S.A.H. v S.B.H. (2025/038564) [2025] ZAGPJHC 538 (5 June 2025)

Case Note

S A H v S B H — 2025 (5) SA 123 (GJ) — 2025-06-05

Dates, Case No & Neutral Citation

2025-06-05; Case No 2025 -038564; 2025 ZAGPJHC 1217

Court and Coram

High Court of South Africa, Gauteng Division, Johannesburg; L. Windell, A. Maier-Frawley, M.P. Motha

Reportability

YES

HEADNOTE

Summary

Section 18 of Superior Courts Act 10 of 2013 – leave to execute pending appeal – section 18(3) imposes a stringent test, especially where final relief is granted on contested facts and no oral evidence was led in the main application – requirements of exceptional circumstances and irreparable harm not satisfied – appeal upheld and execution of the relocation order suspended.

Held

The appeal is upheld. The operation and execution of the order granted on 8 April 2025 is suspended pending the outcome of the appeal in the main application.

Cases, Statutes and Texts Cited

Cases: Ntlemeza v Helen Suzman Foundation and Another 2017 (5) SA 402 (SCA); KGA Life Limited v Multisure Corporation (Pty) Ltd Unreported, ECMk case no CA 157/2022 dated 14 December 2022; Incubeta; MV Ais Mamas: Seatrans Maritime v Owners, MV Ais Mamas and Another 2002 (6) SA 150 (C); Tyte Security Services CC v Western Cape Provincial Government 2024 (6) 175 (SCA); B v S 1995 (3) SA 571 (A)

Legislation: Superior Courts Act 10 of 2013

THE FACTS

The parties were divorced on 17 March 2023 and have three children. The appeal concerns the youngest child, Z, who is currently 11 years old. The respondent sought to relocate with the minor child to Durban, which the appellant opposed. The respondent unilaterally removed the child to Durban without consent, prompting the appellant to seek urgent proceedings for the child's return.

THE ISSUES

Whether the court a quo erred in granting relief under section 18(3) of the Superior Courts Act, allowing the respondent to relocate with the minor child pending appeal.

ANALYSIS

The court found that the respondent failed to demonstrate exceptional circumstances or irreparable harm as required under section 18(3). The appellant showed that the minor child would suffer irreparable harm if relocated, as her connections in Johannesburg were significant.

REMEDY

The appeal is upheld, and the execution of the relocation order is suspended pending the outcome of the appeal.

LEGAL PRINCIPLES

The requirements for obtaining an order under section 18(3) are stringent, necessitating proof of exceptional circumstances and irreparable harm. The best interests of the child are paramount in custody disputes.