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Pitfalls Of Rushing To Court On An Urgent Basis

Pitfalls Of Rushing To Court On An Urgent Basis

Author: Andreas Wassenaar
Date: 2025-02-04

Traditionally the period 15 December to 16 January in the legal landscape is referred to a "dies non" period, meaning that service or delivery of legal notices are suspended during this time. The court goes into recess and only hears applications which are urgent. To proceed with an application during this time can be extremely risky as a litigant runs the great risk of the application being thrown out of court, due to lack of urgency.

A divorced mother of a 14 year old daughter applied to court on an urgent basis early in January 2025 for an order that her ex-husband consent for their daughter to be enrolled at a particular school in Cape Town and that her ex pay additional maintenance of sum R44000 per month more than he was already paying towards their daughter's maintenance.

The daughter was an exceptionally talented dancer who represented SA at an international level and the mother said she needed to attend a particular dance school in Cape Town in order to develop her full dancing potential and talent.

The mother and the minor child lived in Hermanus. The father was not in breach of any of his legal obligations and complied with all his cash maintenance orders and the terms of his decree of divorce. The father suggested the matter be referred to mediation.

The mediation process however was not completed. On 23 December 2024, the mother wrote to the father asking him to pay interim maintenance as from 1 January 2025 pending the completion of the mediation process.

She said that if he refused, she would bring an application to vary the existing maintenance order. The mother informed the court that she herself earned a modest income of R6000 per month and was forced to use about R30000 per month from the capital of her divorce settlement to supplement her income.

She said that should her daughter not be given the opportunity to join the dance team in 2025, it would have a lasting negative effect on her life and future and that she would be robbed of a chance to realise her dreams and aspirationsand her development would be hampered.

Unsurprisingly the father opposed the application, saying that the matter was premature and not urgent and insisted that a maintenance enquiry be conducted by the Maintenance Court to determine the issue of increased maintenance. He felt that the sudden change of schools was not in the child's best interests and not a viable option.

The court agreed with the father saying the urgency by the mother was self-created and said that the mother had failed to disclose material facts and was not forthcoming and transparent with the court regarding all the timelines she presented. Ther court also said that the mediation process should have been allowed to properly run its course. The application was struck off the roll for lack of urgency and the mother was ordered to pay the legal costs incurred by the father of the child.

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