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
(WESTERN CAPE DIVISION, CAPE TOWN)
Case No: 32/2025
In the matter between:
C[...] A[...] H[...] Applicant
And
L[...] D[...] H[...] Respondent
Date of hearing and order granted : 10 January 2025
Written r easons delivered: 23 January 2025
___________________________________________________________________ ___
REASONS FOR ORDER
PANGARKER J
Introduction
1. The parties are the divorced biological parents of a minor daughter aged 14
years at the time of the application. The mother approached this Court during the recess
period on an urgent basis for the following relief against the father, the respondent , as
follows :
1. That the applicant’s failure to comply with the Rules of Court with
regard to time periods and serving of process be condoned and the application
be heard as a matter of urgency in accordance with the provisions of Uniform
Rule 6(12)(a);
2. Direc ting the respondent to pay the applicant monthly maintenance
for the parties’ minor daughter in the amount of R51 300 on or before the 1st of
every month, with the first pro rata payment to commence on 15th January 2025
in the following bank accoun t: C[...] H[...] , FNB, Account number ….1;
3. Directing the respondent to consent to the enrolment of the parties’
minor daughter in R [...] House, Green Point;
4. Directing the applicant to institute an application in the Cape Town
Maintenance Court for a variation of the parties’ maintenance order on or before
15 February 2025;
5. That prayer 2 operates as an interim interdict pending the
finalization of the maintenance proceedings mentioned in prayer 4;
6. Directing the respondent to pay the costs of this application, only in
the event of opposition;
1 Details withheld
7. Granting such further and alternative relief as the above
Honourable Court deems appropriate .
2. The application was dated 2 January 2025 and on truncated timelines, required
of the respondent to deliver his notice of opposition by 3 January and his answering
affidavit by 7 January. The application unsurprisingly became opposed and due to the
respondent’s legal representative being on leave, and then having to take instructions
and consult with counsel, such a ffidavit was filed one day late, on 8 January. To the
extent that condonation was requested for such lateness, it was granted to the
respondent. The replying affidavit was filed electronically with the Registrar at 00h29 on
10 January.
3. Having heard the argument by the parties’ respective counsel , the matter stood
down f or my consideration thereof. The legal representatives were info rmed that an
order would be granted on the same day and reasons for such order would be delivered
at a later stage. These are the written reasons for the following orders granted after the
hearing on 10 January 2025:
1. That the application is struck f rom the urgent roll.
2. That it is ordered that the minor child’s best interests, particularly in
relation to an intended relocation from Hermanus to Cape Town and a potential
change of schools, be assessed as soon as possible by an expert professional.
In this regard, the parti es are directed to adhere to their agreement contained in
the Parenting Plan read with the attached Annexure “X”, which were incorporated
in their Final Decree of Divorce granted on 30 April 2021. In the event that the
parties fail or refuse to agree on th e costs of such expert professional to attend to
the aforementioned assessment, such costs shall be shared between them
equally.
3. That the applicant is ordered to pay the costs of the application on an
attorney and client scale to be taxed.
Common cause facts
4. The common cause facts are summarised as follows:
4.1 The parties were divorced on 30 April 2021, and the Final Decree of Divorce
incorporates a Consent Paper and Parenting Plan, attached to which is Annexure “X” ,
containing the procedur e to resolve disputes related to parental rights, responsibilities,
care and contact in respect of the minor child, and the powers of the elected parenting
co-ordinator.
4.2 The applicant and the parties’ daughter reside in Hemel en Aarde, Hermanus.
The child, whom I refer to as J, attends C [...] H[...] High School and is, by all accounts,
an exceptionally talented dancer who has attained several dance achievements at her
young age. One of her recent achievements is that she represented South Africa at t he
2024 Dance Star Competition in Croatia. At the time the application was launched, J
attended J[...] D[...] in Hermanus.
4.3 The father, a managing partner at T [...] Co. (Pty) Ltd, resides permanently in Val
de Vie Estate, Paarl. In terms of the Divorce Order (incorporating the Consent Paper
and Parenting Plan ), he enjoys reasonable contact with his daughter . His maintenance
obligations toward her include the payment of school fees, costs of extra murals, school
books, cellphone and related expenses, addi tional educational costs, medical aid
contributions and the payment of pocket money. At this juncture I point out that the
Consent Paper includes a reference to the parties’ son who attained the age of majority
and whose interests did not form the subject of this application.
4.4 Paragraph 3.5 of the Consent Paper makes provision for either party to approach
the Maintenance Court for a review of the maintenance granted in the divorce order.
Furthermore, no cash amount is stipulated therein, however, it is common cause that on
6 November 2023, the Hermanus Maintenance Court granted a n order by consent in
terms of which the father was ordered to pay R6000 per month for J2. All other clauses
related to maintenance in the Consent Paper incorporated in the Final Decree of
Divorce, remained extant. It is undisputed that the respondent p ays R7000 as cash
maintenance currently for J in terms of the Hermanus maintenance order (Hermanus
order) .
4.5 It is evident from the affidavits filed in the application that the Hermanus order
was never varied and that the respondent continues to pay the cash maintenance as
well as complying with the ancillary maintenance provisions as contained in the Final
Decree of Divorce .
4.6 Pursuant to the events which transpired in this application related to the
applicant’s desire that J relocates to Cape Town, enrolls at R[...] House Green Point
(R[...] House) and attends K[...] D[...] U[...] in Edgemead (K[...]), the parties engaged in
mediation with Michelle Joubert, Family Mediator3 but the applicant subsequently
decided to withdraw from the mediation process.
The opposed application for urgent relief
5. In her founding affidavit, the applicant states that the minor child exhibits
exceptional dancing talent and prowess and that J[...] D[...] in Her manus no longer
provides a suitable platform for her to showcase her dancing skills. These views are
apparently s hared by the child and the J[...] D[...] teacher. A Somerset West dance
school offered her an invitation which led to J being able to compete in an international
competition hosted in Croatia. According to the applicant, the only suitable dance school
of equitable calibre which would provide her with international exposure in the dance
2 LDH6
3 CAH7
field, is Prestige Dance in Somerset W est but the distance from Hermanus makes this
dance school unsuitable.
6. The applicant’s timeline which, according to her, render ed the application urgent,
was as follows: on 9 November 2024, J, of her own accord, auditioned at K[...] in Cape
Town. On 16 November, the latter confirmed that J was accepted to the dance school
and that dance classes would commence on 20 January 2025. From annexure CAH3,
the acceptance letter, it is apparent that J was accepted immediately upon conclusion of
the audition. A l ate enrolment is/was not an option in light of preparation for dance
competition s.
7. On 28 November 2024, the applicant engaged the respondent to discuss J’s
enrolment at R[...] House and joining K[...]. She emailed the respondent a lengthy
undated lette r in which she inform ed him, inter alia , that J was accepted at K[...] and
would compete in 2025, and that pursuant to her research regarding the best school
options, accommodation , travel expenses and time , R[...] House was the best option.
The applicant advised that she was in contact with the R[...] House school mistress and
furthermore, that the school fees would be R15 000 per month. According to the
applicant, she was informed that the child would be e ligible for a bursary from 2026
onward.
8. On 6 December 2024 the respondent replied to the email, indicating that the
applicant was welcome to have the matter referred to mediation with Ms Joubert . The
timeline reflects that on 18 December the parties c onducted an online mediation
session with her4. According to the applicant, the mediation was postponed to 16
January 2025. Her version was that because the R[...] House school year commence d
on 15 January 2025 and K[...] would commence classes on 20 Janua ry, the urgency of
the matter and circumstances preclude d the matter being mediated on the timeline as
suggested by Ms. Joubert.
4 CAH7
9. On 23 December 2024 , the applicant addressed correspondence to the
respondent requesting interim maintenance pending the completion of the mediation
process ; failing that, an application for variation of the maintenance order would be
launched . The interim maintenance was requested as from 1 January 2025. The
applicant did not receive the respondent’s consent to the enrolmen t of the ir daughter at
R[...] House.
10. In respect of her financial circumstances, the applicant stated that s he earn ed
R6000 per month from a cleaning service, utilise d approximately R30 000 per month
from the capital she receives from the divorce sett lement to supplement her income5,
holds a pension interest only accessible once she reaches the age of 55 years and has
an interest in the Hemel en Aarde house which forms the subject matter of pending
litigation in this Court between the parties.
11. The minor child’s monthly maintenance needs include the following6: R15 000
tuition fees, R15 000 R[...] House fees, R5 000 K[...] dance fees, R22 500
accommodation costs and R3 000 transport costs. The total monthly expenses,
excluding the R[...] deposit , totals R51 300. The applicant confirm ed that the respondent
pays R7 000 plus J’s remaining expenses and that she cannot afford to settle the
difference of R44 300 per month as she was depleting the capital at her disposal. The
applicant refer red to annexure CAH10, a quote for two -bedroomed accommodation in
Green Point for herself and J at a total cost of R45 000 per month in support of the
claim for accommodation costs for J .
12. The applicant ma de the averment that the respondent earn ed more than R100
000 per month as a net salary at the time of the divorce and also has earnings in equity ,
received annual bonuses in respect of fees, employment and holds executive positions
at A[...] F[...]. He also h eld crypto currency and has a property portfolio which include d
properties owned in Stellenbosch. She thus allege d that he has the necessary means to
5 The capital is invested with PSG Wealth, CAH9
6 I have not listed all the expenses, only those which are contentious
satisfy the increased maintenance claim and requirements of their daughter.
13. The applicant s ought an interim maintenance order pending the finalization of a
variation application in the Maintenance Court to be instituted before 15 February 2025.
The appl icant’s view was that she c ould not approach the Maintenance Court on an
urgent basis requesting an interim order and so, without the relief from this Court, she
could not obtain additional funds which would allow J to achieve her full potential.
14. Furthermore, the applicant made the averment that the child was not guaranteed
a place at K[...] in 2026, and should she forfeit the opportunity to join the dance team in
2025 , it would have a lasting effect on her life and future. The applicant maintains that
the respondent has a duty to maintain J and also has the means to pay the increased
maintenance requirements and were the relief not to be granted, J would be robbed of a
chan ce to realise her dreams and aspirations7 and her development would be
hampered.
15. The applicant further state d that despite the urgent situation, the respondent
failed to respond to her letter of 23 December 2024, and she was thus left with no
alternative but to approach th is Court on an urgent basis. In respect of service , the
applicant allege d that the Sheriff o f the High Court was not contactable and thus un able
to serve the application, which was eventually served in a different manner in terms of
the Rules. In respect of costs, the applicant sought costs in the event of an opposition of
the application.
16. The respondent’s answering affidavit is quite lengthy and only the pertinent
aspects are referred to. According to the respondent, the application was not urgent and
was nothing more than a calculated attempt to induce him to increase J’s maintenance
by mo re than R44 000 without first having to undergo a maintenance inquiry conducted
by the Maintenance Court and also s ought to compel him to consent to enrolment at
R[...] House without his prior knowledge. His view was that th e sudden change of
7 Par 49, p16
schools was n ot in the child’s best interests and not a viable option.
17. The respondent furthermore critici sed the applicant when alleging that she was
unhappy with the terms of the Divorce Order incorporating the Consent Paper and
wishe d to take a second bite at the cherry rather than approach the Maintenance Court.
He furthermore argued that in view of the applicant’s relationship with her partner who
lived in Green Point , the application was premised on her desire to relocate to Green
Point to be closer to him. The respondent was n ot opposed to his ex -wife’s relocation
but drew the line at what seemed to be an attempt to force him to foot the bill and
expenses for such relocation.
18. As far as urgency was concerned, the respondent highlight ed certain important
information in respect of the timeline proffered by the applicant , which he submitted was
either not disclose d and/or was not referred to in the founding affidavit . The respondent
state d that on 11 September 2024, the applicant made payment to counsel and he
attributed this payment to the applicant having obtained legal advice regarding an
intended relocation in September 2024 already and withou t notice to him8. It was
evident from an email between the headmistress of R[...] House and the applicant on 18
September 2024 already, that J had a trial day at R[...] House . He also referred to the
applicant’s further response to the headmistress on the same date wherein she
informed the latter that sh e (the applicant) had to provide the respondent with enough
reason for him to pay for the 2025 fees and so enquired about a 2026 scholarship for
their daughter .
19. The respondent accused the applicant of not discussing the changes to the
child’s schooling with him nor that J was invited to R[...] House for a trial day. He
emphasized that the parties were required to make joint decisions regarding schooling
as provided for in the P arenting Plan and alleged that the trial day at R[...] House
occurred approximately seven weeks before the dance audition at K[...], which took
place on 9 November 2024. Furthermor e, on 1 7 October 2024, the applicant paid R550
8 CAH11
to R[...] House as an application fee9. On 20 November 2024 , the respondent met the
owner of JD Dance Academy . Sometime thereafter his daughter contacted him and
informed him of her intended change of schools and that she had auditioned at K[...] on
9 November and was accepted to th e latter dance school as well as R[...] House in
Cape Town . The respondent was also advised by J that she would be relocating to
Cape Town and the gist of the rest of the conversatio n was that he was expected to pay
the increased school and related fees and the K[...] dance school costs.
20. The respondent confirm ed receiving the email of 28 November 2024 from the
applicant wherein she requested a substantial increase in the maintena nce and
informed him of the intended relocation to Cape Town and J joining the new dance
school. He responded on 29 November 2024, informing the applicant of the radical
departure from the status quo and that he would reply by 6 December, which he then
did, advising that she may go ahead with the mediation process. At this point, it is
important to highlight that the applicant failed to indicate in her founding affidavit that the
respondent indeed responded to her email. The relocation was only made known to him
the day before , on 28 November 2024, during his conversation with J .
21. The respondent points out further that the applicant only contacted the mediator
approximately a week after he confirm ed his willingness to attend mediation10. The
respondent’s contention was that it was known at all material times that the mediator
would be taking leave over the pre-Christmas period and that resulting from the
mediation process, the parties would have n eeded to exchange financial information by
20 January 2025 . The mediator would have conducted a voice of the child assessment
and meet with J on 16 or 17 January 2025 .
22. The respondent submit ted that despite the mediation process and the mediator’s
proposal to reconvene on 20 January, the applicant withdrew from the mediation
process. This is evident from annexure LDH4, an email from the applicant in which she
9 CAH11
10 The mediator contacted him on 13 December 2024
indicate d that mediation ha d failed to resolve the matter and that she ha d no option but
to withdraw from such process. The respondent was requested to respond on truncated
timelines, which he did. In view of the orders granted herein, I do not address the issue
of affordability of maintenan ce and the respondent’s earning s in these Reasons .
23. The respondent’s view was that there was no urgency or that the urgency was
self-created seeing as the applicant acted in September 2024 already to secure the
child’s trial day at R[...] House, weeks before the dance audition at K[...] in Edgemead.
He submit ted that the applicant abandoned the mediation process and brought apparent
urgent proceedings two weeks before the planned relocation a few days prior to the
commencement of the 2025 school year. H is view was that the applicant d id not explain
why the child’s best interests would be served by relocating in Grade 9, leaving C[...]
Hermanus for which he ha d already paid partial fees for 2025, why J needed to m ove to
Green Point as opposed to another ar ea closer to K[...], and the contradiction in the
dance fees or costs payable for J.
24. The respondent was of the view that the application was premature, not urgent ,
constituted an abuse of the Court time, and that the applicant sought to circumvent the
Maintenance Court process . In this regard, the respondent’s counsel motivated for a
punitive costs order on an attorney and client scale. In respect of the child’s
maintenance needs as set out in the applican t’s papers, the respondent denie d that he
had the necessary funds to satisfy those needs as he ha d a monthly shortfall. In respect
of the order for an interdict, the respondent’s averments and submissions correspond in
that he argue d that the applicant d id not satisfy the requirements for such interim
interdict and that what was actually sought was relief akin to a Rule 43 order, even
though the latter Rule was not applicable as the parties were already divorced at the
time the application was launched.
25. In reply, and insofar as the attack on urgency was concerned, the applicant
accuse d the respondent of “sluggishness”11 in respect of responding to emails and to
11 Par 11, p168
the mediator’s request for the ir financials . She elaborate d that having concluded her
investigations, she was of the view that R[...] House was a natural choice to enroll J in
due to her exceptional achievements in academia and dance and that she ( J) would be
placed in a position to contribute positively to the standard of Gr ade 9 learner s at R[...]
House. According to the applicant, the mediator took leave suddenly , on 24 -hours’
notice . The applicant persisted with the view that the timeline provided by the mediator
would not be conducive as the dance classes at K[...] were due to commence on 20
January and the R[...] House school year on 15 January , respectively. The applicant
furthermore held the view that if the matter was not heard in the Urgent Court, J would
then be “robbed of an opportunity to progress and fulfil h er potential” .12
26. The applicant regard ed increasing J’s social network by offering her the
opportunity to dance at a prestigious dance institute as an enhancement of the child’s
development which , at the time of the application, was at a crucial stage as she was 14
years old. Furthermore, relocating as requested by the applicant - that is, five days
before the start of the new school year – would allow her daughter to form lifelong
bonds . The applicant submitted that if the relocation and change in schools (academic
and dance) only occur red in 2026, it would mean that J would have missed out on
opportunities to realise her dance ambition and form new friendships. She furthermore
argued that R[...] House offer ed dance as an academic subject, is /was one of the top
schools in the Western Cape and would thus benefit J’s future dance ambitions.
27. As for “why relocate to Greenpoint?” , the reply was that living close to R[...]
House in Greenpoint would eliminate most travel expenses and time to school and
would allow J to form a closer bond with the applicant’s partner , his children and the
extended family. The alternative suggestions presented by the respondent, that the
applicant should have considered Plattekloof or Century City , were regarded as not
being viable residential options due to the distance from R[...] House and distance from
Greenpoint and support structures.
12 Par 20, p170
Discussion and evaluation
28. In the order granted after the hearing, the application was struck from the urgent
roll. Having regard to the averments in the affidavits placed before me at the time and
the submissions by counsel, the main reason for striking the application was due to self -
created urgency. My views and findings are based on the reasons which follow below.
29. Firstly, the applicant did not play open cards with the Court in respect of the
timeline which she sa id rende red her application urgent. Apparent from her founding
affidavit, wherein she was required to make out her case for urgency, her timeline
commenced on 9 November 2024 when J, of her own accord , auditioned at K[...] D[...]
U[...]. According to the applican t, it was only thereafter, on 16 November, that K[...]
accepted the child for the current year, that is, approximately a week after her audition.
Secondly, having read the founding affidavit, the impression gained from paragraph 19
thereof was that it was o nly after confirmation of the successful dance audition that the
applicant commenced her investigation into suitable schools which offer ed dance as an
academic subject.
30. However, the above timeline and the applicant’s reasoning for enrolling J at R[...]
House Greenpoint, were anything but transparent. I say this because in an annexure
which the applicant attache d to her affidavit, CAH4, it was apparent that around early or
mid-September 2024 already , J spent a tr ial day at R[...] House , yet the applicant failed
to mention this significant date in setting put the chronology supporting the urgency of
the application. In fact, CAH4 was simply referred to in passing in that the applicant
state d that J would qualify for a R[...] House bursar y for 2026. The headmistress
respond ed in the affirmative to the applicant’s request in an email of 18 S eptember
2024 which read as follows:
“I have to provide J..’s father enough reasons for him to pay for 2025 fees so if at
all possible – can you secur e a 2026 scholarship for J.?13
13 CAH4
31. Having regard to what is stated above, the failure to inform the Court about the
mid-September 2024 date was significant as it contributed to my determination whether
the application for such drastic relief was urgent or not . In my view, and as correctly
submitted by the respondent’s counsel, the timeline commences at the earliest date on
18 September 2024 and no t on 9 November 2024, the dance audition date, as the
applicant suggested to the Court. It is also significant that the emails of 18 September
2024 also provide insight not only into the applicant’s conduct but also her intention at
the time leading up to the application on 10 January 2025. To clarify, it bec ame clear to
me that the applicant had formed the idea or intention in mid -September 2024 already,
and not in November 2024, that J would enroll at R[...] House Greenpoint.
32. Furthermore, the applic ant would have the Court believe that the reason for the
change of school from C[...] Hermanus to R[...] House was because J would be
attending the K[...] D[...] U[...] school in Edgemead and would thus have to relocate to
Cape Town and attend a school here. However, her own annexures do not support this
contrived view because as indicated above, the R[...] House trial date and the
applicant’s interaction with the school in order to secure a place and scholarship for her
daughter, occurred on 18 September 2024 already , nearly two months prior to the
dance audition and confirmation of acceptance to K[...] U[...]. In my view, there is simply
no explanation for this glaring inconsistency and failure to set out the correct
commencement date of the timelines related to urgency.
33. A further worrying aspect which even the replying affidavit did not allay, was that
the applicant wishe d the Court to believe that one of the reason s why J should attend
R[...] House, and the respondent be ordered to consent to such enrollment , was due to
the fact that R[...] House was one of two schools to offer dance as an academic subject.
Yet, there was no specific mention of the reason why J should attend R[...] House was
because dance was offered; rather, the impression was certainly created that R[...]
House was suitable because it was in Greenpoint, where the applicant’s partner and his
family reside. My understanding, and also that of the respondent’s counsel, was that the
move to Cape Town was so that J could attend K[...] U[...] which would expose her
talent to international dance opportunities .
34. In response to the queries and attack on the is sue of urgency , the applicant’s
counsel argued that his client had not rested on her laurels a s she had embarked on
mediation to resolve the issues related to the school change and increase in
maintenance but that the mediation had failed. T he applicant seem ed to hold a similar
view regarding a failure of the mediation process, yet this was anything but correct. I
say this becau se it was apparent from the affidavits that the applicant did not inform the
respondent of her intentions to relocate the child to Cape Town, nor had she informed
him of the proposed change of schools and dance school. The truth of it was that he got
wind of th e developments indirectly from his daughter in November 2024 after she
telephonically informed him of the potential schooling and dance changes14, and it was
only eight days later that the applicant informed him of the intention to relocate and
change dance and academic schools .
35. The end November 2024 email from the applicant wherein she finally inform ed
the respondent of the imminent changes in light of a relocation to Cape Town, was not
met with a response only on 6 December 2024 as the applicant alleged . Rather, the true
state of affairs as depicted by the respondent, and supported by the correspondenc e,
was that he immediately re plied to the email the next day ( 29 November 2024) and
stated that the matter could be mediated15. Once again, the applicant selectively or
deliberately - it is unclear which - failed to indicate th at the respondent replied to her
email on 29 November 2024 .
36. The further questionable actions of the applicant relate to her failure , once again,
to mention in the founding affidavit that on 17 October 2024, she paid R550 as an
application fee to R[...] House . This transaction was clearly evident from her First
14 By all account, this occurred on 20 November 2024
15 LDH1
National Bank October 2024 statements attached to her founding affidavit16. She
attache d her bank statements for purposes of indica ting her income and expenses in
relation to her increased maintenance claim of more than R44 000 per month, yet on
the issue of a timeline related to urgency, the applicant fail ed to mention that on 17
October 2024, she paid such fee to R[...] House for ad mission of J to that school . This
failure to disclose another pertinent fact is problematic as it underscores the applicant’s
selective disclosure of chronological dates and times relevant to the issue of urgency.
These non -disclosures, or selective disclo sures, played a significant role in the
assessment of the applicant’s bona fides in approaching the Court on such short notice
and during the High Court recess period.
37. In my view, the applicant should have disclosed the event of 17 October 2024 in
her founding papers , but it was left to the respondent to alert the Court to the relevance
of the date and the corresponding action taken on such date . This lead me to conclude
that long before the dance audition on 9 November 2024, the applicant had already
taken s teps to apply for and enroll J at R[...] House for 2025 and did so without
informing the respondent, who is the co -holder of parental rights and responsibilities in
relation to their daughter . Clearly, he was sidestepped on the issue of his daughter’s
relocation and change of schools and only placed in the picture at a later stage, in
November 2024.
38. Even if I were to ignore the 18 September 2024 date as the commencement of
the timeline for purposes of urgency, there remained the 17 October 2024 event/date
which was simply not mentioned. At the earlies t, therefore, the “urgency timeline ” should
have been disclosed as having commenced in mid -September 2024 and at the latest,
17 October 2024 , yet as seen above, the applicant failed to indicate these dates in her
application .
39. On the issue of a failed mediation process as a further motivation for urgency ,
the applicant ’s insistence that mediation failed was incorrect. The facts indicate that the
16 CAH11
mediator saw the parties on 18 December 2024 , a few days before Christmas, and
consulted virtually with them, whereafter she compiled a comprehensive report. The
suggestion that it was somehow the mediator’ s fault that the process failed, was not
supported by the facts. The t hrust of it seem ed to be that the mediator had in any event
intended to be on end -of-year leave and blaming Ms. Joubert for going on leave , simply
does not assist the applicant at all .
40. It is apparent from the mediator’s report that she dealt with, inter alia, the
following: the parties’ views and concerns, the unknown facts, the information required
by the mediator in order to assist the parties to make an informed decision regarding
relocation and schools , care and contact issues, proposals for the way forward and a
recommendation that both parties were to provide their income and expenses by 20
January 2025 in order for an assessment to be made on affordability in respect of the
proposed relocation of the mother and child .
41. From the facts and submissions, I conclude that the mediation had neither failed
nor was it halted . At the risk of repetition, the mediator required certain pertinent
information from the parties and gave them a deadline for submission. It was evident
that there were concerns a round the following: the timing and rush to make a decision
about a change of schools ; the drastic school fee increase from the current C[...]
Hermanus fee to the R[...] House f ee; the lack of any firm detail and arrangements
regarding the child’s accommodation ; the indication that decisions regarding the child
seemed to be based solely on the child’s dancing abilities17; the impact of relocating J
who was in Grade 9 ; the unknow n costs and tuition fees ; whether dance as an
academic subject would benefit J in terms of international tertiary education ; how the
applicant’s request for increased maintenance was calculated, and more.
42. Importantly, the mediator wished to review the parties’ means, wished to assess
the child’s best interests in light of potential significant changes, emphasized that both
parents were actively involved in making major decisions about the child’s life and were
17 The correctness of this view, given the above discussion, is uncertain
cautioned about premat urely involving children in such decisions and creating
expectations before concrete arrangements were finalised between the parents. There
was no doubt that Ms. Joubert intended to reconvene the mediation process upon the
parties’ submissions of their fin ancials and after having conducted a voice of the child
assessment on 16 or 17 January 2025 .
43. Having regard to the above and CAH7, I find that Ms. Joubert therefore had not
conclude d the mediation process nor had it failed, nor had she abandoned the process
but rather that it seemed that when the applicant did not get her way or did not like the
way the mediation was going, she then decided to withdraw from the process of her
own volition on 27 December 202418. It was apparent from CAH7 that the applicant was
of the view that relocation was in the child’s best interests , yet the mediator, correctly in
my view, was of the view that the child’s best interests would still have to be assessed.
44. The applicant ma de out in paragraph 52 of the founding affidavit that as there
was no response to her correspondence of 23 December 202419 seeking the increased
maintenance, she was left with no option but to launch the urgent application on 3
January 2025 . Yet, this was also not entirely correct when regard is had to the
answering affidavit and annexure LDH3 thereto , because the respondent indeed
addresse d correspondence to Ms. Joubert , dated 27 December 2024, wherein he
queried the applicant’s withdrawal from the mediation pr ocess . He indicated that he ha d
co-operated in respect of mediation and enquire d about the w ay forward. The
respondent’s explanation that the applicant was included in the correspondence to the
mediator was not denied, hence, I accept ed that she knew that the respondent was
querying her maintenance increase request pursuant to the mediation report of a few
days earlier. Thus, the applicant’s basis for approaching the Court urgently due to the
respondent’s alleged lack of response to the 23 December 2024 letter was not simply
not correct
18 LDH4
19 CAH8
45. Having regard to the issues in the timeline and the failure to disclose pertinent
dates and actions, I agree with the respondent’s submission that the urgency was self-
created. In my view, nothing barred the applicant f rom approaching the Court as far
back as mid -September or for the latest, immediately after 17 October 2024 with an
urgent application, yet she failed to do so. She effectively waited more than three and a
half months before approaching this Court, not onl y during the January recess period
but also on truncated timelines, forcing the respondent to appoint legal representatives
to oppose the application on his behalf and she did so five days prior to the new school
year commencing.
46. Given the failure to disclose the timelines as mentioned above and the
applicant’s failure to approach the Court at that stage, alternatively, delaying the matter
for months and waiting to approach the Court until a few days before the
commencement of the 2025 school year , I held the view that urgency was self -created.
It bears repetition that a party who approaches the Court on an urgent basis in t erms of
Rule 6(12) should be mindful of the dicta in Commissioner for the South African
Revenue Service v Haw ker Air Services (Pty) Ltd20 which highlights the possible
consequences if s uch party fails to make out a case for urgency or if the urgency is self -
created :
“Urgency
[9] One of the grounds on which Patel J dismissed the applications was that at
their inception they had lacked urgency. This was erroneous. Urgency is a
reason that may justify deviation from the times and forms the rules prescribe. It
relates to form, not substa nce, and is not a prerequisite to a claim for substantive
relief. Where an application is brought on the basis of urgency, the rules of court
permit a court (or a judge in chambers) to dispense with the forms and service
usually required, and to dis pose of it ‘as to it seems meet’ (Rule 6(12)(a)). This in
effect permits an urgent applicant, subject to the court’s control, to forge its own
rules (which must ‘as far as practicable be in accordance with’ the rules). Where
20 [2006] SCA 55 par 9
the application lacks the requi site element or degree of urgency, the court can for
that reason decline to exercise its powers under Rule 6(12)(a ). The matter is then
not properly on the court’s roll, and it declines to hear it. The appropriate order is
generally to strike the application from the roll. This enables the applicant to set
the matter down again, on proper notice and compliance .”
(my emphasis; f ootnotes omitted)
47. The further question was whether the applicant could be afforded substantia l
redress in due course , which is a lso a requirement in terms of rule 6(12(b). In this
regard, the applicant simply failed to o vercome this hurdle too. Her case was that given
the looming commencement of the new school year and th at the K[...] dance classes
would commence on 20 January 2025 , she had no other option but to approach the
Court urgently . However, on a consideration of her founding affidavit, it became
apparent that she did not explicitly set out the reason why she could not be affor ded a
hearing in due course.
48. I emphasise that the urgency was of the applicant’s own making , and in my view,
there was simply no justifiable reason why she co uld not have approached the
Maintenance Court months ago for a variation of the High Court m aintenance order
once she had intended or d ecided upon the relocation and the R[...] House enrolment ;
similarly, there was no reason offered why she had not approached this Court sooner
than 3 January 2025. Put simply, there was no reason to approach the C ourt during
recess on truncated timelines on the eve of the commencement of the 2025 school year
when the issue of a new school, a change in the dance classes and relocation had first
arisen in mid -September or October 2024 already. In view of the above re asons, the
matter was struck from the roll.
49. I do not express a view as to whether a basis is made out for the granting of
increased maintenance in the form of an interim interdict pending a variation application
in the Maintenance Court because the application was struck from the roll for the
reasons expressed above . However, the applicant was of the view that if an order was
not granted, the child’s best interests would be prejudiced and in effect, her
opportunities at K[...] would be infringed a nd her future prospects in the international
dance community would be diminished. There was no real opposition to this view.
Hence, being m indful that I was dealing with relief related to a minor child , that the bests
interests of the child w ere still to be assessed, and as the High Court is the upper
guardian of minor children, after some consideration, I concluded that that the door
should not be closed in respect of the future prospects, both academic and dance -
related, in respect of the minor child, J.
50. Whether enrolling J at R[...] House, removing her in Grade 9, leaving C[...]
Hermanus, leaving behind all the friends and familiar surroundings /commmunity and
current dance school , would be in J’s b est interests, must still be assessed by a
professional expert . One would hope that the doors are still open for this teenager to
exhibit her dance talent notwithstanding the application being struck from the roll. I hold
the view that, urgency issues aside, to simply have relied on the mother’s vi ew and the
child’s desire to join K[...] and R[...] House , without first assessing the child’s best
interests , particularly having regard to section 10 read with section 31 of the Children’s
Act 38 of 2005 (the Act) , would have been premature21.
51. In particular, se ction 31 of the Act states that:
31. Major decisions involving child
(1)
(a) Before a person holding parental responsibilities and rights in
respect of a child takes any decision contemplated in paragraph (b)
involving the child, that person must give due consideration to any views
and wishes expressed by the child, bearing in mind the child’s age,
maturity and stage of development.
21 Also read with section 6(2) and 7(1) of the Act
(b) A decision referred to in paragraph (a) is any decision —
(i) in connection with a matter listed in section 18(3)(c ).
(ii) affecting contact between the child and a co -holder of parental
responsibilities and rights.
(iii) regarding the assignment of guardianship or ca re in respect of the
child to another person in terms of section 27; or
(iv) which is likely to significantly change, or to have an adverse effect
on, the child’s living conditions, education, health, personal relations with a
parent or family member or, generally, the child’s wellbeing.
(2)
(a) Before a person holding parental responsibilities and rights in
respect of a child takes any decision contemplated in paragraph (b), that
person must give due consideration to any views and wishes expressed
by any co -holder of parental responsibilities and rights in respect of the
child.
(b) A decision referred to in paragraph (a) is any decision which is
likely to change significantly, or to have a significant adverse effect on, the
co-holder’s exercise of parental responsibilities and rights in respect of the
child.
[Commencement of s 31: 1 July 2007.]
(my emphasis)
52. The respondent’s submission that the applicant acted contrary to section
31(2)(a) of the Act, was convincing . Given the chronology of events herein, i t was
apparent that the mother made decisions about a change of school and relocation
months prior to the respondent first being notified thereof at the end of November 2024.
In view of the issues and concerns raised in the mediator’s report, the agreements
which the parties reached which are encapsulated in the Parenting Plan, and the
paramountcy of the best interests of the minor child, I thus granted an order in the terms
as set out at paragraph (2) of the 10 January 2025 order .
53. Insofar an appropriate costs award, the motivation for punitive costs in the
circumstances of this matter was justified. I have set out in some detail the failure to
disclose pertinent timelines , dates, and facts, as well as contradictions in the applicant’s
affidavit. Furthermore, she withheld information from the respondent in respect of the
intention to reloc ate the child and failed to act in ter ms of section 31 (2)(a) of the Act in
that she unilaterally decided in September/October 2024 , and without notice to and
engagement with t he respondent that J would relocate to Cape Town, change schools ,
and in so doi ng, failed or had no regard to the father’s views and wishes as a co -parent
and co -guardian of J.
54. Lastly, t he submission that I should not grant costs because the mother of a
minor child had approached the Court in the child’s bests interests held no sway . The
reasoning is based on the applicant’s failure to disclose material facts and timelines
which had a bearing on the finding related to urgency , her failure to act in terms of
section 31(2)(a) of the Act and her delay in approaching the Court , all of which
warranted a punitive costs order to signify the Court’s displeasure at such conduct.
__________________________
M PANGARKER
JUDGE OF THE HIGH COURT
Appearances :
For Applicant: Adv B Nothling
Instructed by: Kassel Skaar Cohen Attorneys
Cape Town
Per: Mr. R Kassel
For Respondent: Adv M de Wet
Instructed by: C & A Friedlander
Cape Town
Per: Ms. B Biassoni