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
GAUTENG DIVISION, PRETORIA
CASE NO: 113234/23
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES:NO
(3) REVISED: NO
DATE
SIGNATURE
In the matter between:
E[...] E[...] Applicant
and
T[...] C[...] E[...] Respondent
Delivered : this judgment was prepared and authored by the judge whose name is
reflected and is handed down electronically and by circulation to the parties/their
legal representatives by email and by uploading it to the electronic file of this matter
on Caselines. The date for handing down is deemed to be 16 May 2025 .
JUDGEMENT
NDLOKOVANE AJ
[1.] This is an opposed urgent application in which the applicant, in her notice of
motion dated 25 March 2025, seeks an order from this Honourable Court in the
following terms:
“
1. That the matter be heard as one of urgency and that non -compliance with
the Uniform Rules of Court be condoned;
2. That the Divorce Settlement Agreement, which was made an order of
court on 6 February 2025, be rescinded in terms of the common law;
3. That the Office of the Family Advocate be directed to investigate the
prevailing circumstances of the minor children and submit its
recommendations to this Court;
4. That, pending finalisation of the Family Advocate’s investigation, primary
residence of the minor children be awarded to the applicant;
5. That the parties be directed to proceed with a forensic audit aimed at
determining the value of the joint estate, which audit had commenced prior
to 6 February 2025;
6. That costs be awarded against any party opposing the relief sought; and
7. That the applicant be granted further and/or alternative relief as this
Honourable Court may deem appropriate. (own emphasis)”
[2] When the matter was called virtually, the Court heard submissions from both
parties on the issues of urgency and the merits of the application. Judgment was
thereafter reserved to allow the Court to fully consider the submissions and legal
principles involved.
TIME PERIODS AND PROCEDURAL HISTORY
[3] In her notice of motion, the applicant directed the respondent to:
(a) File his notice of intention to oppose by 14h00 on 26 March 2025.
(b) Appoint an address in terms of Rule 6(5)(b) for purposes of service; and
(c) File his answering affidavit, if any, by 15:00 on Friday, 28 March 2025.
[4.] The notice of motion and founding affidavit were both dated and
commissioned on 25 March 2025. A stamped return of service reflects that the
documents were served electronically on 26 March 2025 at 15:05:53.
[5.] The first respondent’s notice of intention to oppose is dated 26 March 2025 at
14:33:56, and the answering affidavit was electronically filed and uploaded to
Caselines on 28 March 2025 at 15:05:23. The applicant filed her replying affidavit
on 31 March 2025, followed by heads of argument. The Court and respondents
confirmed receipt of these documents on the same date. Counsel for the applicant,
Mr Raymond, readily conceded that the application was brought on an extremely
urgent basis.
[6.] On 31 March 2025, a note was uploaded to Caselines by Ms Shani van
Niekerk, attorney for the Curator ad litem , drawing the Court’s attention to
correspondence uploaded under Section 000, Item 9.
[7.] The correspondence raised several material concerns, summarised below:
That both parties' affidavits were reviewed by instruction of the Curator ad litem
on 31 March 2025;
That the applicant failed to disclose that:
7.1 A Curator ad litem had been appointed to represent the minor
children;
7.2 A legal representative had also been appointed for the children;
7.3 A forensic psychologist had conducted an investigation and testified
in prior proceedings;
7.4 That the application was not served on the Curator ad litem, the
children’s legal representative, or the applicant’s previous legal
team;
7.5 That the relief sought —particularly the partial rescission of the
settlement agreement —would arguably revive the duties of the
Curator ad litem, thus giving him a direct and substantial interest in
the matter;
7.6 That the Curator ad litem, while not filing an affidavit or appearing at
this stage, expressly reserves the right to do so and requested all
relevant facts be brought to the Court's attention;
7.7 That the correspondence was duly uploaded for the benefit of the
presiding Judge hearing the matter on 1 April 2025 (my own
emphasis) .
APPLICANT CONTENTIONS
[8.] The applicant contends that she had no option but to approach this Court
on an urgent basis and pray the Court to accept the urgency, for the reasons
provided in her founding papers . Should the Court not grant the urgent relief, the
harm to her and the children would be irreparable. The respondent will have the
opportunity during a trial to convince the Court of the financial position and she will
likewise have the opportunity to evaluate the real financial position and negotiate a
fair settlement with the true facts, and not without the fraudulently withheld
information.
RESPONDENTS’ OPPOSITION
[9.] The respondent, in turn, raised several preliminary objections including lack of
urgency, non -joinder, and procedural irregularity. He also dispute the existence of
any fraudulent conduct and maintain that the applicant has not met the requirements
for rescission under the common law.
LEGAL PRINCIPLES APPLICABLE TO URGENCY
[10.] Before entertaining the merits of any urgent application, a court must be
satisfied that the matter is indeed urgent and warrants deviation from the normal
rules of court. Where an applicant fails to establish that substantial redress is not
available in due course, the matter must be struck from the roll – SARS v Hawker
Air Services (Pty) Ltd 2006 (4) SA 292 (SCA).
[11.] Similarly, where urgency is self -created, a court is not obliged to afford the
matter priority – Lindeque and Others v Hirsch and Others (In Re: Prepaid24
(Pty) Limited) (2019/8846) [2019] ZAGPJHC 122.
[12.] In terms of Rule 6(12), an applicant is permitted to set abridged timeframes,
provided the urgency is genuine and not manufactured. Failure to convince the court
of the rationality of the truncated timelines will result in the matter being struck from
the roll, often with costs.
[13.] The test for urgency, as articulated in East Rock Trading 7 (Pty) Ltd v Eagle
Valley Granite (Pty) Ltd and Others (2011) ZAGPJHC 196 , is whether the
applicant will be afforded substantial redress in due course if the application is not
heard immediately. A mere desire to have the matter heard quickly does not suffice.
APPLICATION OF THE LAW TO FACTS
[14] Having carefully considered the affidavits, oral submissions and case law
cited, I am not satisfied that the applicant has met the burden of proving that this
matter ought to be heard as one of urgency.
In particular:
1. The applicant submits that the harm to her and the parties minor children will
be irreparable if urgent relief is not granted. However:
(a) She does not detail what this irreparable harm entails (e.g., threats to
safety, eviction without recourse, psychological harm to children).
(b) The alleged harm is mostly financial and procedural in nature, which
typically can be addressed through ordinary legal remedies ,
including contempt or variation proceedings.
2.
The applicant argues that rescinding the settlement will give both parties the
opportunity to assess the real financial position. However:
(a) This goes to the merits of the rescission —not urgency.
(b) Courts are generally reluctant to grant urgent rescission unless
immediate consequences flow that cannot be reversed later (e.g.,
imminent sale of property, immediate dispossession).
3.
(a) The settlement was made an order of court in February 2025, and she
only approached the court in late March/April 2025.
(b) There is no detailed timeline explaining when she discovered the
alleged fraud and why she waited to act.
(c) Delay without justification undermines any claim of urgency ( see
Lindeque v Hirsch case above ).
4.
(a) She failed to join the curator ad litem and others with a direct interest.
(b) Courts consider this seriously, especially in matters involving children,
which undermines both urgency and procedural fairness.
[15] Given my finding that the matter lacks urgency, it is unnecessary to make a
determination on the merits at this stage.
ORDER
[16] In the result, the following order is made:
(a) The application is struck from the roll for lack of urgency with costs ;
N NDLOKOVANE AJ
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
APPEARANCES
For the Applicant: S. Bester
For the Respondents: AM Raymond
Heard on: 01 April 2025
Date of judgment: 16 May 2025