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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
FREE STATE DIVISION, BLOEMFONTEIN
Not reportable
Case no: 2200/2025
In the matter between
G[…] K[…] M[… ] APPLICANT
And
T[… ] C[…] M[… ] RESPONDENT
Neutral citation: M[… ] v M[… ] (2200/2025) [2026] ZAFSHC 236 (10 April 2026)
Coram: MOLITSOANE J
Heard: 23 February 2026
Delivered: 10 April 2026
Summary: Urgency – principles restated – whether the applicant has made out a
case for the variation of the interim order.
ORDER
1 The application is dismissed.
2 The Family Advocate is ordered to furnish the parties with a report concerning
the investigation conducted herein within 60 days of the service of this order.
3 Should the investigation not be complete, then in that case, the Family
Advocate is ordered to an furnish the parties with an interim report within 60 days of the
service of this order.
4 There is no order as to costs.
5 The Registrar of this court is ordered to forward this order to the Family
Advocate and file proof of service in the court file.
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JUDGMENT
Molitsoane J
[1] This application is but one of a series of applications brought by the applicant
against the respondent concerning a baby, now ten months old. I feel constrained to
quote the words of my brother Daffue J on 30 May 2025 in one of the applications
between these parties about this infant. I hope the parties will deeply ponder what was
said on that day in the best interests of this child. Daffue J said:
‘We have seen too often that fights between parents have a negative influence on the children,
and I often wonder how children can readily become good adults when their parents fight like
cats and dogs.
The problem is, maybe in this case he is still small so he may not know what is going on, but we
never know what the position is, bearing in mind emotional conflict, et cetera.’
[2] No less than six judges in this Division have been involved in this case. When
the interim order was granted in this case on 30 May 2025, the child was just over a
month old. When this application was heard, the child had just turned ten months old.
This application, like all other previous applications brought by the applicant, were
instituted on an urgent basis.
[3] The issues for determination in this application are the following:
(a) whether the applicant has passed the threshold for urgency; and
(b) whether the applicant is entitled to the order to vary the interim order granted on 30
May 2025.
[4] Uniform rule 6(12)(b) requires the applicant to set out explicitly in an affidavit the
reasons why the circumstances of his or her case render the case urgent and why he or
she believes that he or she cannot be afforded substantial redress at a hearing in due
course. In Luna Meubel Vervaardigers v Makin and Another
1 the court held that
‘[p]ractitioners should carefully analyze the facts of each case to determine, for the purposes of
1 Luna Meubel Vervaardigers v Makin and Another 1977 (4) SA 135 (WLD) at 137E-F.
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setting the case down for hearing, whether a greater or lesser degree of relaxation of the rules
and of the ordinary practice of the court is required. The degree of relaxation should not be
greater than the exigency of the case demands. It must be commensurate therewith. Mere lip
service to the requirements of rule 6(12)(b) will not do and an applicant must make out a case in
the founding affidavit to justify the extent of the departure from the norm, which is involved in the
time and day for which the matter be set down.’
[5] In order for this C ourt to deal with the case of a litigant on an urgent basis, the
court will have regard to the prejudice the applicant will suffer if the hearing of the case
was delayed. The court will also have regard to the prejudice the respondent might
suffer if the timelines prescribed by the rules are not abridged. A litigant who brings an
application on an urgent basis essentially skips the queue and allows his or her case to
be heard first before the other matters which have already been set down on the roll .
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This may cause prejudice to the other applicants as the case in an urgent application is
given preference. This means that an application which is brought on an urgent basis
begets preferential and differential treatment.
[6] The court in IL& Marcow Caterers (Pty) Ltd v Greatermans SA Ltd and Another3
held as follows:
‘The reason for this differential treatment is that the courts are there to serve the public and this
service is likely to be seriously disrupted if considerations such as those advanced by the
applicants in these two matters were allowed to dictate the priority they should receive on the
roll. It is, in the nature of things, impossible for all matters to be dealt with as soon as they arrive
for hearing. Considerations of fairness require litigants to wait their turn for the hearing of their
matters. To interpose at the top of the queue a matter which does not warrant such treatment
matters. To interpose at the top of the queue a matter which does not warrant such treatment
automatically results in an additional delay in the hearing of others awaiting their turn, which is
both prejudicial and unfair to them. The loss that applicants might suffer by not being afforded
an immediate hearing is not the kind of loss that justifies the disruption of the roll and the
resultant prejudice against other members of the litigating public. Finally, there is the question of
prejudice to respondents. The respondents were required to prepare their answering affidavits
and obtain the service of counsel for the hearing in great haste.’
2 IL & Marcow Caterers (Pty)Ltd v Greatermans SA Ltd and Another 1981 (4) SA 108 (C) at 113H-114B.
3 Ibid.
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[7] This application was brought on an extremely urgent basis. It appears that it
was issued and served on a Friday, 20 February 2026, in the afternoon. The respondent
was afforded time to file both a notice to oppose and an answering affidavit at the same
time on Monday 23 February 2026 at 10h00. The application was enrolled for hearing a
mere two hours thereafter. Minutes before the hearing, the respondent filed what
purported to be an answering affidavit. This document which was handed to the court
and the applicant in court at the commencement of the proceedings, in answer to the
founding affidavit , was not commissioned. The applicant, after he was given time to
peruse it, elected not to reply to it , as he was entitled to and he also made no reference
to it in his submissions . I will also not have any regard to a document which purports to
be an affidavit, but is not.
[8] It is my considered view that the applicant is not entitled to bring this matter on
truncated timelines as indicated above. His conduct did not only prejudice the
respondent but unnecessarily prejudiced other litigants whose matters were already on
the roll. The applicant cannot be allowed, at every turn, to bring an urgent application in
circumstances where he already has an order in place, as will be demonstrated later in
this judgment. On the issue of urgency, the applicant has dismally failed to make out a
case why he should be allowed to skip the queue. In his affidavit , he mentions the
following as factors which he asserts must be taken into account in order to decide the
question of urgency: ‘ ongoing unilateral schooling crèche decision making and
threatened changes without joint consent ; disrupting the m inors’ routine; immunization
disruption; breakdown of joint decision making and co -parenting communication:
erosion of the minor’s bond with the applicant.’ What the applicant has listed are
conclusions as opposed to facts themselves which would enable the court to decide the
conclusions as opposed to facts themselves which would enable the court to decide the
question of urgency. He has failed to explicitly set out the reasons for seeking to skip
the queue and why he will not obtain redress in a later hearing.
[9] It would seem on the version of the applicant that the parties had been staying
together from November 2025 to 31 January 2026. He averred that the respondent
took decisions concerning the child on her own without involving him, and he termed
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this conduct the ‘unilateralism’ of the respondent. He has also not indicated to the court
when the so -called ‘unilateralism’ by the respondent took place. He only says that he
was informed by a crèche manager that the respondent had taken steps inconsistent
with the arrangements he had with her. He does not tell the court when he met the
crèche manager . Importantly what was conveyed to him by the crèche manager
constitutes inadmissible hearsay and cannot be considered as the crèche manager did
not file a confirmatory affidavit.
[10] Even if it could be s aid that the applicant had to bring this matter on an urgent
basis, he still had to make out a case as to why the respondent should be allowed to
serve her opposing papers by 10h00 and be at court at 12h00 on the same day , having
regard to the relief he seeks . I accept that he has the right to set his timelines but same
cannot be so unfair to the respondent to the extent of being prejudicial to her in
opposition of the case brought against her. The court in Harvey v Niland and Others 4
recognized that the applicant had a right to determine the time and date in urgent
applications, but that notwithstanding, the court also sounded a warning that in doing so
‘the applicant must give proper consideration to those time periods.’ The applicant did
not give any consideration to the time limits he set for the applicant.
[11] The application was not served by the sheriff contrary to Uniform rule 4. The
applicant also did not file any service affidavit ; there is no evidence as to when the
application was received by the respondent. It does , however, appear that she received
the application as she purported to file a notice to oppose, and what she called an
answering affidavit. There is no reason why this application was not brought on a semi -
urgent basis if one has regard to the relief sought . I am of the considered view that the
applicant has failed to pass the threshold of urgency. On this point alone, the application
applicant has failed to pass the threshold of urgency. On this point alone, the application
stands to be struck of the roll.
[12] The applicant seeks what he labels a ‘substantive interim relief pending the
family advocate report.’ Most of the paragraphs of the relief he seeks were granted by
4 Harvey v Niland and Others [2015] ZAECGHC 149; 2016 (2) SA 436 (ECG) para 19
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this Court on 30 May 2025. Where such was not granted, the evidence reveal that the
applicant has not made out a case for the abridgment of the time periods as stated in
the notice of motion or he is simply not entitled to the relief sought. It is necessary to set
out the substantive relief sought by the applicant in full.
[13] He seeks the following relief:
‘Pending finalization of the famil y advocate investigation and report in case number 2200/2025,
an interim parenting regime is ordered as follows:
Schooling /creche stability
The minor child shall continue attending the current creche/ school a ttended prior to the respondent’s
unilateral removal and/or shall be reinstated there to within 24 hours of this order, pending f urther
agreement or the famil y advocate recommendation and no change to the child’s schooling /crèche shall
occur without the prior written consent of both parents.
Joint the decision making.
The party shall exercise joint decision making in respect of all major decisions concerning the minor child,
including but not limited to schooling/creche, medical treatment, immunizations, travel, and caregivers.
Medical or immunization
The party shall, within 48 hours, confirm the minor child’s immunization status and coordinate attendance
at the next immunization appointment. The applicants securing off an alternative appointment date shall
be shared forthwith.
Contact and care (restorative overnights)
The applicant shall have contact and care with the minor child as follows:
Weekly overnight on Tuesdays and Thursdays (Collection from creche at close of day return to creche
the following morning).
Alternate weekends from Friday after creche collection until Monday morning drop off at creche.
In weeks where creche is closed, a party shall agree reasonable equivalent Schedule, failing which the
applicant shall collect at 16:00 on their relevant day (s) and return by 08:00 the following morning(s).
Daily video contact.
Daily video contact.
The applicant shall have a daily video call with the minor child between 19h 00 and 19 h30 (or such
reasonable time as the child’s routine requires) and the respondent shall facilitate same.
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Neutral exchanges and third – party collection.
All collections and drop - offs shall occur at a neutral location the (creche/ School, or another neutral
public place agreed in writing).
No third party shall collect or drop off the minor child without the prior written consent of both parents,
consistent with the creche undertaking and the parties’ prior agreement.
Travel restriction
The respondent shall not remove or permit removal of the minor child from the M angaung area w ithout
the prior written consent of the applicant or an order of court.
Parenting coordinator and co- parenting support.
A parenting coordinator shall be appointed within 7 days to be recommended by the office of the family
advocate (or failing which to be appointed by this court on supplemented papers).
Their parties are directed to attend co- parenting counselling / classes as recommended by the familiar
advocate or parenting coordinator, within a reasonable timeframe.
Financial disclosure and contributions.
The parties shall exchange financial disclosures relevant to the minor child’s monthly needs within 7 days.
The respondent shall within 7 days, provide written confirmation of her monthly contribution towards the
minor child’s expenses, including schooling / creche and essential items, and the parties shall agree a
written schedule of responsibilities.
Weekly week schedule.
The respondent shall, by no later than each Sunday 18h 00, provide her w eekly work schedule for the
coming week to enable planning of logistics and caregiving.
Noninterference
Grandparents and extended family members are interdicted from disrupting or interfering in the discharge
of the parties’ parental responsibilities and rights, and from obstructing exchanges, communication, and
the child’s stability.
Judicial reprimand / compliance
The court records its disapproval of unilateral major decisions affecting the minor child pending the family
advocate process and directs strict compliance with this order and the existing interim order (Annexure
“J”)’
[14] I turn to the issues of:
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(a) contact and care (restorative overnights).
(b) daily video contact.
(c) neutral exchanges and third-party collection.
(d) non-interference.
The interim order granted on 30 May 2025 already caters for these. The interim order
was again confirmed by this Court on 24 July 2025. To come again before court seeking
the same relief which was granted by this court amounts to abuse of the process.
[15] The applicant further seeks what he terms ‘ travel restriction ’. It appears that
what is meant here is that the respondent shall not remove or permit removal of the
minor from the Mangaung area without the prior written consent of the applicant or an
order of the court. This order was also granted by this Court on 30 May 2025. This is
another factor which points to the abuse of the court processes.
[16] The applicant further seeks what he call s ‘parenting coordinator and co-
parenting support as well as financial disclosure’ . It is trite law that an applicant must
make out his case in the founding affidavit. The applicant cannot simply list several
instances in which he seeks relief. He must set out in detail in his affidavit why relief
must be granted. This court is not seized with the case of maintenance. It appears to
me, although this is not set out in detail as such that the case before me is about an
interdict and not maintenance. While parenting may implicate maintenance, this is not
the forum to seek such relief. On the issue of parenting, this Court has already ordered
that the Family Advocate must investigate and compile a report. It is unnecessary to
grant this order.
[17] On the issue of medical or immunization of the child, no case has been made in
the papers for the relief sought. On his version, it appears that the clinic c ard was with
the applicant. There is no reason why he cannot simply go to the clinic and ascertain
what he seeks. Because the clinic card was with him, he was able to not ice that the
what he seeks. Because the clinic card was with him, he was able to not ice that the
minor child missed a scheduled immunization. It was up to him then to arrange to go to
the clinic as he has already done , as per her papers. He does not need t he respondent
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to confirm the immunization status and to coordinate attendance he s o desires. In terms
of the order of 25 May 2025, the ‘ applicant is a llowed all relevant medical information,
reports and access to information including regular updates of the minor child’s physical
well-being subject to the best interests of the minor child. ’ Having parental rights and
responsibilities does not entitle the applicant to be consulted at every turn about all
decisions concerning the child. What he seeks was covered in the order of 30 May.
[18] This is one case where a cost order would have been warranted on punitive
scale against the applicant , based on abuse of the court processes. It must be born in
mind that the award of costs lies in the court’s discretion. While the respondent
purported to oppose the application, there was no proper answering affidavit before me.
I dealt with this case like it was not opposed. I would therefore not make any cost order
in this matter.
[19] The fact that the investigation by the Family Advocate has been outstanding for
almost a year, is a cause for concern. That delay in finalization of the investigation has
led the applicant to bring an application of this nature. It would be in the interest s of the
children that the parties be apprised by the F amily Advocate as to the status of the
investigations and I will accordingly make an appropriate order to that effect.
[20] I order as follows:
1 The application is dismissed.
2 The Family Advocate is ordered to furnish the parties with a report concerning
the investigation conducted herein within 60 days of the service of this order.
3 Should the investigation not be complete, then in that case, the Family
Advocate is ordered to furnish the parties with an interim report within 60 days of the
service of this order.
4 There is no order as to costs.
5 The Registrar of this court is ordered to forward this order to the Family
Advocate and file proof of service in the court file.
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P E MOLITSOANE
JUDGE OF THE HIGH COURT
Appearances
For the plaintiff: In person
G[...] K[...] M[...]
2[…] G[…] Street
A[…] E[…] P[…] [… ]
Office address: 7 Ella Street
Willows
Bloemfontein
Email address: gm[… ]@gmail.com
For the defendant: In person
T[…] C[… ] M[…]
2[…] G[…] H[…] S[…]
Wilgehof
Bloemfontein
Email address: t[…] @gmail.com