Brief Summary

Custody — Appeal against interim custody order — Mother required to surrender son to grandmother pending main hearing — Mother applied for leave to appeal, which was dismissed — Central issue whether the order was final in effect and thus automatically suspended pending appeal — Court held that the order was final in effect, issuing a declaratory order to that effect, and therefore automatically suspended pending the appeal process — Appeal succeeded with costs.

Comprehensive Summary

Summary of Judgment

1. Introduction

This judgment concerns a special statutory appeal brought in terms of section 18(4)(ii) of the Superior Courts Act 10 of 2013, heard by a Full Court of the Gauteng Division, Johannesburg. The appeal did not engage with the merits of the underlying child-care dispute, but rather with the operative effect of an earlier order while appeal processes were pending.

The parties were K[....] M[....] R[....] (the appellant, the child’s mother) and K[....] R[....] (the respondent, the child’s maternal grandmother). The litigation arose from an application in which the grandmother sought relief affecting the care and residence of a minor child, N[....], aged seven.

Procedurally, an order was made on 3 November 2020 in a bifurcated application customary in that Division: Part A sought interim relief pending the determination of Part B, which would decide longer-term arrangements after oral evidence. Following the making of the Part A order, the mother lodged an application for leave to appeal, and also launched a section 18 application aimed at clarifying whether the 3 November 2020 order was automatically suspended or, if not, whether it should be suspended under section 18(2) and (3). On 4 December 2020, both the application for leave to appeal and the section 18 application were dismissed.

After the dismissal, the mother petitioned the Supreme Court of Appeal for leave to appeal and simultaneously pursued this section 18 appeal to the Full Court. The dispute before the Full Court concerned whether the 3 November 2020 order was final in effect (and thus automatically suspended by section 18(1) upon the lodging of appellate steps) or an interlocutory order not having the effect of a final judgment (and thus not suspended by section 18(2), absent an exceptional-circumstances order under section 18(3)).

2. Material Facts

The central factual premise was the existence and operation of the 3 November 2020 order, made “pending the finalisation of Part B”. That order directed, among other things, that the child’s primary place of residence vest with the grandmother in Cape Town, and required the handover of the child from the mother to the grandmother, with facilitation by a social worker and possible involvement of the South African Police Service. It further regulated decision-making regarding religion, medical interventions, education, and extramural activities through mechanisms involving a parenting coordinator, and it provided for therapy and occupational therapy arrangements in Cape Town. It also set out procedural directions anticipating the referral of Part B to oral evidence, including discovery, expert notices, expert meetings, and a pre-trial conference.

A further set of facts material to the court’s assessment concerned the pre-order status quo, which the Full Court described in summary form. Before the 3 November 2020 order, the child had resided in Johannesburg for nearly four years and exclusively with the mother for more than five years. He had been enrolled at Saheti School for about two years (at the time attending online due to the COVID-19 pandemic), had friends and social connections, had regular contact with his maternal grandfather, had contact with his biological father and half-siblings, and was receiving therapy in Johannesburg. The child had had little contact with the grandmother in recent times.

The Full Court also treated as material the practical consequences of implementing the 3 November order. It identified that the order required the child to be removed summarily and without transition from his mother, transported to Cape Town, and placed in the grandmother’s de facto care while the grandmother sought, in Part B, to make the arrangement permanent. The order limited the mother’s interaction with the child largely to brief, scheduled electronic contact. It entailed the cessation (for the duration of the interim arrangement) of the child’s physical contact with his maternal grandfather and biological father. It also entailed abandoning the child’s existing therapy in Johannesburg and commencing therapy in Cape Town with a therapist yet to be identified.

On the question of duration, the Full Court accepted that the interim arrangement was indefinite: it would endure until Part B was completed, with preparatory steps and the dynamics of hostile litigation creating a likelihood of substantial delay, and with a recognised risk of further appeals after Part B.

3. Legal Issues

The central legal question was whether the 3 November 2020 order was, for purposes of section 18 of the Superior Courts Act, a decision “having the effect of a final judgment” (thereby attracting the automatic suspension rule in section 18(1) once appellate steps were taken) or instead an “interlocutory order not having the effect of a final judgment” (thereby falling under section 18(2), which provides that such orders are not suspended pending appeal unless a court orders otherwise under section 18(3)).

Closely connected to that question was whether the court a quo’s approach was correct in treating the failure of the application for leave to appeal as disposing of the section 18 inquiry, and whether a section 18 evaluation remained necessary despite the dismissal of leave to appeal given the availability of a petition procedure to a higher court.

The dispute primarily concerned the application of legal standards to the effects of an order (a mixed question of law and fact). The Full Court treated the characterisation of the order as “final in effect” as a finding on the facts about the order’s true operative consequences, rather than a classification determined by the label of “interim” or the issuing judge’s intention.

4. Court’s Reasoning

The Full Court began by setting out the structure of section 18. It emphasised that section 18(1) and 18(2) create two classes of orders: those having the effect of a final judgment and those not having such effect. The court stressed that an order may be interlocutory in form yet still be final in effect, and that only interlocutory orders lacking final effect fall within section 18(2)’s default rule of non-suspension.

In identifying how to determine whether an order is final in effect, the Full Court referred to the attributes of appealable decisions described in Zweni v Minister of Law and Order 1993 (1) SA 523 (A), while also recognising the refinements articulated in City of Tshwane Metropolitan Municipality v Afriforum 2016 (6) SA 279 (CC), which locate appealability within broader interests of justice considerations. Although the case before it was framed in section 18 terms, the Full Court used these authorities to illuminate the inquiry into finality of effect and the modern understanding that form should not trump substance.

A further aspect of the Full Court’s reasoning concerned the relationship between reversibility and final effect. It held that “finality” should not be equated with literal irreversibility. The court explained that the evaluation turns on effect, not form, and that even where an order may theoretically be reversed, factors such as the duration of its operation, the likelihood of events prompting reconsideration, and the logistical and human realities of restoring a prior position weigh heavily in evaluating the order’s true impact.

The court paid particular attention to the way orders affecting human relationships, especially those involving children, may operate on “moving targets”. It reasoned that the consequences of an interim arrangement can create momentum that reshapes relationships and practical circumstances, such that later “reversal” may not restore the original position and may instead require a fresh order crafted for changed conditions. This understanding was central to the court’s conclusion that an interim order can nevertheless be final in effect.

Applying these principles to the case, the Full Court concluded that the 3 November 2020 order was final in effect. It reasoned that the order created a new de facto caregiving arrangement by removing a seven-year-old child from his mother and established environment, relocating him to another city, curtailing maternal interaction to limited electronic contact, and disrupting ongoing familial contact and therapeutic arrangements, all for an indefinite period dependent on protracted litigation. The court considered that these effects were irreversible in practical impact even if, in theory, the order could be reversed. It also accepted the submission that in a child as young as seven, relocation and separation could affect the trajectory of his life, including bonding and social ties, and that the new status quo would likely influence the eventual outcome of Part B.

The Full Court further addressed the court a quo’s approach to the section 18 application. It held that the dismissal of the application for leave to appeal did not justify dispensing with the section 18 inquiry, since a petition to a higher court remained possible. It also rejected the notion that the issuing judge’s intention that the order be interim could determine its effect; the characterisation depended on the order’s objective consequences.

Finally, on costs, the Full Court dealt with an argument that no costs order could be granted because the notice of appeal did not contain a prayer for costs. The court endorsed the principle that the entitlement to seek costs depends on adequate notice to the opponent that such an order will be sought, not necessarily on formal pleading. It referred to Public Protector v South African Reserve Bank 2019 (6) SA 253 (CC) for the proposition that formal notice is not invariably required, and accepted that notice contained in heads of argument may suffice, as illustrated in Naidoo v Matlala NO 2012 (1) SA 143 (GNP). On the facts, both parties had sought costs if successful, and the court held there was no reason why the respondent should not bear the costs of the section 18 appeal.

5. Outcome and Relief

The Full Court upheld the appeal.

It set aside paragraph 3 of the order of 4 December 2020 and substituted it with a declaratory order stating that the order and judgment of 3 November 2020 was a judgment having a final effect and was automatically suspended pending the conclusion of any appeal process, including applications for leave to appeal.

The court ordered that the respondent bear the appellant’s costs of this special appeal.

Cases Cited

Zweni v Minister of Law and Order 1993 (1) SA 523 (A)

Marsay v Dilley 1992 (3) SA 944 (A)

City of Tshwane Metropolitan Municipality v Afriforum 2016 (6) SA 279 (CC)

National Implement Co v Bouwer 1955 (3) SA 314 (T)

Public Protector v South African Reserve Bank 2019 (6) SA 253 (CC)

Naidoo v Matlala NO 2012 (1) SA 143 (GNP)

Hummel v Hummel 2012 JDR 1679 (GSJ)

TC v SC 2018 (4) SA 530 (WCC)

OUTA (referred to in City of Tshwane Metropolitan Municipality v Afriforum 2016 (6) SA 279 (CC); full citation not provided in the judgment)

Legislation Cited

Superior Courts Act 10 of 2013, section 18

Children’s Act 38 of 2005, sections 18(2)(a)–(d), 18(3), 23, 24, and 31

Rules of Court Cited

Uniform Rule of Court 35(1)

Uniform Rule of Court 36(9)(a) and 36(9)(b)

Uniform Rule of Court 37

Held

The Full Court held that the order of 3 November 2020, although framed as an interim order pending Part B, was final in effect because it immediately and indefinitely altered the child’s residence and caregiving arrangements, disrupted existing relationships and therapeutic interventions, and created practical consequences that could not realistically be undone by later reversal.

It further held that, because the order was final in effect, it fell within section 18(1) of the Superior Courts Act and was therefore automatically suspended upon the lodging of appellate steps, pending the conclusion of the appeal process (including applications for leave to appeal).

The appeal against the dismissal of the section 18 relief therefore succeeded, and a declarator was issued confirming the automatic suspension. Costs were awarded against the respondent.

LEGAL PRINCIPLES

An order may be interlocutory in form yet final in effect, and for purposes of section 18(1) and 18(2) of the Superior Courts Act the determinative inquiry concerns the effect of the order rather than its label or the issuing judge’s intention.

The assessment of “final effect” is not confined to whether an order is theoretically reversible. In evaluating effect, considerations include the likely duration of the order, practical barriers to restoring the status quo, and the real-world consequences that flow from implementation, particularly where implementation creates a new status quo that is difficult to unwind.

In matters involving children and family relationships, interim arrangements can have enduring practical consequences that reshape relationships and living circumstances. In such contexts, the “moving target” nature of human relationships means that even a formally reversible order may operate with final effect in practice.

The dismissal of an application for leave to appeal does not necessarily exhaust appellate possibilities where a petition procedure remains available; accordingly, the section 18 inquiry cannot be treated as automatically resolved solely because leave to appeal was refused at first instance.

A costs order is not invariably dependent on a formal prayer in the notice of appeal; what is required is that the party against whom costs are sought has adequate notice and an opportunity to address the issue.

K.M.R v K.R (44169/2019) [2021] ZAGPJHC 35 (18 March 2021)