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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO .: 008910/2025
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
Date: 6 February 2025
E van der Schyff
In the matter between:
L[...] P[...] W[...] R[...] Applicant
and
P[...] C[...] S[...] R[...] Respondent
JUDGMENT
Van der Schyff J
Introduction
[1] The applicant approached the urgent court with what can essentially be typified as
a Rule 43 application. He sought an order regarding the care and contact of his
minor child, and ancillary relief in the form of investigations by the Family Advocate
and other relevant experts.
[2] The respondent opposes the application and raised two points in limine . The first is
that the application is premature as no divorce summons has been issued. The
second is the absence of urgency.
Urgency
[3] It is trite that a party should only approach the urgent court when that party can
make out a case that it would not be afforded substantial redress if the matter is
not heard in the ordinary course. In casu , the context within which the facts need
to be evaluated to determine whether the applicant was justified in approaching the
court on an urgent basis, includes the reality that a Family Court Roll exists in the
Gauteng Division of the High Court. In Pretoria, parties issuing papers in Family
Court matters, are generally before the court in four to six weeks.
[4] The parties are the parents of an 11 -month -old boy, who was bo rn prematurely at
28 weeks . As a result, he is vulnerable to lung infections. The applicant informs
that the marriage relationship between him and the respondent has broken down
irretrievably and that he has instructed his attorney to issue a divorce summons.
He contends that he is the child’s primary caregiver but informs that a full -time
nanny was appointed three months ago.
[5] When the applicant returned home from work on 20 January 2025, he found that
the respondent vacated the family home and took the minor and the helper (nanny)
with her. Since she vacated the family home, he had no contact whatsoever with
the minor, and the respondent refused to take his calls and ignored his messages.
He states that the respondent refuses to inform him where she and the minor
reside. On 21 January 2025, his attorney forwarded a letter to the respondent’s
attorney demanding that the status quo be restored and that the parties implement
a joint residency regime, failing which an urgent application would be launched.
The respondent replied by requesting that he provide suggestions for ‘ age-
appropriate contact’.
[6] He subsequently approached the court on the basis of urgency. The application
was issued on Friday , 24 January 2025. The respondent was called upon to file an
answering affidavit by Tuesday , 28 January 2025, and the matter was enrolled to
be heard on 4 February 2025.
[7] The applicant avers that his concerns for the minor child’s well -being were
exacerbated by the fact that the respondent suffers from depression , which
severely interferes with her ability to care for the minor.
[8] The applicant conveniently failed to inform the court that the respondent requested
that the applicant vacate the family home in a letter dated 13 January 2025. A
follow -up letter was emailed to his attorney of record on 20 January 2025 ,
informing that the respondent decided to vacate the family home with the minor
because the applicant failed to vacate. The applicant’s attorney was also informed
of the address where the respondent and the minor found themselves and
intended to reside pending the outcome of a Rule 43 application she intended to
institute. In this letter , the respondent was invited to provide reasonable and age -
appropriate contact proposals pending the outcome of the Rule 43 application.
[9] The respondent acknowledges that she suffers from depression but claims to have
it under control. She informs the court that she qualified as a psychiatrist after
having been diagnosed with depression.
[10] The applicant does not explain why he decided to approach the court on an urgent
basis instead of engaging in discussions with the respondent’s legal representative
regarding the minor’s residency and contact. In these circumstances , I cannot find
it was justified to approach the urgent court for the relief sought. There is no
reason why the applicant must be afforded preferential treatment, so to speak, for
his application to be heard urgently . In all the Rule 43 applications heard on a
weekly basis in the Family Court, the interests of children are at stake. In all those
matters, concerned parents anxiously await the court to decide on their and their
children’s fates , and in all those matters , the issues of residence and contact are
important.
[11] In light of the offer to engage in discussions, and in the absence of any explanation
as to why that offer was not taken up but the decision instead made to approach
the court on an urgent basis, it was not justified to enroll the application on the
urgent roll.
Best interest of the minor child
[12] Having said that, the parties are before me now. I am of the view that it is in the
minor child’s best interest to regulate his parents’ rights regarding his contact and
care since it might motivate the parents to take a breather and approach the issues
more objectively.
[13] In the result an order is granted that deals with the minor’s primary residency, care ,
and contact pending an investigation by the Office of the Family Advocate. The
issue of maintenance is not addressed in this order and in the event that the
parties cannot amicably settle the issue of maintenance, the existence of this order
shall not be an obstacle to the respondent to approach the court for an interim
maintenance order.
[14] As for costs, the costs of the application are to be borne by the Applicant , who
approached the urgent court without sufficient justification. The issues are ,
however, not overly complex, and since both parties may benefit from the stability
that the order will bring, it is justified for costs to be as between party and party on
Scale A.
ORDER
In the result, the following order is granted:
1. The parental responsibilities and rights with regard to the guardianship of the minor
child, K[...] Z[...] N[...] R[...] , (“K[...]”), as contemplated in Section 18(2)(c) and
18(3) of the Children’s Act 38 of 2005, are awarded to both parties;
2. The parties retain full parental responsibilities and rights with regard to the care of
the minor child, as contemplated in Section 18(2)(a) of the Children’s Act, 38 of
2005 , subject to the terms of this Order ;
3. The minor child shall primarily reside with the Respondent;
4. The Applicant shall be awarded contact in respect of the minor child on the
following basis:
a. Contact every Monday, Wednesday , and Saturday for a period of 3
(three) consecutive hours ;
b. Contact on the birthdays of the Applicant and the Respondent ,
respectively , as arranged between the parties;
c. The aforesaid contact is to be exercised with the assistance of a
nanny/ childminder when such assistance is available and if
necessary ;
d. The Applicant shall be entitled to exercise his contact in the flatlet on
3[...] A[...] Avenue property, subject to giving at least 6 hours prior
notice to the Respondent;
5. The Applicant shall keep the minor child and the Respondent as dependents on his
medical aid fund;
6. The Respondent and the minor child shall return to and reside in the communal
home at 3[...] A[...] Avenue, Waterkloof Pretoria, Gauteng , as of Saturday, 8
February 2025;
7. The applicant shall vacate the 3[...] A[...] Avenue property by 20h00 on Friday, 7
February 2025;
8. This order does not prevent the Respondent from approaching the court for an
interim maintenance order;
9. The Family Advocate is requested to investigate and report on the care and
residency regime that is in the minor child's best interest . The Applicant is to
deliver a copy of the papers filed and the order to the Office of the Family Advocate
within 5 days of the order been granted ;
10. The Applicant must pay the costs of the application on Scale A.
E van der Sc hyff
Judge of t he High Court
Delivered: This judgment is handed down electronically by uploading it to the
electronic file of this matter on CaseLines.
For the applicant : Adv. N. Breytenbach
Instructed by: Du Preez Attorneys
For the respondent: Adv. B. Bergenthuin
Instructed by: Adams & Adams Attorneys
Date of the hearing: 5 February 2025
Date of judgment: 6 February 2025