The Facts: Dance Dreams and Relocation Dispute
In the recent Western Cape High Court case of C.H v L.H (32/2025) [2025] ZAWCHC 11 (23 January 2025), Judge Pangarker was tasked with resolving an urgent application brought by a mother seeking to relocate her 14-year-old daughter from Hermanus to Cape Town and to substantially increase the father’s maintenance obligations in the process.
The parties, divorced since April 2021, are the biological parents of a minor daughter referred to as “J” in the judgment. The divorce incorporated a Consent Paper and Parenting Plan with an Annexure “X” detailing the procedure for resolving disputes related to parental responsibilities. The father resided in Val de Vie Estate, Paarl, while the mother and daughter lived in Hemel en Aarde, Hermanus, where J attended C.H High School.
At the heart of the dispute was the child’s exceptional dance talent. The mother contended that J had represented South Africa at the 2024 Dance Star Competition in Croatia, but claimed that J’s current dance school in Hermanus no longer provided a suitable platform for her skills. The applicant sought to enroll J at R House in Green Point and have her attend K Dance University in Edgemead, arguing these institutions would provide international exposure essential for the child’s dance aspirations.
The mother approached the court on an urgent basis during the recess period seeking several orders: condonation for non-compliance with court rules regarding time periods; a substantial increase in monthly maintenance from R7,000 to R51,300; an order directing the father to consent to J’s enrollment at R House; and an interim interdict pending finalization of maintenance proceedings.
The father opposed the application vigorously, contending the matter lacked genuine urgency and was merely an attempt to circumvent the Maintenance Court process. He further alleged the mother was motivated by a desire to relocate to Green Point to be closer to her partner, rather than acting primarily in the child’s best interests.
Central to the dispute was a significant discrepancy in timelines. While the mother claimed the matter became urgent only in November 2024 when J auditioned for K Dance University, evidence revealed that as early as September 2024, J had already had a trial day at R House, and the mother had paid an application fee to the school in October 2024. These actions were taken without informing the father, despite the Parenting Plan requiring joint decision-making on schooling matters.
The court also learned that the parties had begun mediation with Michelle Joubert, a Family Mediator, but the mother unilaterally withdrew from this process on 27 December 2024, claiming mediation had failed. However, the evidence suggested the mediation process was ongoing, with the mediator planning to reconvene after obtaining financial information from both parties and conducting a voice of the child assessment in mid-January 2025.
The case highlighted the tension between a gifted child’s special educational needs and the legal requirements for joint decision-making between divorced parents, all against the backdrop of the paramount consideration of the child’s best interests as mandated by the Children’s Act 38 of 2005.
Self-Created Urgency: The Court’s Assessment of Timeline Discrepancies
Judge Pangarker’s analysis of urgency forms a critical part of the judgment, ultimately leading to the application being struck from the urgent roll. The court meticulously examined the mother’s timeline and found significant omissions that undermined her claim of genuine urgency.
The court was particularly troubled by the mother’s selective disclosure of chronological events. While her founding affidavit positioned November 2024 (when J auditioned at K Dance) as the starting point for urgency, evidence revealed she had taken concrete steps toward relocation months earlier. The Judge noted, “The applicant did not play open cards with the Court in respect of the timeline which she said rendered her application urgent.”
A crucial email from September 2024 showed the mother writing to R House’s headmistress stating: “I have to provide J’s father enough reasons for him to pay for 2025 fees so if at all possible – can you secure a 2026 scholarship for J?” This communication contradicted her narrative that R House was selected only after the November dance audition.
The court was further dismayed by the mother’s failure to mention her October 2024 payment of R550 as an application fee to R House, despite attaching the relevant bank statement to her affidavit for other purposes. These omissions led Judge Pangarker to conclude the mother “had already taken steps 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.”
Regarding the mother’s claim that mediation had failed, the court found this to be “anything but correct.” The evidence showed the mediator had prepared a comprehensive report addressing the parties’ concerns and had requested financial information by 20 January 2025, with plans to conduct a voice of the child assessment. Rather than mediation failing, it appeared the mother “decided to withdraw from the process of her own volition” when dissatisfied with its direction.
The court applied the principles from Commissioner for the South African Revenue Service v Hawker Air Services (Pty) Ltd [2006] SCA 55, which establishes that where urgency is self-created, the appropriate order is to strike the application from the roll. Judge Pangarker found nothing had prevented the mother from approaching the court in September or October 2024, yet she waited over three months before filing during the January recess period on truncated timelines.
The judgment also addressed the requirements of Rule 6(12)(b) regarding whether substantial redress could be afforded in due course. The court found the mother had failed to explicitly set out why she could not be afforded a hearing in the ordinary course, emphasising there was “no justifiable reason why she could not have approached the Maintenance Court months ago” once she decided upon the relocation and R House enrollment.
The mother’s conduct was further scrutinized under Section 31(2)(a) of the Children’s Act, which requires co-holders of parental responsibilities to give due consideration to each other’s views before making significant decisions affecting a child’s education or living conditions. The court found the mother had “unilaterally decided in September/October 2024, and without notice to and engagement with the respondent” that J would relocate and change schools.
Best Interests of the Child: The Court’s Order for Professional Assessment
Despite striking the application from the urgent roll, Judge Pangarker remained mindful of the High Court’s role as upper guardian of minor children. The judgment reflects a careful balancing act between addressing the procedural deficiencies of the mother’s application and ensuring the child’s best interests remained protected.
The court recognised that J was clearly a talented dancer who had represented South Africa internationally. However, Judge Pangarker was concerned that major decisions about her schooling and relocation were being made without proper assessment of how these changes would affect her overall wellbeing. The judge noted that simply relying on “the mother’s view and the child’s desire to join K and R House, without first assessing the child’s best interests” would be premature.
This concern led to the second component of the court’s order: directing 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.” The court further instructed the parties to adhere to their agreement in the Parenting Plan regarding dispute resolution, and ordered that if they couldn’t agree on costs for the expert assessment, such costs would be shared equally.
The judgment carefully examined the implications of Section 10 read with Section 31 of the Children’s Act, which emphasises the importance of considering a child’s views while balancing this against their age, maturity, and stage of development. The court also highlighted Section 31(1)(b)(iv) which requires special consideration for decisions “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.”
Judge Pangarker expressed particular concern about several aspects of the proposed changes: the timing and rush to change schools; the drastic increase in school fees; the lack of firm arrangements regarding accommodation; the impact of relocating a child in Grade 9; and whether dance as an academic subject would benefit J’s international tertiary education prospects. The court noted that the mediator had correctly indicated that these matters required careful assessment rather than hasty decisions.
While acknowledging the mother’s argument that without immediate relocation J would “be robbed of an opportunity to progress and fulfil her potential,” the court took a more measured approach. Judge Pangarker observed that whether “enrolling J at R House, removing her in Grade 9, leaving C Hermanus, leaving behind all the friends and familiar surroundings/community and current dance school, would be in J’s best interests, must still be assessed by a professional expert.”
The judgment reflects the court’s hope that “the doors are still open for this teenager to exhibit her dance talent” despite the application being struck from the roll. This balanced approach demonstrates the court’s commitment to protecting the child’s interests while upholding proper legal procedure and parental rights.
By ordering a professional assessment rather than simply dismissing the application outright, the court ensured that J’s dance aspirations were not summarily dismissed, while also establishing that major life decisions would be evaluated through the lens of her comprehensive best interests rather than a singular focus on dance opportunities.
Costs Implications: Punitive Orders for Non-Disclosure
The court’s decision to award costs on an attorney and client scale against the applicant represents one of the most consequential aspects of the judgment. Judge Pangarker provided detailed reasoning for this punitive costs order, which goes beyond the ordinary costs that would typically follow in civil proceedings.
The judgment identified several factors that justified the exceptional costs order. Primary among these was the mother’s failure to disclose pertinent information about the timeline of events. As Judge Pangarker stated, “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.” This lack of transparency was viewed as particularly problematic in urgent proceedings where the court must rely on the applicant’s candor.
The court was especially troubled by the mother’s selective disclosure of information. For instance, she attached bank statements that showed a payment to R House in October 2024 but failed to mention this payment when setting out her timeline of events. Similarly, she failed to disclose that the respondent had promptly replied to her email of 28 November 2024 the very next day, instead suggesting he had only responded on 6 December. These omissions significantly impacted the court’s assessment of the applicant’s bona fides.
Judge Pangarker rejected the argument that costs should not be awarded because the mother had approached the court in the child’s best interests. The court held that this principle could not shield a litigant who had failed to make full disclosure of material facts. The judgment states: “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.”
The costs order serves both punitive and deterrent functions. It signifies the court’s disapproval of the mother’s conduct while also sending a message to future litigants about the importance of full disclosure in urgent applications, particularly those involving children’s interests. The judgment makes clear that parents cannot circumvent proper legal processes or their co-parent’s rights simply by invoking a child’s best interests without substantiating how those interests have been properly assessed.
This aspect of the judgment reinforces the principle that the best interests of the child standard is not a license for unilateral decision-making or procedural shortcuts. Rather, it requires careful consideration, proper process, and good faith engagement between co-parents, with the courts serving as final arbiters only when these measures have been genuinely exhausted.
The punitive costs order also reflects the court’s view that the applicant’s conduct constituted an abuse of process. By approaching the court on an urgent basis during the recess period when the urgency was self-created, the mother had unnecessarily consumed judicial resources and forced the respondent to incur significant legal expenses during a holiday period when legal representation is typically more costly and difficult to secure.
Questions and Answers
What was the nature of the application brought before the Western Cape High Court in the C.H v L.H case? The application was brought by a mother seeking urgent relief during the court recess period for several orders: condonation for non-compliance with court rules regarding time periods; a substantial increase in monthly maintenance from R7,000 to R51,300; an order directing the father to consent to their daughter’s enrollment at R House in Green Point; and an interim interdict pending finalization of maintenance proceedings in the Maintenance Court.
On what grounds did the court strike the application from the urgent roll? The court struck the application from the urgent roll on the grounds of self-created urgency. Judge Pangarker found that the mother had taken steps toward relocating the child and changing schools as early as September 2024 but only approached the court in January 2025, a few days before the new school year was to commence. The court held that there was no justifiable reason why she could not have approached the court sooner or the Maintenance Court for a variation of the maintenance order.
How did the court apply Section 31 of the Children’s Act in this case? The court found that the mother had contravened Section 31(2)(a) of the Children’s Act, which requires a co-holder of parental responsibilities and rights to give due consideration to the views and wishes of any other co-holder before making decisions that would significantly change the child’s education or living conditions. The mother had unilaterally decided in September/October 2024 that the child would relocate to Cape Town and change schools, without informing or consulting the father until November 2024.
What evidence did the court rely on to determine that the urgency was self-created? The court relied on documentary evidence including an email from September 2024 showing the child had already had a trial day at R House, a bank statement revealing a payment to R House in October 2024, and correspondence with the school headmistress where the mother sought a future scholarship for the child. These actions occurred well before the November dance audition that the mother presented as the catalyst for urgency.
What role did mediation play in the court’s decision? The court found that the mother’s claim that mediation had failed was incorrect. Evidence showed the mediator had prepared a comprehensive report, identified concerns requiring further investigation, and planned to reconvene after receiving financial information and conducting a voice of the child assessment. The mother’s unilateral withdrawal from this ongoing process on 27 December 2024 was viewed negatively by the court and contributed to the finding of self-created urgency.
Why did the court order a professional assessment of the child’s best interests? Despite striking the application from the roll, the court ordered a professional assessment of the child’s best interests recognizing its role as upper guardian of minor children. The court was concerned that decisions about the child’s relocation and schooling were being made without properly evaluating how these changes would affect her overall wellbeing, and that simply relying on the mother’s view and the child’s desire to change schools would be premature.
What factors did the court suggest should be considered in assessing the child’s best interests? The court identified several factors requiring assessment: the timing and rush to change schools; the drastic increase in school fees; the lack of firm arrangements for accommodation; the impact of relocating a child in Grade 9; whether dance as an academic subject would benefit international tertiary education prospects; and how removing the child from familiar surroundings, friends, and community would affect her wellbeing.
On what basis did the court award costs on an attorney and client scale? The court awarded punitive costs based on the mother’s failure to disclose material facts and timelines relevant to urgency, her contradictory statements, her failure to act in terms of Section 31(2)(a) of the Children’s Act, and her delay in approaching the court. The judge specifically rejected the argument that costs should not be awarded because the mother had approached the court in the child’s best interests.
What legal precedent did the court rely on regarding the striking of urgent applications? The court relied on Commissioner for the South African Revenue Service v Hawker Air Services (Pty) Ltd [2006] SCA 55, which establishes that where urgency is self-created, the appropriate order is to strike the application from the roll. This allows the applicant to set the matter down again with proper notice and compliance with court rules.
How did the court interpret Rule 6(12)(b) of the Uniform Rules of Court? The court interpreted Rule 6(12)(b) as requiring an applicant to demonstrate not only urgency but also that they could not be afforded substantial redress in due course. Judge Pangarker found the mother had failed to explicitly set out why she could not be afforded a hearing in the ordinary course, especially considering she had months to approach either the High Court or the Maintenance Court.
What did the court say about the mother’s maintenance claim of R51,300 per month? While the court did not express a view on the merits of the increased maintenance claim due to striking the application from the roll, it noted the significant jump from the current R7,000 payment. The judgment questioned how the amount was calculated and identified concerns about including accommodation costs that would benefit both mother and child rather than the child alone, as well as inconsistencies in the claimed dance fees.
What was the status of the Parenting Plan in this case and how did it factor into the court’s decision? The Parenting Plan, incorporated in the Final Decree of Divorce granted on 30 April 2021, included an Annexure “X” containing procedures for resolving disputes related to parental rights, responsibilities, care and contact. The court ordered the parties to adhere to this agreement, particularly regarding the appointment of an expert to assess the child’s best interests. The court found the mother had not followed the agreed dispute resolution mechanisms.
How did the court view the mother’s withdrawal from the mediation process? The court viewed the mother’s withdrawal negatively, finding that she decided to withdraw “of her own volition” when she did not like the way the mediation was proceeding. The judge noted that the mediator had not concluded or abandoned the process but had planned further steps including financial disclosure and a voice of the child assessment, contradicting the mother’s claim that mediation had failed.
What significance did the court place on the child’s exceptional dancing talent? While acknowledging the child’s talent and international achievements, the court emphasized that decisions about her education and living arrangements should not be based solely on her dancing abilities. The judgment reflected concern that a singular focus on dance opportunities might overshadow consideration of other aspects of the child’s wellbeing, including stability, social connections, and educational continuity.
What did the court say about the appropriate forum for variation of maintenance? The court noted that paragraph 3.5 of the Consent Paper incorporated in the Final Decree of Divorce made provision for either party to approach the Maintenance Court for a review of maintenance. The judgment suggested the mother should have followed this procedure rather than seeking what the court described as “relief akin to a Rule 43 order” through an urgent High Court application, especially given that the parties were already divorced.
Written by Bertus Preller, a Family Law and Divorce Law attorney and Mediator at Maurice Phillips Wisenberg in Cape Town and founder of DivorceOnline and iANC. A blog, managed by SplashLaw, for more information on Family Law read more here.
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