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[2022] ZAGPJHC 655
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JO v ZO (14941/2022) [2022] ZAGPJHC 655 (6 September 2022)
SAFLII Note:
Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Case
number: 14941/2022
Date
of hearing: 5 September 2022
Date
delivered: 6 September 2022
REPORTABLE:
YES/NO
OF
INTEREST TO OTHERS JUDGES: YES/NO
REVISED
In
the application between:
J
[....] S [....] O [....] 1
and
Applicant
Z [....] I [....]
O [....]
2
Respondent
JUDGMENT
SWANEPOEL
AJ:
[1]
This is an application for leave to appeal against an order granted
by me on 15 June 2022. I may only grant leave to appeal
if I find
that there is a reasonable prospect that an appeal would be
successful before another Court.
[1]
The
facts of the matter and the order are a matter of record, and I will
not repeat them.
[2]
The applicant now argues that paragraphs 2 and 6 of the order of Van
Nieuwenhuizen AJ were not sought by applicant, were not
underpinned
by fact, and that those paragraphs of the order are pro non scripto.
Therefore, the argument goes, the only orders
that remain are the
orders dismissing the application, and appointing a person to assess
the children. It follows, applicant says,
that I should not have
entertained an application to suspend an order which is pro non
scripto.
[3]
There are two fundamental problems with this argument. Firstly, as
counsel for respondent correctly pointed out, an order which
is pro
non scripto cannot merely be ignored, and should be given effect to
until it is set aside by a competent court. In Department
of
Transport and Others v Tasima Pty) Ltd the Court said
[2]
:
"Therefore, until a
court is appropriately approached and an allegedly unlawful exercise
of public power is adjudicated upon,
it has binding effect merely
because of its factual existence. "
[3.1] Secondly, my order
did not suspend the order of Van Nieuwenhuizen AJ. I granted a
declaratory order to the effect that the
order was automatically
suspended by virtue of
section 18
(1) of the
Superior Courts Act,
2013
.
[4]
Applicant persisted (in the alternative to the submission that the
order was pro non scripto) with the contention that the order
was
interlocutory in nature. I have already expressed my views on that
argument, and I did not hear anything further which would
move me to
change my view on the matter.
[5]
Applicant's counsel argued that applicant did not require any order
to relocate to Cape Town, and that, as primary caregiver,
she was
entitled to make the decision unilaterally. She says that
section 31
of the
Children's Act, 2005
gave her the right to decide to relocate
if she so wished. Firstly, I do not believe that applicant has
correctly interpreted
section 31.
I do not believe that it is
necessary for this judgment to expound on how I understand
section
31.
Secondly, and the main point, is that respondent ignores the fact
that there is an existing
rule 43
order which she cannot give effect
to whilst she resides in Cape Town.
[6]
In argument, counsel for applicant did not persist in the submission
made in the application for leave to appeal, to the effect
that this
Court had lost jurisdiction upon applicant relocating to Cape Town.
It has been repeatedly held, and it is trite, that
once jurisdiction
is founded, it persists until the matter is finalized.
[7]
In the premises I do not believe that an appeal would be successful
before another Court.
[8]
I make the following order:
[8.1 The application for
leave to appeal is dismissed with costs.
SWANEPOEL
AJ
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
LOCAL DIVISION OF THE HIGH COURT,
JOHANNESBURG
COUNSEL
FOR APPLICANT:
Adv. P.V. Ternent
ATTORNEY
FOR APPLICANT:
Billy Gundelfinger Attorneys
COUNSEL
FOR RESPONDENT:
Adv A. Bester
ATTORNEYS
FOR RESPONDENT:
HJW Attorneys
DATE
HEARD:
5 September 2022
DATE
OF JUDGMENT:
6 September 2022
[1]
Section 17
(1) (a) (i) of the
Superior Courts Act, 2013
[2]
2017 (2) SA 622
(CC) at para 147