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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
CASE NO: 16939/2024
In the matter between:
D[…] W[…] D[…] Applicant
And
I[…] L[…] L[…] First Respondent
HERSCHEL GIRLS SCHOOL Second Respondent
Matter heard on – Tuesday 13 August 2024
Judgment delivered on – Tuesday 20 August 2024
JUDGMENT
______________________________________________________________________
PARKER, AJ
Prof Maureen A Weston, writes that mediation is:
“premised upon the intention that by providing disputing parties with a process
that is confidential, voluntary, adaptable to the needs and interests of the parties,
and within party control, a more satisfying, durable, and efficient resolution of
disputes may be achieved”1
Introduction
[1] This is an application brought on an urgent basis in which the applicant seeks an
Order for the following:
“1.1 Directing that compliance with the forms and service provided for in the
Uniform Rules of Court be dispensed with and that the matter be heard
on an urgent basis in terms rule 6(12)(a).
1.2 That the Respondent be and are hereby directed and ordered to within 24
hours of this order sign and otherwise execute all documents required for
the admission of N[…] J[…] L[…] (minor child) born on 1 […] S[…] 2021,
for the year 2024 at Herschel Girls School, situated at Claremont, Cape
Town.
1.3 That in the event that the Respondent fails and or refuses to comply with
Order 1 above, then in that case, her consent and signature for the
admission of the minor child at Herschel Girls School be and is hereby
dispensed with and the Second Respondent in such case be granted
leave to admit the minor child without the consent or signature of the First
Respondent.
1 Prof Maureen A. Weston in her article “ Checks on Participant Conduct in Compulsory ADR: Reconciling
the Tension in the Need for Good -Faith Participation, Autonomy, and Confidentiality ”, 76 I ndiana Law
Journal 591 – 592 (2001).
1.4 Directing the respondent to pay the applicant’s costs in the event of
opposition; and
1.5 Further and/or alternative relief.”
Background
[2] The parties are the biological parents of the minor child. It is common cause that
the communication between the parties are acrimonious. The parties are entangled in
bitter disputes over a relatively short period of time in the life of a minor child who is
barely 3 years of age . The litigation history shows several applications being launched
in various fora including an earlier application which was also sought by Applicant on an
urgent basis to this Honorable Court on 21 November 2023 (“contact and care
application”), for the determination of a Family A dvocate’s report to enable Applicant to
be granted more rights for contact and care. This case is still pending.
The current application
[3] The parties are at loggerheads as to which is the preferred school for the minor
child, the intention being that she would start crèche in 2025. Applicant contends that he
has had to drag First Respondent to Court regarding her unreasonable, unconscionable
refusal to co-operate with the co-parenting of the minor child.
[4] After attempts were made to come to a compromise as to which school is
suitable and despite attempts to hold roundtable meetings, Applicant had no alternative
but to bring this issue to Court on an urgent basis.
[5] The timeline leading to the urgent application:
5.1 21 November 2023 . The contact and care application was sought by
Applicant, on an urgent basis. An Order was granted by this H onorable
Court which were replaced by the recommendations of the F amily
Counsellors’ recommendations dated 26 September 2023 pursuant to the
order granted in the High Court of South Africa, Johannesburg da ted 6
December 2022. The Court referred the matter to the Offices of The Family
Advocate to deliver their report on or before 12 April 2024. Such report is
still pending. The earlier F amily Counsellors’ recommendations dated 26
September 2023 suggested both parents hold joint decision making powers
including inter alia “ education and schooling ”, and importantly, it was also
recommended “that the parents attend mandatory co parenting classes
with the Parent Centre (021 752 0116) or through any other suitable
organisation or professional, aimed at improving their communication and
co–parenting relationship”
5.2 14 February 2024 . The First Respondent attended one session at the
Parent Centre and the individual who did assist resigned. First Respondent
contends that Applicant failed to take steps to locate another individual to
assist.
5.3 12 April 2024. The A pplicant learns that F irst Respondent had applied to
Curro Academy School for the admission of the minor child.
5.4 3 June 2024 . The Applicant receives confirmation o f acceptance from
Herschel Girls School, subject to the conditions contained therein.
5.5 2 July 2024 . The Applicant’s advises of the Herschel Girl School
acceptance and invited the First Respondent to engage in the co -parenting
of the minor child failing which he will approach the High Court for
intervention.
5.6 8 July 2024. The First Respondent agrees to engage and directs the
attention to the Applicant of the reference to a dispute resolution process
which states that the parents shall appoint a qualified Social Worker if the
issues remain unresolved, suggesting that a Social Worker to appoint a
Parenting Coordinator, to assist them on an ongoing basis for iss ues which
may arise from time to time and suggested the names of two experts. In
addition, First Respondent warned the Applicant that it is premature to seek
an urgent ap plication and if persisted with , it will be opposed with a costs
order.
5.7 10 July 2024. The First Respondent requested information regarding
Herschel Girls School and invited Applicant to agree to a Parenting
Coordinator.
5.8 11 July -15 July 2024. The Applicant’s attorney requested a round table
conference to discuss the minor child’s future and attendance at Herschel
Girls School, however First Respondent had requested certain information,
so that a meaningful discussion could take place and an alternative date
was suggested by First Respondent.
5.9 16 July 2024. Since Applicant failed to provide the information as
requested, the meeting was called off. First Respondent requested the next
meeting to be on 22 July 2024.
5.10 17 July 2024 – 22 J uly 2024. There was an exchange of information
pertaining to both schools however Firs t Respondent felt that additional
information was needed from the Applicant since he failed to a ddress the
referral of a Social Worker or Parent Coordinator, resulting in the meeting
not taking place.
Urgency
[6] The submissions made by the A pplicant is that applications for decent and
reputable schools for the 2025 academic have already closed and the Applicant has
been afforded a limited amount of time to either convince the First R espondent or lo se
the placement, since the Second Respondent has been accommodating the a pplicant
by continuously extending the registra tion date. Furthermore it is invariably too late to
apply to another school of the same status as the Second R espondent. The result will
prejudice the minor child in that she will be deprived of an opportunity to attend one of
the best institutions in the country.
[7] Resulting from the numerous attempts to engage the First Respondent and reach
a reasonable decision regarding the education and best interest of the minor child , and
because the First R espondent refuses to cooperate, his proverbial hand is forced at
launching this application on an urgent basis.
[8] On urgency , Applicant sought reliance that it is appropriate to bring the
proceedings without delay2 where the Court rendering it inherently urgent for the Court
to hear the application.
[9] This was countered by the First Respondent on the basis that the urgency is self-
created when the Applicant chose so late to enrol the minor child by waiting until the
eleventh hour. Secondly, the Applicant should have heeded the message for referral to
an external third party made as early as 8 July 2024. As such, the argument advanced
by the First Respondent on urgency, cannot be sustained as the application was wholly
unnecessary. It was premature on the basis that the issue ought to be determined with
the assistance of a Social Worker or, failing that, an independent expert (or better still a
2 MM v AV (2901/2010) [2011] ZAWCHC 425 (16 November 2011) para [42].
Parenting Co-Ordinator) to determine which school would be best suited to the needs of
the minor child.
[10] The First Respondent was of the view that the minor is not yet three years old
and, as such, her entrance into a school is not an urgent matter and there are no
indications that she will suffer any emotional or developmental damage or that she is
currently suffering emotional or developmental damage as alleged by the Applicant.
Pertinently, she is still on nappies. First Respondent stands by its warning given to the
Applicant that an urgent application is premature and would be opposed.
Evaluation
[11] On the morning of the hearing I stood the matter down to afford the parties to
reach a possible settlement which was fruitless. At t he commencement of the hearing
Applicant provided the Court with a memorandum issued by the Family A dvocate dated
13 August 2024 (“the memorandum”) indicating that the issue at hand is not within its
mandate, however, submitted that an educational psychologist will be best placed to
make a recommendation in the respect of whether it will be in the child’s best interest
for the relief to be granted.
[12] Of concern, the Applicant only, and after First Respondent sought clarity on what
precise relief is being sought, is, when the Applicant from the bar and for the very first
time abandoned prayers 2 and 3 of the N otice of Motion. This was novel to the Court to
hear that Applicant was no longer persisting with same and rather proceeding in its
prayer for alternate and or further relief in line with the latent memorandum dated 13
August 2024. First Respondent took issue with the a bandonment of prayers 2 and 3
contending that Applicant morphed his case by virtue of the memorandum.
[13] This reliance on alternate and or further relief came as a surprise because the
Founding affidavit contai ned no averments directing the C ourt to cons ider alternative
relief on the basis suggested. What was further confusing, was that Applicant had until
12 noon, sufficient time to have considered his position, to have used the opportunity to
discuss the alternative relief with the First Respondent, given that th e First Respondent
suggested a Parenting coordinator or social worker repeatedly.
[14] Before I turn to the issue of the urgency and the merits, it is impor tant that I
discuss Alternate Dispute Reso lution me chanisms. The First Respondent in her
opposing affidavit raised the issue of Non compliance with Rule 41A.
[15] The relevant concepts on mediation were dealt with comprehensively in Kaladagi
Manganese (Pty) Ltd and Others v Industrial De velopment Corporation Of South Africa
and Others3 and discussed the provisions of Rule 41A. Mediation is a tool, and if used
effectively yields potential results. The notion of Facilitative mediation, where the
mediator endeavors to facilitate communication between the parti es and to help each
side to understand the other's perspective, position and interests through a process
where parties may find each other “a way out of the deadlock“4.
[16] Mediation provides for disput es to be resolved in a reconciliat ory manner and
therefore, promotes restorative justice. I remain of the view that Court annexe d
mediation should be utiltised more effectively. The practice of it becoming a tick box
exercise or to bypass it on urgency needs to be addressed more vigorously.
[17] The role of mediation is more suitable to build a relationship in matters such as
this, which involves a very young child and where the parties will have to consult and
communicate with each other for quite a long time on joint decision making until the
minor child reaches the age of majority. However, I am mindful that not all disputes ar e
suitable for mediation. I am mindful that I cannot force parties to mediate. However, the
parties are obligated to consider mediation.
3 Kalagadi Manganese (Pty) Ltd and Others v Industrial Development Corporation of South Africa Ltd and
Others (2020/12468) [2021] ZAGPJHC 127 (22 July 2021) at paras [28], [29] and [30].
4 Kalagadi Manganese (Pty) Ltd, supra at para [21].
[18] In my view, t his is a classic case for mediation. It is evident that there was no
meaningful mediation prior to t he application. Not only will both parties own the process
and if correctly managed by a mediator with experience, decisions could be made
quicker. It will cost far less than a High Court urgent application and appropriate experts
could be engaged as and w hen needed. Where issues arise requiring joint decision
making, a mediator is better suited in instances where there is high volatility between
parties and where communication is fractious.
Urgency
[19] Courts and its fast lane Courts should be a last resort, in circumstances such as
this. It is regrettable that it was only after bringing Urgent proceedings and at the
hearing when Applicant acquiesced in favour of the Memorandum to refer the parties to
an educational psychologist premised as its alternative relief. The earlier invitation by
the First Respondent to consi der a social worker or P arenting Co-Ordinator was simply
not considered and Applicant persisted with the urgent application despite warnings of
First Respondent that an urgent application was premature. Instead, Applicant rushes to
Court and wants to be heard in the fast lane.
[20] In any event I had nothing before me as to which educational psychologist should
be considered . Applicant has at no stage put forward any names as the preferred
educational psychologist . Even if I was inclined to the appointment of an unidentified
educational psychologist, I foresee it would be complicated if I grant such an Order.
Supposing I do, the parties will need to reach consensus as to whom to appoint. They
will likely continue with their factious conduct and in the absence of the communication
being managed properly, I foresee a replay.
[21] Applicant persisted that the pleadings dealt with the further or alternative relief
which cov ered the memorandum, albeit in its Replying affidavit. However, on being
questioned to direct where the averments were made in favour of substantiating such
relief in the Founding affidavit, none could be pointed out. Erasmus deals with ‘further
and or alternative relief ’ concisely. “The facts set out must constitute the premises for
the relief sought” and the practice of adding an additional claim for ‘further or alternative
relief’ will not assist a plaintiff who seeks relief of quite a different nature from that asked
for in the summons 5. Unless the order is “clearly indicated in the pleadings and is
establised by satisfactory evidence” 6 which is not of application in these circumstances
as the relief is not foreshadowed in the notice of motion.
[22] On the contrary the Replying af fidavit was contradictory, on the one hand at
paragraph 21.4 thereof the Applicant agrees to a referral states that “it is not in the best
interest of justice for all important decision in relation to the minor child be to be referred
to Court or a third party” and at paragraph 21.5 states that there is “ no obligation to
utilise a Social worker or an expert to resolve the matter”.
[23] The timeline referred to earlier shows that this Application was not ripe for
hearing, the discussions around the referral to a third party was not as yet exhausted .
Whilst the right of a minor child is paramount and often regarded as inherently urgent,
steps ought to be in place before bringing a matter on urgency, only then , once those
steps are exhausted can urgency be considered.
[24] Instead State resources were used to deal with a possible referral which should
have been considered at the outset and not whilst the hearing was in motion.
[25] Urgency is not automatic in cases involving minors. It can never be so. The
converse would be chaotic for our Courts especially for the urgent Court, seized with its
caseloads7.
5 Superior Court Practice 2nd Edition Erasmus at D1 – 232B. Port Nolloth Municipality v Xhalisa and
Others; Luwalala and Others v Port Nolloth Municipality 1991 (3) SA 98 (C).
6 supra at [112] D – G; Somali Association of South Africa v Refugee Appeal Board 2022 (3) SA 166
(SCA) at para [97].
7 MM v NM and Others (15133/23P) [2023] ZAKZPHC 117 (18 October 2023).
[26] I am not convinced that there are compelling reasons to have brought this matter
on urgency. The urgency was self-created and does not meet the requirements set out
in rule 6( 12) of the Uniform Rules of Court , where a litigant is required to set forth its
reasons why they cannot be afforded substantial redress at a hearing in due course. A
few more months would not prejudice the minor who is barely 3 years of age and still on
nappies. An additional few months or two, to allow for the processes to follow to enable
both parties to consider what will be in the best interests of the child, should follow. I do
appreciate that schools have deadlines but I do not agree that it is appropriate to rush
into Court and bypass other pressing matters which are placed on the semi -urgent or
urgent roll.
[27] After a careful consideration of the submissions made by both parties , the
relevant case law relied upon , I conclude that this matter is not urgent. It is an abuse of
the Court p rocesses to skip the queue to get this Court to grant an Order in
circumstances where only genuinely urgent matters ought to be heard.
[28] Self-created urgency is not a basis for circumventing the normal rules of Court
and procedures of the Court8. I do not accept the relief occasioned by Applicant for
further and alternative relief in the manner done, in order to maintain the integrity of the
urgent Court processes.
[29] In striking this application, the hope is that the parties will make a concerted effort
to work on their communication skills, take ownership and control over the decision
making in the best interests of the child rather than to come to Court eac h time. The
hope remains that the parties heed the message running through this judgment.
Costs
8 East Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty) Ltd and Others (11/33767)
[2011] ZAGPJHC 196 (23 September 2011) at para [6] (East Rock Trading); MM v NM, supra.
[30] Although the Applicant abandoned costs I see no reason why costs should not
follow the result. First Respondent had issued a warning to Applicant if he persisted with
the urgent Application, it would be opposed with an appropriate costs order. First
Respondent argued fo r costs on Scale C. In my view, This was not a complex matter
justifying costs higher than Scale B.
[31] In the circumstances the following order is made
a) The application is struck from the roll.
b) Applicant is liable to First Respondent for the attorney and client Costs
including costs of counsel on scale B.
_________________________
R K PARKER
ACTING JUDGE OF THE HIGH COURT
This judgment was handed down electronically by circulation to the partie s and/or
parties’ representatives by email. The date and time for delivery is deemed to be 20
August 2024 at 15h30.
For the Plaintiff: Counsel: Ms. C. Van Douw
Email: chey@cvandouwlaw.co.za
Instructed Attorney: Mncube Attorneys Inc.
Email: gift@mncubelaw.co.za
c/o – PVW Attorneys Inc – Ms. N. Ndlovu
Email: noni.ndlovu@pvwinc.co.za
For the Plaintiff: Counsel: Adv. C. Reilly
Email: clairereilly@capebar.co.za
Instructed Attorney: Fairbridges Wertheim Becker – Ms. S. Breslaw
Email: sheri.b@fwblaw.co.za;