E.A.L-B v A.V.M (066657/2023) [2023] ZAGPJHC 1167 (17 October 2023)
- Citation
- [2023] ZAGPJHC 1167
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- South Gauteng High Court, Johannesburg
- Panel
- Yacoob
- Case number
- 066657/2023
More details
- Court
- South Gauteng High Court, Johannesburg
- Panel
- Yacoob
- Case number
- 066657/2023
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that the applicant failed to establish urgency for his application, as his conduct and the timeline of events indicated that he did not treat the matter as urgent. The applicant's actions, including delayed communication and unilateral decisions regarding the children's residence, demonstrated a lack of bona fide urgency. Regarding contempt, the court held that while the applicant deliberately disregarded the existing court order, there was a small possibility that he acted in good faith for the protection of his children, and thus contempt was not established beyond reasonable doubt. The parties reached agreement on the immediate arrangements for the children, and the court endorsed this consensus. Given the applicant's conduct, the court ordered him to pay the costs of both the main and urgency applications.
Court disposition
Application for urgent relief dismissed; contempt application not upheld; costs awarded against the applicant.
Orders
- The applicant is ordered to pay the costs of both the main application and the urgency application.
- The arrangements for the minor children as agreed by the parties are made an order of court.
02
Material facts
Parties
E.A.L-B
ApplicantA.V.M
Respondent03
Procedural history
Posture
Urgent Application / Final Determination of Urgent and Contempt Applications
04
Questions and positions
Legal issues
- 01
Whether the applicant established urgency for the main application.
- 02
Whether the applicant is in contempt of the existing court order regarding the children's residence and access.
- 03
What relief should be granted in light of the parties' agreement on the children's immediate arrangements.
- 04
Who should bear the costs of the applications.
Party arguments
- Applicant
- The applicant sought an urgent order for the minor children to reside primarily with him and for the respondent to have only supervised access, citing concerns about the respondent's conduct and the welfare of the children. He argued that the situation required immediate intervention and that his actions were in the best interests of the children.
- Respondent
- The respondent opposed the urgency of the application, contending that the applicant did not treat the matter as urgent and failed to communicate promptly. She alleged that the applicant was in contempt of the existing court order governing residence and access, and sought the return of the children to her care, emphasizing the applicant's high-handed conduct and disregard for proper procedure.
05
Court’s reasoning
Legal principles
- 01
South African family law jurisprudence
Urgency in family law applications requires the applicant to demonstrate that immediate relief is necessary and that the matter cannot wait for the ordinary court process.
- 02
Fakie NO v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA)
Contempt of court requires proof of wilful and mala fide disregard of a court order; subjective good faith may negate contempt.
- 03
Children's Act 38 of 2005; Uniform Rules of Court
Costs may be awarded against a party whose conduct is unreasonable or high-handed in litigation, especially in family law matters.
06
Ratio, limits and disposition
Ratio decidendi
The court found that the applicant failed to establish urgency for his application, as his conduct and the timeline of events indicated that he did not treat the matter as urgent. The applicant's actions, including delayed communication and unilateral decisions regarding the children's residence, demonstrated a lack of bona fide urgency. Regarding contempt, the court held that while the applicant deliberately disregarded the existing court order, there was a small possibility that he acted in good faith for the protection of his children, and thus contempt was not established beyond reasonable doubt. The parties reached agreement on the immediate arrangements for the children, and the court endorsed this consensus. Given the applicant's conduct, the court ordered him to pay the costs of both the main and urgency applications.
Obiter and limits
- The court cautioned the applicant that any future disregard of court orders would likely count against him and that this judgment could be used by the respondent in subsequent proceedings.
- The court emphasized the importance of open communication and good faith between parents in matters affecting minor children.
Court disposition
Application for urgent relief dismissed; contempt application not upheld; costs awarded against the applicant.
- The applicant is ordered to pay the costs of both the main application and the urgency application.
- The arrangements for the minor children as agreed by the parties are made an order of court.
Source and reliance status
South Gauteng High Court, Johannesburg
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
South Gauteng High Court, Johannesburg
Judgment
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 LOCAL DIVISION, JOHANNESBURG
CASE NO: 066657/2023
DATE: 18-07-2023
NOT REPORTABLE
NOT OF INTEREST TO OTHER JUDGES
17/10/23
In the matter between
E.A.L-B Applicant And A.V.M Respondent
JUDGMENT
YACOOB J:
This matter comes before me on an urgent basis in the family court. The applicant seeks an order that the minor children of the parties primary residence be with him, and that the respondent is only entitled to supervised access to them. The respondent, in a counter application, seeks an order that the applicant is in contempt of the Court Order currently governing the children’s residence and the parties’ access to them, and seeking the return of the children to her.
By the end of the hearing of the matter, parties are ad idem on the merits of what must happen to the children at this moment in time. What remains for me to determine are the urgency of the main application, the merits of the contempt application and the question of costs.
On urgency I am satisfied that the applicant shows that he did not seriously consider the matter urgent. The affidavit itself sets out the issues reaching back to 2016 which would be irrelevant if the matter was truly urgent. If the matter was truly urgent and the real issue was the allegations against Mr Masters the applicant could easily have been in court on 3 July on ex parte basis for an interim order or rule nisi that he be allowed to keep the children with him.
It was also submitted in this court that the applicant only told the children’s mother at 14h38 on 4 July that she is not getting the children back because that is when he first realised that the matter was urgent. This is inconsistent with the e-mail between him and his attorney on 5 July which shows that the only time that he actually decided to come to court urgently was on 5 July.
The applicant’s own conduct shows that he did not consider the matter urgent, and taking into account that the main complaints are of the manner in which the Masters conduct themselves as parents, I am satisfied that he has not established urgency for his application.
That being said, the Court cannot turn a blind eye to the kind of allegations that are made and that is why it would nevertheless be necessary for the Court to order some kind of relief. The nature of that relief has now been agreed by the parties.
As far as contempt is concerned the applicant’s conduct as shown in the manner in which he litigated and in the content of his own papers shows that he is high handed and has little regard for anybody else including the mother of his children. He even accepted his promotion without apparently first considering the effect on the minor children or discussing with their mother what the effect would be. He dictated what steps would be taken on 4 July, without having any discussion with the respondent.
In my view the fact that he did not immediately communicate with the children’s mother on finding out these allegations; that he was not open with her immediately regarding whether she would collect them or not, and that the decision to bring the urgent application was only made later, tells me that his actions were not bona fide.
However, the question of whether the disregard of the Court order was wilful is a subjective one.
Mr L.B’s conduct is very much on the borderline. There is a small possibility that he acted in disregard of the Court order in good faith. He clearly did disregard it and he clearly did that deliberately, however I give him the benefit of the doubt that it may have been in good faith for the protection of his children.
That being said he must consider himself warned. This judgment will be transcribed and the mother of the children would be able to use it against him if he choses to disregard the Court order again. I am sure that it will count against him.
As far as costs are concerned taking into account Mr L-B’s conduct I am satisfied that he should have to pay the costs of both the main application and the urgency application. For these reasons I grant an order in terms of the draft.
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YACOOB, J
JUDGE OF THE HIGH COURT
DATE: 17/10/23
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