MM v NM and Others (15133/23P) [2023] ZAKZPHC 117 (18 October 2023)
Introduction
In a recent case presided over by Davis AJ, MM (the applicant) filed an urgent application against NM (the first respondent), the Office of the Family Advocate, St. Charles College, and Alston Primary School. The case primarily revolved around the schooling of the couple’s minor child and the applicant’s parental rights.
Background
MM and NM were never married but have an eight-year-old son. The child was initially enrolled at St. Charles College. NM had left the family home in January 2023 to live with her new boyfriend. MM later sought a protection order against NM’s adult daughter in May 2023 and requested that NM and her family leave the premises. NM unilaterally moved the child to Alston Primary School, allegedly without MM’s consent. MM filed an urgent application to have the child returned to St. Charles College and for NM to bear the legal costs.
Legal Requirements for Urgent Applications
When a litigant seeks judicial relief on an urgent basis, compliance with Uniform Rule 6(12)(b) is mandatory. The rule stipulates: “In every affidavit filed in support of any application under paragraph (a) of this subrule, the applicant must explicitly outline the circumstances claimed to render the matter urgent and the reasons why the applicant believes they cannot obtain substantial redress through a standard hearing process.”
Two-Fold Test for Urgency
The rule establishes a bifurcated test for determining urgency: First, the urgency must not be self-imposed; and second, the applicant must elucidate why substantial relief cannot be obtained through regular judicial channels. It is crucial to understand that the mechanism provided by Rule 6(12) is not a mere formality but requires substantive justification.
Judicial Interpretation of Urgency
Notshe AJ, in the case of East Rock Trading 7 (Pty) Ltd v Eagle Valley Granite (Pty) Ltd, elaborated on this by stating: “The procedure outlined in Rule 6(12) is not a mere formality. An applicant must explicitly detail the circumstances that make the matter urgent. More importantly, the applicant must articulate why they cannot obtain substantial redress in a standard hearing. The question of urgency is fundamentally tied to the absence of alternative substantial redress.”
The Role of Harm in Urgency
De Wit, in his scholarly article on East Rock Trading, clarified that harm alone does not establish urgency. Rather, harm serves as a precondition for urgency. If no harm is present or anticipated, an application for urgent relief is moot. However, even when harm exists, urgency is only established if the applicant cannot obtain timely redress for that harm.
Self-Created Urgency and Judicial Discretion
Strydom J, in Roets N.O. v SB Guarantee Company (RF) (Pty) Ltd, emphasized that self-created urgency could result in the application being struck off the roll. The court’s decision would depend on the adequacy of the explanation provided for the delay in seeking relief. If an applicant fails to provide a satisfactory explanation for the delay, the court may be compelled to hear an urgent application even when the urgency is self-created, which would be an untenable situation.
The Implications of Self-Created Urgency
If the court were to entertain urgent applications without requiring a satisfactory explanation for delays, it would create a situation where an applicant only needs to demonstrate potential irreparable harm to obtain relief. This would undermine the integrity of the judicial process and could potentially flood the courts with applications framed as urgent without substantive justification.
The court scrutinised the urgency of the application under Uniform Rule 6(12)(b), which requires that the urgency should not be self-created and that the applicant cannot obtain substantial redress in due course. The court also considered the best interests of the child, as mandated by Section 28(2) of the Constitution. The court was of the view that the matter was not urgent based on the following:
- Self-Created Urgency: The court determined that the urgency was self-created by the applicant, MM. He had been aware of the school change since July but waited until October to file the application. This delay undermined his claim of urgency.
- Availability of Alternative Redress: The court noted that the children’s court was already dealing with the matter, including issues of access, custody, and maintenance. This suggested that MM could obtain substantial redress in due course through the children’s court, negating the need for urgent intervention by the high court.
- Lack of Immediate Harm: The court found no evidence to suggest that the current status quo was not in the best interests of the child. The child was enrolled in an accredited school and was living with his primary caregiver, his mother.
- Incomplete Explanation for Delay: The court criticized the applicant for not providing a satisfactory explanation for the delay in bringing the application. The rules for urgent applications require a full account of the timeline and reasons for the urgency, which was lacking in this case.
- Best Interests of the Child: The court emphasised that the best interests of the child are paramount. It noted that a full examination of what is in the child’s best interests would be better served in the children’s court, where a more comprehensive investigation and deliberation could take place.
For these reasons, the court concluded that the matter did not meet the criteria for urgency as stipulated in Uniform Rule 6, and therefore, the application was struck off the roll.
The Factual Matrix
The applicant had relied on a detailed factual matrix in his founding affidavit to substantiate his application for urgent relief. He had been in an intimate relationship with the respondent, although they were never married. They had a son, who was eight years old at the time. The family had lived in Scottsville, Pietermaritzburg, and faced a series of domestic challenges, including the respondent leaving the family home and the applicant seeking a protection order against the respondent’s adult daughter. The applicant had also raised concerns about the unilateral decision by the respondent to change their son’s school, which he argued was against the child’s best interests and violated his parental rights under Section 31 of the Children’s Act 38 of 2005.
The Legal Framework
Throughout the proceedings, the court had applied the paramountcy principle, as enshrined in Section 28(2) of the South African Constitution, which places the best interests of the child at the forefront of any judicial decision-making process.
Submissions by the Parties
Mr. Miya, representing the applicant, had argued that the matter was urgent, primarily because the best interests of the child were at stake. However, he could not convincingly demonstrate that substantial redress could not be obtained through the pending children’s court enquiry. On the other hand, the respondent, who appeared in court without legal representation, had contended that she acted in the best interests of all her children, including the applicant’s child, when she enrolled him in a state school nearby.
Legal Analysis and Court’s Position
The children’s court enquiry, initiated by the respondent, had been designed to protect the child and settle how both parents’ parental rights and responsibilities towards the child would be regulated. The court had found that this was the proper forum for the applicant to ventilate and vindicate his parental rights.
The court had also noted that the applicant had waited for an extended period before approaching the court for urgent relief, thereby making the urgency self-created. The children’s court was already seized with the exact issue pertaining to the child’s schooling and would deal with issues of access, custody, and maintenance in a holistic manner.
The Best Interests of the Child
The court had considered the all-pervasive standard of the best interests of the child, as stated in Section 28(2) of the Constitution. It had found that there was not a single piece of evidence to suggest that the current status quo was not in the best interests of the child. The court had also critiqued the applicant’s premise that an elite independent school automatically provided a superior quality of education and access to sporting facilities than a state school.
Conclusion
The court had concluded that the proper place for the determination of what was in the best interests of the child was the children’s court. The court had found that the applicant’s contention of urgency failed to pass judicial muster, and the children’s court was the appropriate forum to resolve the issues raised in this application.
Summarised by Bertus Preller, a Family Law and Divorce Law attorney at Maurice Phillips Wisenberg in Cape Town. A blog, managed by SplashLaw, for more information on Family Law read more here.
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