Mbiko v N.T and Others (07/2018) [2018] ZAECMHC 41 (7 August 2018)

Mbiko v N.T and Others (07/2018) [2018] ZAECMHC 41 (7 August 2018)

The court found that the applicant failed to establish urgency, as the minor child was enrolled at Fairview Primary School during 2017 and was set to resume schooling in 2018. The evidence provided by the respondents, including certified school reports, disproved the applicant’s claim of infringement of the child’s right to education. Furthermore, the applicant did not comply with section 33(2) and (5) of the Children’s Act, which require co-holders of parental rights to attempt agreement on a parenting plan and seek assistance from relevant officials before seeking court intervention. The court emphasized that judicial intervention should be a last resort and dismissed the application...

Citation
[2018] ZAECMHC 41
Parties
Applicant: Baxolele Nicholas Mbiko; Respondent: N T; Respondent: A T
Court
Eastern Cape High Court, Mthatha
Jurisdiction
South Africa
Judgment Date
7 August 2018
Case Number
07/2018
Procedural Posture
Urgent Application / Opposed Motion for Interim Relief
Outcome
Application dismissed with costs.
Judges
B Majiki
Legal Topics
Parental Responsibilities and Rights, Parenting Plan, Children S Right to Education, Urgency, Section 33 Children S Act
Family and Children Civil Procedure Parental Responsibilities and Rights Parenting Plan Children S Right to Education Urgency Section 33 Children S Act

Case Brief

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Parties

Baxolele Nicholas Mbiko

Applicant

N T

Respondent

A T

Respondent

Procedural Posture

Urgent Application / Opposed Motion for Interim Relief

Legal Issues

  1. 1 Whether the applicant established urgency justifying truncated time frames for relief.
  2. 2 Whether the applicant complied with section 33(2) and (5) of the Children’s Act before approaching the court.
  3. 3 Whether the minor child's right to education was being infringed.

Ratio Decidendi

The court found that the applicant failed to establish urgency, as the minor child was enrolled at Fairview Primary School during 2017 and was set to resume schooling in 2018. The evidence provided by the respondents, including certified school reports, disproved the applicant’s claim of infringement of the child’s right to education. Furthermore, the applicant did not comply with section 33(2) and (5) of the Children’s Act, which require co-holders of parental rights to attempt agreement on a parenting plan and seek assistance from relevant officials before seeking court intervention. The court emphasized that judicial intervention should be a last resort and dismissed the application...

Court Disposition

Application dismissed with costs.

Orders

  • The application is dismissed with costs.