Factual Background: A Tale of Procedural Non-Compliance in Family Law Proceedings
The factual matrix in N.S v A.D presents a striking illustration of how procedural non-compliance can derail even the most substantive family law disputes. The case arose from what appears to be a contentious matter involving parental responsibilities and rights, with the applicant seeking to terminate the respondent’s parental responsibilities and rights in respect of their daughter, Athena.
The procedural difficulties began when the respondent delivered a replying affidavit in her counter-application on 10 February 2025, some six months out of time and a mere nine court days before the allocated hearing date of 24 February 2025. This delay was compounded by the respondent’s failure to seek proper leave to extend the prescribed time periods in accordance with Rule 27 of the Uniform Rules of Court.
The respondent’s approach to addressing her procedural shortcomings proved equally problematic. Rather than filing a substantive application for condonation with proper supporting papers, she delivered a notice of motion together with her replying affidavit seeking to supplement previous affidavits, obtain condonation for late filing, and strike out annexures to the applicant’s previously filed affidavits. This notice of motion was filed without the supporting affidavit required by Rules 6(15) and 27, rendering it procedurally defective.
Perhaps most significantly, the respondent’s replying affidavit contained a prayer for relief that differed materially from that sought in her original counter-application notice dated 12 June 2023. The replying affidavit sought dismissal of the applicant’s application with attorney-client costs, appointment of a forensic psychologist to investigate alleged parental alienation, and costs of her counter-application. This amounted to an unauthorised amendment of pleadings without compliance with Rule 28.
When the applicant served notice under Rule 30(2)(b) and Rule 30A on 12 February 2025, affording the respondent ten days to remedy these irregularities, she refused to do so. This intransigence ultimately compelled the applicant to launch the interlocutory application that came before Lange AJ on 22 May 2025. The respondent’s stance throughout was that no irregularity existed and therefore nothing required correction—a position that proved untenable when scrutinised against the applicable procedural requirements.
Legal Analysis: The Application of Rule 30A and the Court’s Approach to Procedural Irregularities
Lange AJ’s judgment provides valuable insight into the proper application of Rule 30A of the Uniform Rules of Court and the judicial approach to procedural non-compliance. The court emphasised that the determination of whether non-compliance has occurred is not a matter of judicial discretion but an objective question of law or fact, relying on the Constitutional Court’s authoritative pronouncement in Helen Suzman Foundation v Judicial Service Commission 2018 (4) SA 1 (CC). The Helen Suzman Foundation case established that courts have no discretion regarding the antecedent question of whether non-compliance has actually occurred.
However, the court recognised that Rule 30A cannot be read in isolation and must be considered alongside Rule 30(3), which grants courts wide powers once irregularity or impropriety is established. Drawing from Afrocentrics Projects and Services (Pty) Ltd t/a Innovative Distribution v State Information Technology Agency 2023 (4) BCLR 361 (CC), Lange AJ noted that the rule contemplates a two-stage process: first, the court must satisfy itself that the proceeding or step is irregular or improper, and second, if so satisfied, it may exercise wide powers including setting aside proceedings, granting leave to amend, or making any order it deems fit.
The court stressed that the Uniform Rules regulate procedural rather than substantive matters, and any grievance under Rule 30 must relate to alleged procedural irregularities in litigation conduct. Where irregularity is found, courts possess broad remedial powers, including affording parties opportunities to cure defects. However, the respondent’s steadfast refusal to acknowledge any irregularity precluded such remedial intervention.
A crucial aspect of the court’s analysis concerned the prejudice requirement inherent in Rule 30 applications. Citing Bloem and Another v NWK Limited [2024] ZANWHC 83 (20 March 2024), the court acknowledged that procedural steps may be irregular but need not be set aside if they cause no prejudice in the further conduct of proceedings. In this instance, while the late filing had already been addressed through the postponement application and associated costs order, the court found that allowing the applicant to file a supplementary affidavit would cure any remaining prejudice without compromising procedural fairness.
The judgment demonstrates judicial pragmatism in family law proceedings, where the court balanced strict procedural compliance against the substantive interests at stake, particularly the best interests of the minor child involved.
Practice Points: Lessons for Legal Practitioners on Court Rule Compliance and Costs Consequences
The judgment offers several important practice points for legal practitioners, particularly regarding professional conduct standards and costs consequences in procedural applications. The court’s consideration of the applicant’s application for a de bonis propriis costs order against the respondent’s attorney provides instructive guidance on when such drastic measures may be warranted.
Lange AJ extensively analysed the legal principles governing personal costs orders against attorneys, drawing from Multi-Links Telecommunications Ltd v Africa Prepaid Services Nigeria Ltd 2014(3) SA 265 (GP). The Multi-Links case established that while legal representatives commonly make procedural errors, personal costs orders are reserved for conduct that “substantially and materially deviates from the standard expected of legal practitioners.” Such conduct includes dishonesty, obstruction of justice, irresponsible and grossly negligent conduct, reckless litigation, misleading the court, and gross incompetence.
Despite the applicant’s comprehensive arguments highlighting various procedural failures, the court declined to grant the de bonis propriis order against Mr Armstrong. The court found that while his conduct was problematic, it did not reach the threshold established in the Multi-Links case. However, the court did not entirely absolve the attorney of financial consequences, ordering him to bear the costs of counsel’s fees for opposing the interlocutory application while acting pro amico for his client.
The judgment reveals concerning dynamics between opposing counsel, with Lange AJ observing that the respective legal representatives had “locked horns” and that their “personal animosity for one another appears to have coloured the manner in which this matter has been litigated.” This observation serves as a stark reminder that professional disputes should not compromise client interests or procedural compliance.
From a practical perspective, the court emphasised that family law matters do not provide licence to ignore procedural requirements. The notion that substantive issues involving children’s best interests excuse procedural non-compliance was firmly rejected. Legal practitioners cannot rely on the sensitive nature of family disputes to justify procedural shortcuts or non-compliance with court rules.
The case also highlights the importance of proactive communication between attorneys when procedural difficulties arise. The court noted that simple correspondence regarding anticipated delays or difficulties could have prevented much of the subsequent litigation, suggesting that professional courtesy and early engagement remain fundamental to proper case management.
Questions and Answers
What is the legal test for determining whether procedural non-compliance has occurred under Rule 30A?
The court must determine as an objective question of law or fact whether there has been non-compliance with the rules. This is not a matter of judicial discretion, as established in the Helen Suzman Foundation case, and the court has no discretion regarding this antecedent question.
What two-stage process does Rule 30(3) contemplate when dealing with irregular proceedings?
First, the court must satisfy itself that the proceeding or step is irregular or improper. Second, if so satisfied, the court has wide powers to set aside proceedings in whole or in part, grant leave to amend, or make any order it deems fit, as confirmed in the Afrocentrics case.
What is the relationship between Rules 30A and 30(3) in addressing procedural irregularities?
Rule 30A cannot be read in isolation and must be considered alongside Rule 30(3). While Rule 30A addresses the notice requirements and objective determination of non-compliance, Rule 30(3) provides the court’s remedial powers once irregularity is established.
When must a party seek leave to extend time periods under the Uniform Rules?
A party must seek leave through a substantive application on notice, together with a supporting affidavit providing a full and reasonable explanation for the delay, as required by Rule 27. This cannot be done informally or without proper procedural compliance.
What constitutes improper amendment of pleadings in motion proceedings?
Where a party seeks relief in a replying affidavit that differs materially from the relief claimed in the original notice of motion, this constitutes an unauthorised amendment that must comply with Rule 28’s requirements for amending pleadings or documents.
What are the requirements for filing a notice of motion under Rules 6(15) and 27?
A notice of motion must be accompanied by a supporting affidavit setting out the grounds for relief sought. The replying affidavit should be an annexure to the application rather than filed simultaneously with the notice of motion.
Does the court have discretion to refuse setting aside irregular proceedings even where irregularity is established?
Once a court finds a step to be irregular or improper under Rule 30(3), it is required to make an order. However, the court has wide discretion in determining the nature of that order, including whether to set aside, grant leave to amend, or make alternative orders.
What role does prejudice play in Rule 30 applications?
Even if a procedural step is irregular, there may be no need to set it aside if it presents no prejudice in the further conduct of the case to the complaining party, as recognised in the Bloem case. Prejudice can often be cured through alternative remedial measures.
When will courts grant de bonis propriis costs orders against legal practitioners?
Such orders are reserved for conduct that substantially and materially deviates from expected professional standards, including dishonesty, obstruction of justice, irresponsible and grossly negligent conduct, reckless litigation, or gross incompetence, as established in the Multi-Links case.
Do family law matters excuse non-compliance with procedural rules?
No. The sensitive nature of family law proceedings and considerations of children’s best interests do not provide licence to ignore court rules. Procedural compliance remains essential to avoid uncertainty and chaos in litigation.
What is the proper procedure for seeking condonation for late filing of court documents?
Condonation must be sought through a substantive application with proper supporting papers explaining the delay, rather than informally requesting condonation within the late-filed document itself or through defective notice of motion procedures.
Who has authority to grant leave for filing supplementary affidavits in motion proceedings?
Only the court may grant consent for filing supplementary affidavits under Rule 6(5)(e). Parties cannot grant such consent to each other, and practitioners cannot be penalised for relying on proper court procedures.
What constitutes the scope of grievances that may be raised under Rule 30?
Rule 30 grievances must relate to alleged procedural irregularities in litigation conduct rather than substantive pleading issues. The Uniform Rules regulate procedure, not the substance of pleadings.
How should legal practitioners handle anticipated procedural difficulties or delays?
Practitioners should engage in proactive communication with opposing counsel when difficulties arise, writing to advise of problems and proposed solutions rather than simply filing irregular documents at the last minute without prior notice or consultation.
What approach should courts take when personal animosity between legal representatives affects litigation conduct?
While courts recognise that professional disputes may arise, practitioners remain bound by their professional duties and cannot allow personal animosity to compromise procedural compliance or client interests. Courts will not overlook procedural failures merely because of interprofessional conflicts.
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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