H v H (2020/44450) [2022] ZAGPJHC 832 (25 October 2022)
- Citation
- [2022] ZAGPJHC 832
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- South Gauteng High Court, Johannesburg
- Panel
- Wright
- Case number
- 2020/44450
More details
- Court
- South Gauteng High Court, Johannesburg
- Panel
- Wright
- Case number
- 2020/44450
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, as the allegations were insufficient and did not demonstrate real or immediate prejudice. The expiry of the respondent's undertaking not to execute the Victor J order did not create urgency. The application was therefore struck off the roll for lack of urgency. Given the circumstances, the court held it would be unfair to order the applicant to pay the respondent's costs for the hearing, and thus ordered each party to bear their own costs.
Court disposition
Application struck off the roll for lack of urgency; each party to bear their own costs for the hearing of 25 October 2022.
Orders
- The application is struck off the roll for lack of urgency.
- The parties are to carry their own costs relating to the hearing of 25 October 2022.
02
Material facts
Parties
M [....] H [....]
Applicant Counsel: Adv PF Louw SCS [....] 1 S [....] 2-H [....]
Respondent Counsel: Attorney S Dollie03
Procedural history
Posture
Urgent Application / Application to Strike Off for Lack of Urgency
04
Questions and positions
Legal issues
- 01
Whether the application to set aside the Victor J order is urgent.
- 02
Whether the applicant has established sufficient grounds for urgency.
- 03
Whether costs should be awarded against the applicant for today's hearing.
Party arguments
- Applicant
- The applicant contended that the Victor J order should be urgently set aside as it is a nullity, alleging that Victor J exceeded her powers. He argued that immediate suspension was necessary to prevent injustice, specifically to avoid paying maintenance and a contribution towards legal costs.
- Respondent
- The respondent argued that the application lacked urgency, noting that the applicant's allegations were bare and did not establish real urgency. The respondent's attorney suggested the matter be heard on its merits but maintained that the expiry of the undertaking not to execute the Victor J order did not render the application urgent.
05
Court’s reasoning
Legal principles
- 01
Rule 6(12) Uniform Rules of Court
Urgency in motion proceedings requires clear and substantiated allegations demonstrating real and immediate prejudice if relief is not granted.
- 02
General principles of costs in civil procedure
Costs should not be awarded against a party where fairness dictates otherwise, especially in circumstances where urgency is not established.
06
Ratio, limits and disposition
Ratio decidendi
The court found that the applicant failed to establish urgency, as the allegations were insufficient and did not demonstrate real or immediate prejudice. The expiry of the respondent's undertaking not to execute the Victor J order did not create urgency. The application was therefore struck off the roll for lack of urgency. Given the circumstances, the court held it would be unfair to order the applicant to pay the respondent's costs for the hearing, and thus ordered each party to bear their own costs.
Obiter and limits
- The involvement of young children in lengthy and acrimonious divorce proceedings is regrettable and should be avoided where possible.
- The mere expiry of an undertaking not to execute a court order does not, in itself, create urgency for the purposes of motion proceedings.
Court disposition
Application struck off the roll for lack of urgency; each party to bear their own costs for the hearing of 25 October 2022.
- The application is struck off the roll for lack of urgency.
- The parties are to carry their own costs relating to the hearing of 25 October 2022.
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: 2020/44450
Reportable: No
Of interest to other judges: No
Revised: Yes
25 October 2022
In the matter between:
M [....] H [....]
APPLICANT
And
S [....] 1 S [....] 2-H [....]
RESPONDENT
JUDGMENT – WRIGHT J
WRIGHT J
1. The applicant man and the respondent woman are going through lengthy and vitriolic divorce proceedings. Unfortunately, young children are involved.
2. On 17 December 2020, Siwendu J, in Rule 43 proceedings, made an order by agreement. The order provided for the appointment of a psychologist to look into the matter, to consult and to provide a report. The order provided for custody, interim contact with the children and it dealt with domestic violence allegations and other matters.
3. A lengthy Rule 43 application was later argued before Victor J, who handed down her order on 12 September 2022 and gave reasons on 30 September 2022. Victor J essentially ordered that both parties retain their rights and responsibilities as parents, that the primary residence of the children would be with the present respondent, that both parties had to attend joint therapy sessions with a court nominated psychologist and that the present applicant had to pay maintenance in a certain amount and pay a contribution to the present respondent’s legal expenses.
4. The present lengthy application seeks the setting aside of the Victor J order on the basis that it is a nullity. Allegations include that Victor J went beyond her powers.
5. The present application is brought as one of urgency. The applicant seeks urgently today the setting aside of the Victor J order.
6. The closest the present applicant gets to a case on urgency are bare allegations that if the Victor J order is not immediately suspended injustice will follow and the applicant will have to pay maintenance and make the contribution towards legal costs. These considerations do not begin to create real urgency.
7. The respondent’s attorney suggested that I hear the matter on its merits. He confirmed that an undertaking given by his client not to execute the Victor J order ends today, 25 October 2022. The respondent’s attorney’s suggestion that I hear the case on its merits does not take the question of urgency any further. The fact that the undertaking ends today does not change the fact that the application lacks urgency as appears from the founding and supplementary affidavits.
8. The present application was launched in September 2022, for hearing on 4 October 2022. The notice of motion is undated. The Registrar’s stamp is dated 30 September 2022. On 4 October 2022, the day on which the hearing was sought, Makume J made an order by agreement. The order included the present respondent’s undertaking not to execute until 25 October 2022, which is today. On 4 October 2022, as is reflected in the Makume J order, the present respondent had expressly reserved the right to argue urgency.
9. In my view, it would in the circumstances be unfair to order the present applicant to pay the present respondent’s costs associated with today’s hearing.
ORDER
1. The application is struck off the roll for lack of urgency.
2. The parties are to carry their own costs relating to the hearing of 25 October 2022.
HEARD
: 25 October 2022
DELIVERED
: 25 October 2022
APPEARANCES
APPLICANT
: Adv PF Louw SC
gjkotze@counsel.co.za
briefed by Jagga and Associates
dylan@jagga-inc.com
RESPONDENT
:Attorney S Dollie
shaheed@sdollieinc.co.za
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