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[2024] ZAFSHC 207
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D.G.S.F v M.F and Another (347/2024) [2024] ZAFSHC 207 (2 July 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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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
Case
number: 347/2024
In
the matter between:
D.
G. S. F.
Applicant
(Identity
number: 6[…]
and
M.
F.
1
st
Respondent
(Identity
number: 8[…])
THE
OFFICE OF THE FAMILY ADVOCATE,
RUSTENBURG
2
nd
Respondent
CORAM:
VAN ZYL, J
HEARD
ON:
22 FEBRUARY 2024
DELIVERED
ON:
2 JULY 2024
[1]
This matter involves two minor children and therefore the identity of
both parties and the minor children
are being concealed.
[2]
This is an application brought in terms of Rule 6(12) wherein the
applicant, in terms of the notice of motion,
is seeking, in addition
to condonation, relief in the following terms:
“
2.
That the court order of the domestic violence court under case number
1060/2022 in the Magistrate’s
Court of the District of Tshepong
held at Bloemfontein dated 13 April 2022 be set aside,
alternatively
that the order be varied in accordance with prayer 3 below;
3.
That, pending the finalization of the divorce action instituted in
the Regional Court Division
of North-West (Brits) under case number
NW/BRT/RC/116/2022:
3.1
The primary residence of the minor children, … [A.J.F] and …
[G.L.F] shall vest with the
applicant;
3.2
Both parties retain full parental rights and responsibilities, and
that the 1
st
respondent is entitled to have contact with
the minor children as follows:
3.2.1
One weekend per month from 16h00 on Friday until 16h00 on Sunday;
3.2.2
Every short school holiday;
3.2.3
Having the minor children with her for half of every long school
holiday in the June/July and December with Christmas
alternating
annually between the parties;
3.2.4
Telephonic and electronic contact at all reasonable times.
3.3
The applicant is authorized to, on a full-time basis, enrol the minor
children at Cornerstone Institute
(Brits);
3.4
That consent be granted for the minor children to attend therapy in
order to provide the minor children
with the necessary emotional and
psychotherapeutic support;
4.
That the 1
st
respondent pay the costs of the application,
only in the event of opposition;
5.
Further and/or alternative relief.”
[3]
I will refer to the first respondent as “t
he respondent
”
and to the second respondent as “
the Family Advocate
Rustenburg
”.
[4]
The respondent raised three points
in liminé
, namely
the lack of urgency,
lis pendens and res judicata.
[5]
This matter served before me for the first time on 8 February 2024
during which week I was tasked
to deal with the urgent applications.
Due to the apparent haste within which the application was filed and
thereupon opposed, counsel
did not have time to file detailed and
proper heads of argument. For this reason and for the fact that
I had a very busy
roll for the day, I suggested that the matter be
postponed for two weeks in order to give counsel the opportunity to
file proper
heads of argument and also not to deal with the matter in
a hastily fashion in court. After the respective counsel made
different
submissions to me, I determined that I would hear the
points
in liminé
of
lis pendens
and
res
judicata
at that stage, without dealing with the merits. I
would then give a judgment on those two issues and should the matter
not
be finalized on one or both of those issues, I will request that
the Judge-President to re-allocate the matter to me for hearing
in
two weeks’ time so as to grant counsel opportunity to file
detailed heads of argument and to have enough time to properly
deal
with the matter in court.
[6]
I consequently continued to hear arguments on
lis pendens
and
res judicata
. I thereafter reserved judgment and
postponed the application for two weeks.
[7]
I subsequently, on 16 February 2024, delivered a short judgment in
respect of the two points
in liminé
. I concluded
as follows at paragraphs [7] and [8] of the said judgment:
“
[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.”
[8]
The application in its entirety consequently again served before me
on 22 February 2024.
Relevant
Background:
[9]
The applicant, who currently resides in Brits, North-West Province,
and the respondent, who currently
resides in Bloemfontein, are
married to each other, from which marriage two children were born,
namely a daughter, A.J.F, who is
currently 15 years old and a son,
G.L.F, who is currently 6 years old. When referring to both of
the minor children, I will
refer them as “the children”.
[10]
On 29 January 2022 the respondent left the communal home with the
children without informing the applicant
of her intention to do so.
According to the respondent she did so because of the applicant’s
continuous domestic abuse
and him threatening to kill her. She
left with the children out of fear for their lives and, according to
her, she had to
wait to obtain a protection order before she could
tell the applicant where they were. These allegations pertaining to
his conduct
is being denied by the applicant.
[11]
The first respondent obtained a protection order against the
applicant, which according to the applicant,
was based on false
allegations. During March 2022 the respondent apparently
obtained a second protection order against the
applicant in the
Bloemfontein’s Magistrate’s Court, which order was
eventually also set aside. The details of
those orders are
unknown to me, but I in any event do not consider the details thereof
relevant to the present application.
[12]
Of importance is that the parties subsequently agreed to a court
order in the Magistrate’s Court (Tshepong),
for the district of
Bloemfontein dated 13 April 2022, attached to the founding affidavit
as annexure “FA1” I will refer
to this order as the
“
domestic violence order
”. In the said order the
present respondent is the applicant and the present applicant is the
respondent. The order
reads as follows:
“
1.
The main application is withdrawn.
2.
The following order in terms of the Counter Application is granted:
2.1
The respondent is allowed to contact his children on a daily basis
via Video Call for at least twenty
(20) minutes, unheeded and without
interference from the applicant;
2.2
That the respondent is allowed to remove his children from the
applicant’s care at least one (1)
weekend per month from 17h00
on Friday until 17h00 on Sunday;
2.3
That the respondent is allowed to remove his children from the
applicant’s care on Easter Weekend
to Welkom from 17h00 on
Thursday, 14 April 2022 up until 17h00, Monday, 18 April 2022.
2.4
That the respondent is allowed to remove his children from the
applicant’s care, every short school
holiday being March to
April and September to October; and
2.5
That the respondent is allowed to remove his children from the
applicant’s care for half of every
long school holiday being
June/July and December/January with Christmas and New Year
alternating between the parties, whereby the
first part of the
December holiday will be up until 30 December and the second part
thereafter.
3.
Paragraph 3 (including sub-paragraphs) will operate as interim order
pending the finalization
of the children’s court matter,
alternatively until varied by a competent court’s order.
4.
The applicant to pay contribution towards the respondent’s
legal costs in the amount
of R5 000.00 in five (5) monthly
payments of R1 000.00 per month with a first payment to be made
on or before 31 May
2022 and thereafter on or before the last day of
each and every succeeding month.”
[13]
On 9 March 2023 the first respondent launched a Rule 58 application
in the Regional Court, Brits, seeking,
inter alia
, the interim
primary residence of the children. The applicant opposed the
application and also filed a counter-application,
which
counter-application was also opposed. The matter was not
enrolled for hearing at the time by any of the parties. Any
further
reference to “
Rule 58
” in this judgment is to be
understood to be a reference to Rule 58 of the Magistrates’
Courts Rules and a reference
to “
Rule 43
” is to be
understood to be a reference to Uniform Rule 43.
[14]
On 21 August 2023 the Family Advocate, Rustenburg issued a report in
the matter, which report recommends
that it would be in the best
interest of the children for their primary care and residence to be
with the applicant and to have
contact with the respondent.
[15]
On 28 September 2023 the applicant’s attorney of record wrote a
letter to the first respondent enquiring
from her whether she is
willing to settle the divorce matter. Reference was made to the
report of the Family Advocate, Rustenburg
and it was stated that it
was consequently in the best interest of the children that they
should stay with the applicant.
At that stage the attorney of
record on behalf of the respondent had withdrawn.
[16]
On 29 September 2023 the applicant responded to the aforementioned
letter of the applicant’s attorney
of record by stating as
follows:
“
Ek
erken ontvangs van u e-pos gedateer 28 September 2023 en neem kennis
van die inhoud daarvan. Die voorstel met betrekking
tot ‘n
skikking is onaanvaarbaar. Onder geen omstandighede gaan ek
toestem dat die kinders op ‘n permanente basis
by u kliënt
bly nie en is enige besoek van die kinders vir die vakansie aan hom
onderhewig aan ‘n skriftelike onderneming
dat die kinders aan
my terugbesorg sal word na afloop van die vakansie. Die posisie
met betrekking tot waar die kinders sal
bly moet onveranderd bly tot
tyd en wyl die hof daaroor ‘n beslissing gemaak het nadat ek,
behoorlik verteenwoordig deur
‘n regsverteenwoordiger die
geleentheid gehad het om my saak te stel.
My
regsverteenwoordiger moes onttrek vanweë ‘n gebrek aan
fondse. Ek is deur die plaaslike Legal Practice Council
na die
Regskliniek van die Universiteit van die Vrystaat verwys en ek wag
vir ‘n finale antwoord van die Regskliniek met
betrekking tot
verteenwoordiging. Ek sal u in kennis stel van die uitslag
daarvan sodra dit bekend is.”
[17]
The applicant thereupon states as follows at paragraph 43 of his
founding affidavit:
“
At
this stage, there was only about 2.5 months left until the end of the
2023 school year. Though I was very concerned about
the
children, I hesitated to take steps that would have resulted in the
minor children being taken out of their schools before
the end of the
school year. I also did not at that stage have the necessary
funds to pursue litigation. On advice also
of my legal
representatives, and reluctantly, I considered it best for the
children to complete the 2023 school year without disruption.
I
further had hoped that the matter could be resolved amicably with the
first respondent. I reasoned – perhaps
in retrospect
foolishly, that the first respondent would come to the realization
that it would be in the best interest of the children
to relocate to
Brits once the school year was concluded.”
[18]
In a WhatsApp dated 24 October 2023 the respondent agreed that the
applicant could fetch the children on
the 24
th
of November
2023 and return them to her on the 20
th
of December 2023,
since it was her turn to have the children with her. A
subsequent dispute developed in this WhatsApp message,
whereupon the
first respondent indicated that she was not going to reason with the
applicant anymore and will make the necessary
arrangements with the
applicant’s attorney.
[19]
The applicant alleges that only on 20 November 2023 did he realize
that the matter would not be resolved
amicably when the first
respondent informed him that she intended to ignore the Family
Advocate, Rustenburg’s recommendation.
[20]
Thereupon, on 9 December 2023, the applicant launched an urgent
application seeking similar relief to the
present application in the
Regional Court of Brits. The judgment delivered in the said
matter, dated 14 December 2023, is
attached to the founding affidavit
as annexure “FA18”. In terms thereof the hearing
was due to be held on 13
December 2023 but since the fact that the
court building was closed as a result of a water shortage, the court
directed that the
application will be dealt with on the papers.
The parties were, however, granted the opportunity to file heads of
argument.
[21]
In terms of the said judgment, the relief which was sought by the
applicant was summarised to have been the
following:
“
2.1
The non-compliance with the rules be condoned and that the matter be
heard as urgent in terms whereof the normal time
period for service
and filing be condoned;
2.2
The court order under domestic violence court case number 1060/2022
in the Magistrate’s Court of the District
of Tshepong held at
Bloemfontein dated 13 April 2022 be declared void, alternatively be
set aside and replaced by the order that
the primary residence of the
minor children, … [A.J.F] and … [G.L.F] be forthwith
vested with the applicant; further
that both parties retain full
parental rights and responsibilities and that the respondent be
entitled to have contact with the
minor children as set out in 4.1 to
4.5 in the notice of motion. Costs of the application to be paid by
the respondent on a punitive
scale in the event of opposition.”
[22]
The respondent unsuccessfully raised a point
in liminé,
which is not relevant for present purposes. The respondent raised
the lack of urgency as a second point
in liminé.
The
court made the stated as follows and made the following
determinations and findings in its judgment:
“
15.
The applicant stated that the need for the urgent intervention by
this court, is based on the reports of the Family Councillor
as well
as that of the Family Advocate, that recommend that both minor
children should
urgently
be released from the care of the
Respondent. More specifically so that they will be forced to be in
the care of an incompetent parent,
will be
inconvenienced
by
changing schools and
will suffer
the harm of the Respondent`s
conduct, be that manipulation, intimidation or threats.
16.
The Respondent disputes the existence of urgency, stating that the
Applicant is the creator of his own urgency as
he could have launched
the application 3 months back already when he received the report of
the Family Advocate. To quote form
the
Nelson Mandela
Metropolitan Municipality
case, I am of the view that the
delay in instituting proceedings is not, on its own a ground for
refusing to regard the matter
as urgent.
17.
The court is aware that the best interest of a child is of paramount
importance in every matter concerning the child
as envisaged in
section 28(2) of the Constitution of South Africa.
18.
In order to determine urgency, the court is considering the
respective reports as referred to by the applicant
as Family
Advocates evaluate the circumstances of the parents in divorce
proceedings and make recommendations to the court regarding
care,
contact and guardianship.
19.
Both the Family Councillor and the Family Advocate are
recommending that the children involved should primarily reside with
the
applicant. They do, however
not recommend that the
children should be released urgently from the care of the respondent
as alleged by the applicant.
Inconvenience
and the
possibility
of future events,
on its own, do not constitute urgency.
20.
I am satisfied that the applicant can be afforded substantial
redress at the hearing in due course.
The second point
in
limine
is accordingly upheld.” (My emphasis)
[23]
The following order was consequently made:
“
22.
Having regard to the papers as well as the written heads of argument
filed by both parties, the court is making
the following order:
1.
The application is removed from the roll due to lack of urgency;
2.
Applicant to pay the costs of the application.”
[24]
On the very same date of 14 December 2023 the applicant set down the
Rule 58 application for hearing on 17
January 2024 as per the notice
of set down attached to the founding affidavit as annexure “FA19”.
The respondent’s
attorney of record objected to the set down
since it constituted short service as required by the relevant rule.
The applicant’s
attorney of record subsequently removed the
matter from the roll on 11 January 2024 and on the same date
re-enrolled the Rule 58
application on 11 for 12 March 2024.
[25]
Despite the pending Rule 58 application, the applicant also launched
the present application on 22 January
2024 to be heard on 8 February
2024. According to the applicant he could not have launched
this application earlier as the
offices of his attorneys were closed
from 14 December 2023 until 8 January 2024.
[26]
In the meantime a report from the Family Councillor Bloemfontein came
to hand, dated 17 January 2024.
The said investigation was done
on request of the Family Advocate Rustenburg. The children were
assessed on 28 November 2022
and the respondent on 13 December 2022.
Although the Family Councillor concluded that she cannot make a
recommendation since
she only interviewed the mother and assessed the
minor children and not also the respondent, I will return to this
report.
[27]
On 5 February 2024 the applicant withdrew the urgent application
which had previously been struck from the
roll due to the lack of
urgency and with regard to the rule 58 application, he withdrew his
counterclaim thereto, but not his opposition
thereto. I will
return to the said withdrawals.
[28]
At the time of the first hearing of the present application on 8
February 2024, the respondent’s Rule
58 application and the
applicant’s opposition thereto were still pending. This
is presently still the situation.
Rule
58 of the Magistrates’ Courts Rules:
[29]
This rule is similar to Uniform Rule of Court 43 in High Court
matters. Rule 58 regulates the procedure
to be followed in
applications for ancillary relief of an interim nature in matrimonial
matters. The extracts from the Rule
applicable to the present
matter read as follows:
“
(1)
This rule shall apply whenever a spouse seeks relief from the court
in respect of one or more of the
following matters:
(a)
interim maintenance;
(b)
a contribution towards the costs of a pending matrimonial action;
(c)
interim care of any child; or
(d)
interim contact with any child.
(2)(a)
An applicant for any relief contemplated in subrule (1) shall deliver
a sworn or an affirmed statement in the nature
of a
declaration
,
setting out the relief claimed and the grounds therefore...
…
(3)(a)
The respondent shall deliver a sworn or affirmed reply in the nature
of a
plea
within 10 days after receiving the statement and the
notice contemplated in subrule (2).
…
(4)
…. either of the parties may set the matter down for summary
hearing…
(5)
The court may hear such evidence as is considered necessary and may
dismiss the application or
make such order as it deems fit to ensure
a just and expeditious decision.” (My emphasis)
[30]
From the use of the word “
shall
” in Rule 58(1) it
is evident that this procedure is prescriptive.
[31]
The object of the rule is that applications of this kind should be
dealt with as inexpensively and expeditiously
as possible; prolixity
in averments and the unnecessary proliferation of papers and
affidavits should be avoided. See
Nienaber v Nienaber
1980 (2) SA 803
(O) at 806 C – G. In the unreported
judgment of
C.A.D. v J.D.
(4017/2021) [2023] ZAECMKHC
66 (18 May 2023) at paragraph [2], the non-compliance with the
aforesaid object of Rule 43 (as with
Rule 59) was considered to
constitute an abuse of the court process.
[32]
In
Jones & Buckle: Civil Practice of the Magistrates’
Courts in South Africa
, DE van Loggerenberg, Volume II, 10
th
Edition, at RS 34, 2023 Rule – p. 58-3 the following important
principles are summarized with reference to applicable authority:
“
Rule
58 is a special rule governing certain specific applications in
contrast with the provisions of rule 55 which govern applications
in
general.
Urgency does not take applications for relief under
rule 55(5) outside the scope and limitations of this rule.
The provisions of rule 55 can find application only in respect of
aspects which are not governed by this rule. The
only such
provisions are those relating to urgency contained in rule 55(5)(a)
and (b), but the applicability of those provisions
does not mean that
an applicant has a choice which enables him to proceed under rule 55
and thus escape the limitations imposed
by this rule.” (My
emphasis)
[33]
In support of the aforesaid principles see,
inter alia
,
Henning v Henning
1975 (2) SA 787
(O) and
Leppan
v Leppan
1988 (4) SA 455
(W).
The
general principles regarding urgency in terms of Uniform Court Rule
(12):
[34]
Rule 6(12) determines as follows:
“
6(12)
(a)
In
urgent applications the court or a judge may dispense with the forms
and service provided for in these rules and may dispose
of such
matter at such time and place and in such manner and in accordance
with such procedure (which shall as far as practicable
be in terms of
these rules) as it deems fit.
(b)
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 [
sic
]
averred render [
sic
]
the matter urgent and
the reasons why
the applicant claims that applicant could not be afforded substantial
redress at a hearing in due course.
”
(My emphasis)
[35]
In
Nelson Mandela Metropolitan Municipality & Others v
Greyvenouw CC & Others
2004 (2) SA 81
(SE) the court
referred to the judgment which is considered to be the
locus
classicus
on self-created urgency, namely
Schweizer Reneke
Vleis (Mkpy) (Edms) Bpk v Minister van Landbou & Andere
1971 (1) PH F11 (T) where the following was stated at F11 – 12:
“
Volgens die
gegewens voor die Hof wil dit vir my voorkom dat die applikant
alreeds vir meer as ‘n maand weet van die toedrag
van sake
waarteen daar nou beswaar gemaak word. Die aangeleentheid het
slegs dringend geword omdat die applikant getalm het
en omdat die
tweede respondent, soos die applikant lankal geweet het, of moes
geweet het, van die besigheid in Schweizer-Reneke
geopen het.
Die applikant mag gewag het vir inligting van die eerste respondent
soos in die skrywe aangevra maar dit was
geensins nodig vir die
doeleindes van hierdie aansoek, wat op die nie-nakoming van die
audi
alteram partem
-reël gebaseer is, om so lank te wag om die
Hof te nader nie. Al hierdie omstandighede inaggenome is ek nie
tevrede dat
die applikant voldoende gronde aangevoer het waarom die
Hof op hierdie stadium as a saak van dringendheid moet ingryp nie.
Ek is dus, in omstandighede, nie bereid om af te sien van die gewone
voorskrifte van Reël 6.”
[36]
In
Tukela v Minister of Public
Works
(P578/17)
[2017] ZALCPE 29 (19 December 2017) the Court referred to the
aforesaid
Schweizer Reneke
Vleis
-judgment
and held as follows at paras [14] – [15]:
“
[14] It is trite
that an Applicant cannot create his or her own urgency by delaying
bringing an application. This Court will not
come to the assistance
of an applicant who has delayed approaching the Court. See
National
Police Services Union & Others v National Negotiating Forum &
Others
(1999) 20 ILJ 1081 (LC) at 1092 paragraph [39] where Van
Niekerk, AJ (as he then was) stated the following:
‘
The latitude
extended to parties to dispense with the rules of this court in
circumstances of urgency is an integral part of a balance
that the
rules attempt to strike between time-limits that afford parties a
considered opportunity to place their respective cases
before the
court and a recognition that in some instances, the application of
the prescribed time-limits or any time-limits at
all, might occasion
injustice. For that reason, rule 8 permits a departure from the
provisions of rule 7, which would otherwise
govern an application
such as this. But this exception to the norm should not be available
to parties who are dilatory to the point
where their very inactivity
is the cause of the harm on which they rely to seek relief in this
court. For these reasons, I find
that the union has failed to satisfy
the requirements relating to urgency.’
[15] I am in light
of the afore-going of the view that the Applicant has created her own
urgency by the substantial delay.
I am of the view that the
application falls to be struck of the role.”
[37]
In
Director of Public Prosecutions (Western Cape) v Midi
Television (Pty) Ltd t/a E TV
2006 (3) SA 92
(C) the
aforesaid principle was stated as follows at para [47]:
“
[47]
The next question to determine is whether the matter was urgent or
that an urgency was self-created. It is correct that an
applicant
cannot create its own urgency by delaying bringing the application
until the normal rules can no longer be applied.”
[38]
Arising from and connected to the aforesaid principle, is the
consequent obligation on an applicant in an
urgent application to
explain all periods of delay for purposes of making out its case for
urgency. The relevant principle applicable
to condonation
applications in this regard is consequently
mutatis
mutandis
applicable to an urgent
application.
In
High Tech Transformers (Pty) Ltd v
Lombard
(2012) 33 ILJ 919 (LC) the importance of a reasonable
and acceptable explanation for a delay was accentuated at para [25]
of the
judgment:
“
[25] …
Condonation is not merely for the asking as
was duly pointed out by the court in
NUMSA
& another v Hillside Aluminium
[2005] ZALC 25
;
[2005]
6 BLLR 601
(LC):
'[12]
Additionally, there should be
an acceptable explanation tendered
in respect of each period of delay
. Condonation is not there
simply for the asking. Applications for condonation are not a
mere formality. The onus rests on
the applicant to satisfy the court
of the existence of good cause and this requires a
full,
acceptable and ultimately reasonable explanation
. …
Nevertheless, to do justice to the aims of the legislation, parties
seeking condonation for non-compliance are obliged
to set out full
explanations
for each and every delay throughout the
process
.’” (My emphasis)
Factual
consideration of the alleged urgency (for now without considering the
nature of the process followed):
[39]
Only months after the respondent left the communal home with the
children the parties settled the dispute
between them in respect of
the interim residence and contact rights in respect of the children
by means of the domestic violence
court order dated 13 April 2022nin
terms whereof the care and primary residence of the children was
awarded to the respondent.
After that the applicant initially
took no further steps to obtain an order to the contrary.
[40]
On 9 March 2023 the respondent was the party who initiated a Rule 58
application seeking interim care and
primary residence of the
children
pendente lite
, which was the correct procedure to
have followed. Although the applicant opposed the application
and filed a counter application,
he took no steps to expedite the
enrolment and the hearing of the application, despite the minor
children being resident at and
in the care of the respondent.
[41]
The reports of the Family Advocate, Rustenburg and the Family
Councillor, Rustenburg were received on 21
August 2023. Despite
the recommendations in those reports that the primary care and
residence of the children should vest
in the applicant, he took no
steps in response thereto despite his averment in his founding
affidavit that the respondent was not
willing to accept the
recommendation therein.
[42]
As previously quoted, the applicant’s failure to take any
further steps at that stage to obtain the
interim care and residency
of the minor children, is explained in his founding affidavit by the
following averments at paragraph
43 thereof:
“
At
this stage, there was only about 2.5 months left until the end of the
2023 school year. Though I was very concerned about
the
children, I hesitated to take steps that would have resulted in the
minor children being taken out of their schools before
the end of the
school year. I also did not at that stage have the necessary funds to
pursue litigation. On the advice of
my legal representatives,
and reluctantly, I considered it best for the children to complete
the 2023 school year without disruption.
I further had hoped
that the matter could be resolved amicably with the first
respondent. I reasoned – perhaps in retrospect
foolishly
– that the first respondent would come to the realization that
it would be in the best interest of the children
to relocate to Brits
once the school year was concluded.”
[43]
What the applicant, however, does not explain, is why he did not
enrol the Rule 58 application/counter application
at that stage
already so as to ensure that it be finalized when the children
complete their 2023 school year. That would,
from his point of
view, have been the most sensible, reasonable and affordable thing to
do.
[44]
According to the applicant he realized by 20 November 2023 that the
parties will not be able to resolve the
matter amicably. At
that stage, again instead of enrolling the Rule 58 application, the
applicant filed the urgent application
in the Regional Court on 9
December 2023, alleging that it then had become urgent that the
children should be removed from the
primary residence of the
respondent, although that request was based on the reports of the
Family Advocate, Rustenburg and the
Family Councillor, Rustenburg
which had come to hand during August 2023 already.
[45]
In my view the Regional Court correctly struck that urgent
application from the roll for a lack of urgency.
The fact that
the matter was only decided on papers does not decrypt from the
correctness and the consequences of that order.
[46]
Without (for now) dealing with the correctness or not of the
procedure the applicant followed by having filed
the present
application in the High Court, his explanation for not having done so
immediately after the other urgent application
was struck from the
roll, is that the offices of his attorneys were closed from 14
December 2023 to 8 January 2024. With
all due respect to the
applicant and the offices of his attorney, this can never be an
excuse for a party’s failure to have
timeously and urgently
approached court where the interests of minor children are
concerned. Surely arrangements could have
been made in order
for the present application to have been issued at that stage,
already, instead of only on 22 January 2024.
[47]
Having said that, it is evident from the papers that the only “
new
event
” which occurred after the other urgent application
was struck from the roll due to a lack of urgency, was the incident
of
6 January 2024. That event, in my view, when considered in
conjunction with the respondent’s version thereof, in any
event
was not as disruptive and upsetting to the children as the applicant
makes it out to be. Be that as it may, more importantly,
what
had been additionally obtained in the meantime after the previous
urgent application was struck from the roll due to a lack
of urgency,
was a report of the Family Councillor, Bloemfontein. Although
the said councillor did not make a recommendation,
it is in my view
evident from a proper reading of the said report that in the view of
the Family Advocate, Bloemfontein, there
was no reason, let alone any
urgent reason, why the children for the interim had to be removed
from care the first respondent.
The applicant, however, despite
the previous finding of lack of urgency in the other urgent
application and despite the report
of the Family Councillor,
Bloemfontein which was favourable for the respondent, the applicant
merely proceeded persisted with the
present urgent application.
This, with respect, boggles my mind.
[48]
Leaving the issue of the procedure which the applicant followed aside
for a moment, the applicant, in my
view, dismally failed to make out
a proper case for urgency. Not only were there time periods
during which he took no steps
whatsoever to obtain the interim care
and residence of the children, but, even more importantly, when all
the facts and circumstances
are objectively considered, there is in
my view no reason or grounds why the children should be removed from
the interim care and
residence of the respondent, let alone on an
urgent basis. Should the applicant wish to obtain the interim or the
permanent care
and residency of the children, he will be afforded
substantial redress at a hearing in due course.
The
procedural issues:
[49]
It is clear from my discussion above regarding the applicability of
Rule 58 in the present circumstances
that the applicant fatally erred
in having filed the present application in the High Court. From the
outset of the applicant`s
intention to obtain the interim care and
residence of the children on an urgent basis (should a proper case
for urgency have been
made out) the required procedure would have
been to follow Rule 58. Considering that the respondent issued a Rule
58 application
and the applicant filed a counter-application therein,
merely means that the applicant should have persisted with that
counter-application
and should have expedited the enrolment thereof.
[50]
Insofar as the applicant was of the view that the said application
was out dated pertaining to relevant facts
and events, he could have
made use of Rule 58(5) to ensure that all relevant material was to be
placed before Court. He could otherwise
have
properly
withdrawn the counter-application, by also tendering the costs
thereof and then have instituted an updated Rule 58 counter-claim.
[51]
With regard to the letter dated 17 January 2024, the contents of
which the applicant blames for having decided
to withdraw the Rule 58
counter-application, is in my view irrelevant. The applicant was (and
is)
dominus litis
in respect of that counter-application and
should have dealt with it in accordance with his own instructions and
advice from his
attorney. He cannot place the responsibility for his
own decision before the door of the other side.
[52]
I agree with the submission of Ms Nortje, on behalf of the
respondent, that the applicant did forum shopping
in the present
dispute. Instead of having persisted with the Rule 58
application-process, he launched the urgent application
in the
Regional Court during December 2023. When that was not
successful, he filed the present application, after which he
withdrew
(or rather attempted to withdraw) his counter application in the Rule
58 application and the other “urgent application”
in the
Regional Court.
[53]
I cannot but find that the present application constitutes an abuse
of process in a number of respects.
[54]
In my preparation of this judgment I came across a reported judgment
of which the facts, although not identical,
are very similar to the
present matter and which judgment deals with a number of principles
relevant to the present matter:
54.1
In the judgment of
SW v SW and Another
2015 (6) SA 300
(ECP) divorce proceedings were pending before the Regional Court,
Port Elizabeth. The central issue between the parties was the
care
and residence of a 6-year old minor child. At the time the minor
child was in the care of the first respondent in accordance
with an
order granted by the Regional Court in terms of Rule 58. The
applicant instituted an urgent application in terms of Rule
43 in the
High Court, Port Elizabeth. It was opposed on the ground that it is
not urgent and that it constitutes an abuse of process.
The matter
was heard on 30 July 2015.
54.2
In May 2015 the applicant launched a Rule 58(2) application in the
Regional Court. Before the hearing of that application,
the
applicant, on 21 July 2015, launched a further application in terms
of Rule 58. On 24 July 2015 the applicant withdrew the
rule 58
applications,
although no costs were tendered in the notice,
and immediately launched the Rule 43 proceedings in the High Court.
Following a very insightful discussion of different applicable
principles, the court found,
inter alia,
as follows at
paragraphs [34] and [37] of the judgment:
“
[34]
Finally, there is the form of this application. I have already
pointed to the fact that the applicant brought the application
on an
urgent basis when he was not entitled to do so. In addition the
applicant sought to obtain relief from this court in circumstances
where he had plainly failed to obtain such relief in the
regional court. The conclusion is inescapable that the applicant,
dissatisfied with the process before the regional court, sought to
circumvent the difficulty by approaching this court. That in
my view
is an abuse of the process. If the applicant were unrepresented this
court might have been prepared to excuse such conduct
on the basis
that the applicant is a lay person. But that is not the position
in this case.
…
[37]
On the basis of all of these considerations I come to the conclusion
that the application must be dismissed on the basis that
this court
lacks jurisdiction to hear the application. I consider also that the
application is an abuse of the process of court
for the reasons set
out above.”
The
consequences of the findings made above:
[55]
In view of my finding that the applicant failed to make out a proper
case for urgency (in addition to having
used an incorrect procedure),
the application stands to be struck from the roll.
[56]
In addition, the applicant’s abuse of process by having filed
the present application instead of having
dealt with the dispute by
means of Rule 58, constitutes a further reason why the application
stands to be struck from the roll.
[57]
Both the last-mentioned two conclusions make it unnecessary to
adjudicate the other two points
in liminé
. I do,
however, deem it necessary to further quote from the aforesaid
SW
v SW
-judgment, firstly in respect of the principles that make
lis pendens
applicable to the present matter (without
deciding same) and secondly to illustrate the similar abuse of
process in the present
matter as in
SW v SW
:
“
[25]
Rule 58, it should be said, is the equivalent of rule 43 in the
magistrates' court. As already indicated, the applicant purported
to
withdraw those applications immediately before launching the present
application. …
[26]
When asked whether the withdrawal of the applications had the effect
of terminating those applications, it was submitted that
it did. This
was despite rule 22 of the Magistrates' Courts Rules, which entitles
a party to whom no tender of costs is made in
a notice of withdrawal
to apply for the matter to be set down in order for the costs to be
determined. Counsel was, however, constrained
to concede that
the
effect of rule 22 is to keep alive the application until the question
of costs is determined
. Upon realisation that this would be
fatal to the present application (leaving aside the jurisdictional
issues), applicant's counsel
made a tender of costs in those
applications from the bar, no doubt seeking thereby to terminate the
pending proceedings before
the regional court. As it turned out,
the tender was rejected by the first respondent, who pointed out that
throughout those
proceedings she had contended that the applications
were an abuse of the process and had sought a punitive costs order.
[27]
There can, to my mind, be no doubt that the proceedings initiated
in the regional court were still pending at the time that this
application was launched. The applicant's purported withdrawal
amounted to no more than that — a purported withdrawal in
order
to enable these proceedings to be launched. The withdrawal was not
effective and did not terminate the lis between the parties
in the
regional court. The subsequent tender of costs from the bar also did
not bring the matters in the regional court to an end.
The
irregular attempt to present to this court a copy of a formal
'notice of withdrawal' of the applications in the regional
court,
after argument had been presented and judgment had been reserved,
also cannot assist. Firstly, it was irregular to make
such an
attempt. Secondly, such withdrawal suffers from the same deficiency
that the tender from the bar suffered, namely it did
not address the
first respondent's entitlement to have the costs determined on a
punitive scale.
Thirdly, as long as the costs issue remained to be
decided, so too the merits of the application remained in issue,
thereby precluding
this court from making any pronouncement on the
merits which would have the effect of fettering the regional court's
discretion
on the issue of costs
.
[28]
The above illustrates the fundamental difficulty that the applicant
faces in this application. Not only does the applicant
seek relief
which it is not competent to grant in terms of rule 43, but, as is
indicated,
this court's jurisdiction was sought to be invoked in
circumstances which point to the process of this court being abused.
[29]
That such a conclusion is warranted emerges from consideration of the
alleged urgency upon which the applicant relied; the
basis upon which
the 'best interests' of the minor child were invoked; and the form in
which the application was brought. ...”
(My emphasis)
[58]
The most important remaining question what the status of the children
is as a result of all these events.
[59]
If the present application is to be struck from the roll, the
domestic violence court order dated 13 April
2022 will remain the
determining order in respect of the interim care and residence of the
children.
[60]
I have considered the possibility of making an order regarding the
interim care and residence of the children,
purely for the sake of
clarity and to remove any uncertainty for the children. Ms Nortje
also requested accordingly in her arguments.
[61]
A High Court can exercise its inherent common-law jurisdiction to act
in appropriate circumstances in the
interests of minor children to
make an order, notwithstanding that there are proceedings pending
before another court. See
SW v SW
,
supra,
at
para [20]. However, the court also determined as follows at
paragraphs [20] and [22] of its judgment:
“
[20]
… The second is that in order to invoke that common-law
inherent jurisdiction the applicant must establish
(a)
that
considerations of urgency justify the intervention; and
(b)
that
the intervention is necessary to protect the best interests of the
minor child.
[21]
Even although the High Court has such jurisdiction, it is not a
jurisdiction that will be lightly exercised.
The court
retains an inherent discretion not to exercise such jurisdiction in
order to avoid a multiplicity of suits with the
concomitant risk
of jurisdictional conflict
(see
Steinberg v
Steinberg
;
Schlesinger v Schlesinger
).
[22]
These considerations of jurisdictional conflict are in my view all
the more significant in the light of the significant changes
to the
jurisdictional scheme relating to matrimonial matters. In this regard
it is important to note that when
Green
was
decided only the High Court (as it is now known) had jurisdiction to
adjudicate matrimonial matters. Now regional courts,
whose
jurisdiction is conferred by statute, also enjoy jurisdiction to
adjudicate matrimonial matters. A regional court is an entirely
separate court exercising wholly distinct jurisdiction and it is,
furthermore, a court which is bound, on the principle of stare
decisis, by the judgments and rulings of the High Court.
These considerations will undoubtedly weigh heavily in the exercise
of this discretion.” (My emphasis)
[62]
In the present matter, should I make no further order, the children
will for the interim remain with the
first respondent as per the
domestic violence court order, at least until a competent court
orders otherwise. That is, in my view,
presently in the best
interests of the children. There is consequently no considerations of
urgency which justify my intervention
and my intervention is not
necessary to protect the best interests of the children.
[63]
Secondly, should I indeed make and order regarding the interim care
and residence of the children, and circumstances
change in that the
Rule 58 application or a new Rule 58 application be brought before
the Regional Court, issues of jurisdictional
conflict will definitely
arise.
[64]
In the circumstances I find that it is not an appropriate instance
where I should make any further order
than that the matter be struck
from the roll and an appropriate order as to costs.
Costs:
[65]
In view of the totality of my findings, especially with regard to the
applicant`s abuse of process, I am
of the view that despite the fact
that this is a dispute regarding the bests interests of minor
children, it is an instance which
necessitates me, in the exercise of
my discretion, to not only order that the applicant be ordered to pay
the costs of the application,
but that he be ordered to do so on a
punitive scale.
[66]
With regard to the reserved costs of 8 February 2024, I deem it
appropriate that those costs be costs in
the application. The
applicant will consequently also be responsible for those costs, also
on a punitive scale.
Order:
[67]
The following order is consequently made:
1.
The application is struck from the roll.
2.
The applicant is ordered to pay the costs of the application, which
costs are to include
the reserved costs of 8 February 2024 and all of
which costs are to be paid on an attorney and client scale.
C.
VAN ZYL, J
On
behalf of Applicant:
Adv
XT van Niekerk
Instructed
by:
Lourens
& Schwartz Attorneys Inc.
C/o
Symington & de Kok Attorneys
BLOEMFONTEIN
E-mail:
es@lsprok.com
lit1@lsprok.com
On
behalf of First Respondent:
Adv N
Nortje
Instructed
by:
Lategan
Viljoen & Pretorius Attorneys
C/o
McIntyre & van der Post
BLOEMFONTEIN
E-mail:
cor@lvp.co.za