E.L.B v A.V.M

The parties divorced in 2016 and entered into a settlement agreement made an order of court regulating their parental rights and responsibilities regarding three minor children. The agreement required joint decisions on significant changes to the children's living conditions, education, health, or wellbeing. In July 2023, the Johannesburg High Court ordered the return of the children to the respondent and appointed a psychologist to investigate the children's best interests. The applicant relocated from Johannesburg to KwaZulu-Natal in September 2023, leaving the children in the respondent's primary care. On 1 April 2024, the respondent relocated with the children from Johannesburg to Somerset West, Western Cape, without the applicant's consent. The applicant became aware of the respondent's intention on 30-31 March 2024 and launched an urgent application on 15 April 2024 seeking an order for the immediate return of the children to Johannesburg, alternatively an investigation by the Family Advocate. The applicant had previously indicated on 5 April 2024 that he would not bring urgent proceedings for the children's return but would instead seek a Family Advocate investigation.

• Whether the matter was sufficiently urgent to be heard on the urgent roll in terms of Uniform Rule 6(12)(b)
• Whether the applicant would be afforded substantial redress at a hearing in due course
• Whether the urgency was self-created by the applicant
• Whether the application was properly enrolled in compliance with the Practice Directives of the Western Cape Division

The application was struck from the roll for lack of urgency. Each party was ordered to pay his or her own costs. The court did not determine the merits (including the contempt application in Part B).

An applicant seeking to be heard on an urgent basis must demonstrate compliance with Uniform Rule 6(12)(b) by setting forth explicitly the circumstances rendering the matter urgent and the reasons why substantial redress cannot be obtained at a hearing in due course. Urgency that is self-created by the applicant's own delay or conduct will not justify the truncated time periods and procedural shortcuts of the urgent court. The mere involvement of minor children does not exonerate an applicant from complying with Rule 6(12)(b).

The court noted that Rule 20(2) of the Practice Directives requires an applicant's legal representative to file a practice note when setting down a matter, and that consistency in enforcing rules is important as it informs practitioners that rules and practice directives can only be ignored at a litigant's peril. The court also noted the sentiments expressed in Grootboom v NPA that rules and court directives serve to ensure effective and efficient court operations.

This judgment reinforces the stringent requirements for urgent applications in the Western Cape High Court, particularly in family law matters. It affirms the principle that urgency must not be self-created and that litigants cannot sit back until the last moment and then seek urgent relief. It also underscores the importance of compliance with Practice Directives and that the involvement of minor children does not automatically render a matter urgent or excuse non-compliance with procedural rules.