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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: 2022-020777
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED: YES/NO
DATE 28 March 2025
SIGNATURE
In the matter between:
N[...] D[...] Applicant
and
P[...] D[...] P[...] D[...] First Respondent
MADALEEN BOTHA N.O . Second Respondent
JUDGMENT
Mazibuko AJ
INTRODUCTION
[1] The applicant approaches the court in terms of Rule 43 on an urgent basis ,
seeking an order in the following terms:
PART A
'2. That the Office of the Family Advocate be appointed to urgently
investigate the best interests of the minor children and under the below
powers and mandate:
2.1. That the Office of the Famil y Advocate is authorised to consult
with the applicant , first Responde nt and minor children, and the
applicant and First Respondent be mandated to ensure the
minor children attend to the requested consultations by the
Office of the Fami ly Advocate;
2.2. That the Office of the F amily Advocate is authorised to consult,
comment, discuss and collect. Collaborative material from the
relevant therapist of the minor children, applicant and First
Responde nt.
2.3. That the Office of the Family Advocate is authorised to consult,
discuss and collect collaborative material from the appointed
Cura trix.
2.4. The Office of the Family Advocate is mandated to review the
directives by made by the Curatr ix, as well as the contact and
residency arrangements of the minor children towards the
applicant and first Respondent, wherefrom the Office of the
Family Advocate will amend , or revoke , or endorse such
directive [with or without further amendment recommendations ];
2.5. The Office of the Family Advocate be required to report to this
Honourable Court by the return date of the hearing of Part B of
this application ;
3. That the curatrix must render any future directives to the Office of the
Family Advocate, and forb e, endors ed either by the family (sic).
4. The curat rix ( Second Respondent ) be ordered to report to this
Honourable Court by the return hearing of Part B of this application , the
reasons , finding s, basis, and collaborative material (s) in regard to
paragraph 9.5 of the founding affidavit insofar as it purports to be an
implementation of permanent primary residents with their First
Respondent ;
5. That the parties may supplement their papers regarding the hearing of
Part B of this application, following the recommendations and report of
the Office of the Family Advocate ;
6. Costs of the application to be payable by the First Respondent if
opposed, alternatively to be costs in the main divorce action;
7. Further and/or alternative relief.
PART B
1. Part B of this application is postponed to sine die until receipt of a
report by the Office of the Family Advocate.
2. All parties are entitled to supplement their paper in accordance with the
Rules of Court subsequent to recei pt of the report up by the Family
Advocate and /or Second Responde nt regarding the implementation of
such recommendations in relation to primary residence and contact,
with full reservation of the rights of all parties to address the Court
whether such recommendation should be implemented as is, amended
or amplified.
3. Further and /or alternative relief. '
PARTIES
[2] The applicant (Ms D[...] ) and the first respondent (Mr D[...] ) were married to
each other in 2008. Two minor children , [G…D… ] (GD), born in 2010 , and
[I…D… ] (ID) in 2012 , were born of the marriage.
[3] The second respondent is an attorney appointed by the court on 22 March
2023 as a curatrix ad litem ('the curatrix ') on behalf of the minor children.
BACKGROUND
[4] Divorce proceedings were instituted in 2022 .
[5] It was common cause between the parties that in terms of the court order, the
curatrix's power and duties were:
a. To investigate the issue of the minor children's best interest
regarding care and contact and to report back to the court on her
findings;
b. To interview the parties, the minor children and any person whom
the curator ad litem deems necessary for purposes of her investigation;
c. To refer the parties and their children for a forensic evaluation by a
clinical psychologist in private practi ce and to request the clinical
psychologist to investigate the issues of gatekeeping, parental
alienation and care and contact, and to compile a report with their
recommendation for the court ;
d. To act as curator at litem on behalf of the children in all litigation
between the parties, involving the minor children;
e. To refer either party or child for the appropriate therapy and to
liaison with the relevant therapists for purposes of the investigation;
f. To approach the courts in her capacity as curator ad litem for any
relief that shall serve the minor children's best interest;
g. To appoint an attorney and counsel to represent her in capacity as
curator ad litem.
h. To issue directives regarding care and contact in the children's best
interest;
i. To direct correspondence to the Office of the Deputy Judge President
to refer the matter for case management, if the curator deems same
necessary;
j. To approach the court for an extension of her powers, to serve the
minor children's best interest; '
[6] In November 2023, the curatrix compiled a report and made recommendations
concerning the minor children . A Case Manager was also appointed. The
children were taken for psychological evaluation. The psychologist
recommended, among others, a Parent Effectiveness Training course,
Psychiatric evaluation, monitoring for substance abuse and therapy. The
experts appointed had filed their respective reports. At the beginning of 2024,
Mr and Mrs D[...] enjoyed sharing their respective residence with the children
on a 50/50 basis.
[7] In May 2024, she issued an urgent directive to remove the minor children from
the care of both parents. They were placed with their maternal and paternal
aunts. According to the curatrix's directive, Mrs D[...] has supervised contact
with the children.
[8] In September 2024 , the Case Manager issued a directive regarding the parties'
engagement with the curatrix .
CONDONATION
[9] Mr D[...] brought an application seeking leave to file a supplementary affidavit.
He stated that at the time of filing his answering affidavit, he had not yet been
contacted by the Children's Court about Mrs D[...] 's initiation of legal
proceedings regarding the welfare and protection of the children.
[10] The condonation application is not opposed.
[11] A party in a Rule 43 application must act with the utmost good faith and fully
disclose all material information regarding their financial affairs. Further
affidavits, information and annexures are sometimes permitted and limited
according to the rules of evidence , viz; admissibility and relevance, for the
adjudication of the Rule 43 application.
[12] The supplementary affidavit intends to disclose information regarding the
children involved in this application. I find that Mrs D[...] would suffer no
prejudice when Mr D[...] ’s supplementary affidavit is admitted as evidence.
Therefore, i n the interest of justice, the application for condonation to file further
affidavit is granted.
Urgency
[13] Rule 6 (12) of the Uniform Rules requires applicants, in all affidavits filed in
support of urgent applications, to set out the circumstances that render the
matter urgent and why they cannot be afforded substantial redress at a hearing
in due course. The r ule affords the applicant the opportunity to create its own
rules within which a respondent must file a notice to oppose and an answering
affidavit. This is why condonation must be sought when the court is
approached. An applicant who cannot convince the court of the rationality and
necessity for the timeline devised by it should expect its application to be struck
from the roll with costs.1
1 E.M.W v S.W (26912/2017) [2023] ZAGPJHC 710, para 10.
[14] Deposing to h er founding affidavit in support of h er application , Mrs D[...]
asserted that the application is urgent for the following reasons:
[14.1] It concerns minor children. She had received several troubling
messages and continuous phone calls from GD, stating she was
unhappy and pleading with her to assist her , as she did not want
to reside with her father. Her father had taken her cellphone
away. On 4 February, GD made a call from Mr D[...] 's estate's
security guard's phone, expressing her desire to run away from
home . She could hear from her voice , and when she was with
her at her father's estate , GD was frantic and traumatised.
[14.2] On 5 February 2025, during a meeting between her attorneys
and the curatrix, the curatrix informed that the children would
live with Mr D[...] as a 'trial run. '
[14.3] On 20 February, GD informed her about their move from their
aunt's house to Mr D[...] 's new home without her and her
attorneys' knowledge.
[14.4] She feared for ID as she had spent more time with Mr D[...] and
had become aloof and defensive towards her, and her request
for bonding therapy with ID had been refused.
[14.5] The curatrix issued directives, among others, for removing the
children from their parents to the aunts without a prior court
order confirming such a directive. The directives had not been
approved or endorsed by the court, and the curatrix is not
vested with the authority to implement and enforce the directives
without the court's approval as the upper guardian.
[14.6] The curatrix had previously not informed , answered , responded
to or given feedback on her question regarding the well -being of
the children. Therefore, the Office of the Family Advocate is
required to investigate, review, endorse or not endorse the
curatrix's directives, ensuring that the voices of the children are
heard and that there be an accountability and action plan, as
she is not convinced that the curatrix' directives are in the best
interest of the children.
[14.7] For the curatrix to provide feedback in respect of the children's
primary residency of the children with Mr D[...] and the reasons
thereof.
[15] In reply, Mrs D[...] stated t he curatrix exceeded her authority extensively , acted
outside the scope of her duties, and made uninformed decisions, which the
court would not make.
[16] Mr D[...] dispute d that the application was urgent since the same Office of the
Family Advocate had already been approached by Mrs D[...] in June and
October 2024 concerning the same request . The relief sought was not
competent as the Office of the Family Advocate's statutory powers and duties
are specific and not that wide.
[17] In a supplementary affidavit, Mr D[...] averred that M rs D[...] had, in January
2025, approached the Children's Court in terms of section 53 of the Children's
Act2, initiating legal proceedings regarding the children's welfare and protection.
[18] The curatrix filed a report attaching expert reports regarding the well -being of
the children and their relationship with the ir parents. She also provided voice
notes of communication between Mrs D[...] and GD. She stated it would be in
the children's best interest for the parties to expedite the finalisation of the
divorc e. She recommended that the children should reside with their father
pending the finalis ation of the divorce . Further, the children and their parents
should continue with the recommended therap ies.
Discussion
[19] The applicant must explicitly set forth the circumstances that render the matter
urgent and the absence of substantial redress if not heard as a matter of
urgency. This is not the equivalent of irreparable harm . Delay will not
automatically result in the matter not being considered urgent.3
2 Act 38 of 2005.
3 (Molosi and Others v Phahlo Royal Family and Others [2022] 3 All SA 160 (ECM).
[20] Notwithstanding that Mrs D[...] is legally represented and knew on 31 January
2025 and again on 4 and 5 February that the children were living with Mr
D[...] , only on 4 March did she deliver her urgent application . The explanation
proffered for the delay in filing the urgent application between 5 February and
4 March was that the attorneys were still drafting the papers to launch the
urgent application to court . It can be accepted that Mrs D[...] had been fully
appraised of h er rights and any harm she could suffer with respect to the relief
sought at least since 31 January 2025. Nothing from the application
suggested that its preparation could take a period of four weeks.
[21] When a matter is brought to court on an urgent basis, the question to be
answered is whether or not the applicant will be afforded substantial redress
in due course.4 In the event that the applicant does not succeed to convince
the court that he will not be afforded substantial redress at a hearing in due
course, the matter will be struck from the roll.5 The matter may also be struck
from the urgent roll where the court finds that urgency was self -created.
[22] There is no evidence that the Office of the Family Advocate refused Mrs
D[...] 's request when she approached them in June and October 2024. Mrs
D[...] did not deny that she approached the Children's Court, initiating legal
proceedings regarding the children's welfare and protection in January 2025,
with the return date before the end of March. She stated that the purpose was
to secure a social worker to supervise her contact with the children. It is not
clear why Mrs D[...] , this time around, sought the Office of the Family
Advocate's assistance through a court order granted on an urgent basis.
[23] An argument was advanced on behalf of Mrs D[...] that the urgency was
created by the arbitrary, one-sided and unfounded decision of the curatrix
when she placed the children in the care of their father on what is referred to
as a "trial run ." The evidence reveals that in January / February, already this
fact became known to Mrs D[...] and her attorneys.
4 East Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty) Ltd and Others (11/33767)
[2011] ZAGPJHC 196 (23 September 2011).
5 SARS v Hawker Air Services (Pty) Ltd 2006 (4) SA 292 (SCA).
[24] The threshold to establish the juristic fact of "absence of substantive redress "
is lower than that of "irreparable harm " for the purposes of establishing an
interim interdict.6
[25] It was not contested that during one of the case management meetings, after
an extensive discussion, it was concluded that due to the involvement of the
many experts , there was no need to refer the children to the Office of the
Family Advocate. It is unclear why Mrs D[...] could not approach the Case
Manager if she were unhappy with the curatrix's directive or when her view
regarding referral to the Office of the Family Advocate had changed.
[26] It is prudent to mention that notwithstanding Mrs D[...] 's pleaded case , during
the hearing, in the heads of argument filed on her behalf, through her counsel,
complaints were levelled against the curatrix's conduct, powers and duties .
[27] Regarding urgency, Mrs D[...] proffered no persuasive explanation for the
delay of four weeks before the launch of the urgent application. The
appointment of the Family Advocate's Office does not require a court order.
[28] No facts or evidence were placed by Mrs D[...] before the court , justifying the
urgent attention of the court with regard to the curatrix's conduct concerning
the placing of the children, obliging the appointment of the Office of the Family
Advocate to intervene. Mrs D[...] has not passed the threshold prescribed in
uniform rule 6(12)(b) for the mentioned reasons . Therefore, the application
ought to be struck off the roll due to lack of urgency . For this reason, I need
not proceed to determine the issue of merits. This brings me to the next issue
concerni ng the costs.
COSTS
[29] It was argued on behalf of the curatrix that though there is no relief sought
against them, they have filed a report to assist the court by providing
6 Several matters on the urgent court roll 2013 (1) SA 549 (GSJ) .
information that may not ordinarily be at the court's disposal, for instance, the
fact that th ere exists a Case Manager for this matter and the other
developments in the matter. The facts of the present matter and the interest of
justice justify me to follow the general rule that the successful party should be
awarded costs .
[30] Consequently, I make the following order.
Order:
a) The urgent application is hereby struck off the roll due to lack of urgency.
b) The applicant will pay the costs , including that of counsel for the first and
second respondents, respectively , on scale B.
N G M MAZIBUKO
ACTING JUDGE OF THE HIGH COURT
PRETORIA
Heard on: 18 March 2025
Judgment delivered on: 28 March 2025
For the applicant : Adv GL Kasselman
Instructed by: JJ Raubenheimer Attorneys
For the first respondent: Adv I Vermaak
Instructed by: Arthur Channon Attorneys
For the second respondent: Adv LC Haupt
Instructed by: Shapiro and Ledwaba Inc