortly attainable in the Children’s
Court.
Submissions
of the respondent
[14]
The respondent was at court sans legal representation due to the
truncated notice given to her.
She was in Johannesburg at the time
service was attempted but was told of this date by the applicant’s
attorneys. When she
addressed the application she advised that she
was the primary care giver, she had paid a substantial portion of the
school fees
for St. Charles College. When the applicant evicted her
from the family home, she acted in the best interest of all of her
children,
including the applicant’s child and enrolled him in a
state school nearby. According to the respondent the child has
excelled
at his new school and is happy.
Analysis
[15]
The children’s court enquiry initiated by the respondent is
designed, as its primary purpose,
to protect the child and settle how
both parents’ parental rights and responsibilities towards the
child will be regulated.
The decision of that court is based on the
proper ventilation of all the facts, in conjunction with a report
from the Office of
the Family Advocate, in which they set out their
recommendations based on the facts and issues, following upon an
investigation
into the affairs of the litigants before that court.
The presiding officer in the children’s court will then be in
the best
possible position to make findings on what course of action
is in the best interests of the child.
[16]
This report and the subsequent children’s court decision on the
matter will substantially
address all the concerns raised by the
applicant in these proceedings. The children’s court is the
proper forum whereby the
applicant can ventilate and vindicate his
parental rights. This is, with respect, self-evidently obvious even
from a mere reading
of the papers of the applicant.
[17]
The reality is that the child is enrolled in a school, has completed
an entire term at that school
and the fourth and final term of the
school year has already commenced. In July before the commencement of
the third term the applicant
was aware that the respondent wished to
remove their child from St. Charles College, fees were in arrears and
on 28 June 2023 the
school bursar had written to them about the
outstanding fees. By this time the respondent had at the instance of
the applicant
left the family home and was residing elsewhere. The
applicant was well aware that the respondent had made a decision to
remove
the child from St. Charles College from the beginning of the
third term and that the outstanding fees was not the only
consideration.
[18]
Notwithstanding the applicant waits from mid-July 2023, the
independent schools went back to
school for the third term on 18 July
2023, until October to approach this court on an extremely urgent
basis, filling the application
on 11 October 2023, after some 12
weeks had lapsed. In the interim his son has been enrolled in a
school, is receiving tuition
at an accredited learning institution
appropriate for his age. There is actually no explanation for the
long delay, good or otherwise.
[19]
The urgency requirement contained in Uniform rule 6 is two-fold,
the
urgency must not be self-created and
that the applicant is
unable to obtain substantial redress at a hearing in
due course. On both these scores the
applicant’s contention
that the matter is urgent fails to pass judicial muster by a
considerable margin. He had ample opportunity
if he perceived the
matter to be urgent to approach this court for relief in July, yet he
waits till a children’s court enquiry
is convened in September
2023 before, he approaches this court for relief. The urgency is
self-evidently self-created.
[20]
The children’s court is currently seized with this exact issue
pertaining to the parties’
child’s schooling. They will
deal with the issues of access, custody and maintenance in a holistic
manner. These are the
identical issues that the applicant raises in
this supposedly urgent application before this court. The children’s
court
is the appropriate court to resolve exactly the issues raised
in this application.
[21]
I consider the all-pervasive standard of the best interests of the
child as stated in section
28(2) of the Constitution insofar as it
pertains to litigation involving children. On the papers presented in
this application
there is not a single piece of evidence before this
court to suggest that the current status quo is not in the best
interests of
the child. For completeness, the child is at a
recognised accredited school, attending with a sibling and living
with his mother
as his primary-care giver, he is in the last term of
the year and his mother, the respondent, has approached the proper
court to
ensure that his future needs are taken care of. The
children’s court, and the investigation of the Office of the
Family Advocate,
will allow for a proper ventilation of the issues of
access, custody and visitation, and the decision reached will always
bear
in mind what is in the best interests of the child.
[22]
The premise of the application, seems to be that as the applicant was
at an elite independent
or private school, and that his subsequent
enrolment at an ordinary state school is automatically not in the
best interests of
the child. This premise is flawed. It might be that
it could be in the best interests of the child for this to occur, but
that
finding could only be arrived at after a full ventilation of the
current circumstances surrounding the child. That enquiry would
not
only be limited to what the respective schools offer, but a complete
assessment and consideration of what is in the best interests
of the
child.
[23]
It seems to be premised on the supposed ‘fact’ that an
independent school is automatically
providing a superior quality
education and access to sporting facilities than a state school. No
evidence is placed before this
court that this is so. It might well
be in the best interests of the child not to disrupt his schooling
after the fourth term has
commenced. The proper place for that
determination to occur is the children’s court.
[24]
The application is manifestly not urgent, it falls to be struck from
the roll.
Costs
[25]
Costs, in the usual manner, normally follows the result. The
applicant had sought costs on the
attorney and client scale in a
matter manifestly not urgent. The respondent due to constraints of
time has fortunately for the
applicant not instructed legal
representation. With the respondent undefended I make no order as to
costs.
Order
[26]
In light of the above, the following order was granted on 13 October
2023:
1.
The applicant's application is struck off the
roll for lack of urgency.
2.
There is no order as to costs
____________________________
DAVIS AJ
Date
of Hearing: 13 October 2023
Date
of Order: 13
October 2023
Date
of Reasons 18 October 2023
For
the Applicant
Mr. S Miya
Tatham
Wilkes Inc.
Applicants
Attorneys
200
Hoosen Haffejee Street
Pietermaritzburg
E-mail
:
nabeel@tathamwilkes.co.za
(Ref
NE Dhooma/13T140523)
For
the Respondent
In Person
Pietermaritzburg
Kwazulu-Natal
[1]
As
per the numbering in the notice of motion at 2.
[2]
Uniform rules of the High Court.
[3]
Nelson
Mandela Metropolitan Municipality v Greyvenouw CC
[2003]
ZAECHC 5
;
2004 (2) SA 81
(SE) paras 23, 33-34, and
Rokwil
Civils (Pty) Ltd and others v Le Sueur N.O and others
[2020]
ZAKZDHC 61 paras 16-19.
[4]
East
Rock Trading 7 (Pty) Ltd and another v Eagle Valley Granite (Pty)
Ltd and others
[2011] ZAGPJHC 196 para 6.
[5]
V de Wit ‘The correct approach to determining urgency’
(2021) 21(2)
Without
Prejudice
12 at 13.
[6]
Roets
N.O. and another v SB Guarantee Company (RF) (Pty) Ltd and others
[2022] ZAGPJHC 754 para 26.
[7]
See
Schweizer
Reneke Vleis Maatskappy (Edms) Bpk v Die Minister van Landbou en
andere
1971 (1) PH F11 (T).
[8]
The
application papers at 6-23.
[9]
Section 28(2) of the Constitution provides that ‘A child's
best interests are of paramount importance in every matter
concerning the child.’ In all actions concerning children,
whether undertaken by public or private social welfare institutions,
courts of law, administrative authorities or legislative bodies, the
best interests of the child shall be a primary consideration.
The
best interests of the child is expanded on in section 7, and set out
in section 9 of the Children’s Act 38 of 2005.
Section 9
simply states: ‘In all matters concerning the care, protection
and well-being of a child the standard that the
child's best
interest is of paramount importance, must be applied.’