In the High Court of South Africa
(Western Cape Division, Cape Town)
Case No: 20375/2024
In the matter between:
YC Applicant
and
JRC First Respondent
In re the minor child (Born 28 July 2014)
MC
Heard: 20 September 2024
Delivered Ex tempore: 20 September 2024
JUDGMENT
LEKHULENI J
1. Introduction
[1] This is an urgent application in which the applicant seeks an order pending
the finalisation of the relief sought in Part B, that the respondent be compelled to
allow the minor child, MC, to travel from Durban to Cape Town on 21 September
2024 and remain i n the care of his mother, the applicant, until 6 October 2024. In
addition, the applicant seeks an order that the Office of the Family Advocate in Cape
Town liaise with the Office of the Family Advocate in Durban to consider an
acceptable interim parenting plan and to comment on a draft parenting plan attached
to her application. The applicant also sought an order that the draft parenting plan
attached to her application be implemented immediately and until such time as the
divorce proceedings between the parties instituted under case number D10408/2022
in the KwaZulu-Natal Division of the High Court either become settled or is finalised.
[2] In part B of the application, the applicant seeks an order to transfer the
divorce action from the Division of the KwaZulu-Natal High Court to the Western
Cape High Court held in Cape Town. In addition, the applicant asserts that she will
seek an order in part B that the Office of the Family Advocate in Cape Town
investigate the circumstances of the applicant and respo ndent on what would be in
the best interest of the minor child and to ascertain what the child's wishes are with a
view of honouring section 10 of the Children's Act 38 of 2005 ("the Children's Act") in
respect of the precepts of allowing the voice of the child to be heard. The urgency in
this matter is based on the fact that the minor child is scheduled to fly from Durban to
Cape Town on 21 September 2024 if this Court were to grant the applicant's
application.
2. Background facts
[3] The applicant and the respondent were married to each other on 12 March
2010, and the marriage still subsists; however, the applicant has instituted divorce
proceedings in the KwaZulu -Natal Division of the High Court under case number
D10408/2022. The divorce proceedings were initiated on 5 October 2022 and have
not yet been finali sed. The applicant, the respondent, and their minor child lived in
Durban until 4 June 2024. On that date, the applicant left their shared home in
Durban and relocated to Cape Town wi thout informing the respondent, leaving the
minor child with the respondent.
[4] According to the applicant, she suffered an emotional and mental breakdown
and had to receive treatment for same. Upon her discharge from the Mental Health
Clinic on 04 June 2024, she flew to Cape Town to be with her mother and other
members of her extended fa mily as she needed support. She left the minor child in
the care of the respondent in Durban.
[5] As the Spring holidays loomed, the parties, through the ir legal
representatives, exchanged correspondences on how the applicant and the
respondent would share the holidays with the minor child. The applicant expressed
her wish for the minor child to spend the entirety of the September holidays in her
care. Conversely, the respondent proposed dividing the holiday period, suggesting
that the minor child spend time with the respondent from 21 to 28 September, and
with the applicant from 28 September to 6 October 2024. The parties could not agree
on the dates the minor child should spend with them during this September holidays.
In contemplation that the child will spend the entire holiday with her, the applicant
bought a return flight ticket for the son to fly from Durban to C ape Town on 21
September 2024 at 09h00.
[6] The respondent, on the other hand, asserted that the applicant was aware
that the contact with the minor child was in dispute and that her unilateral decision to
hijack the entire holiday with the minor child w as not with his consent. Despite the
lack of agreement between the parties, the respondent asserted that the applicant
proceeded to book flights for the minor child on her terms and disregarded his
wishes to spend half of the holiday with the minor child. The respondent further
stated that the applicant insists on exercising contact with the minor child for the
entirety of the holidays, notwithstanding that he had tendered that they share the
holidays as co-holders of parental rights and responsibilities.
[7] Significantly, the respondent raised two preliminary points. The respondent
asserted that this Court does not have jurisdiction to hear this matter, and that this
application should be dismissed with costs for lack of urgency. In his answering
affidavit, the respondent drew the court's attention to a letter addressed by the
respondent's attorney to the applicant's legal representative on 19 September 2024,
shortly after receiving the urgent application advising him of the fatal error in this
application. In the correspondence, the applicant's representative was given an
opportunity to withdraw the application by no later than 11h45 on 19 September
2024, failing which the respondent's legal representative stated that he would
appoint Counsel to appear in court and seek a punitive cost order against him.
[8] The second preliminary point raised by the respondent is that this matter is
not urgent. The respondent stated that the applicant's behaviour is appalling.
According to the respondent, the applicant ignored multiple requests dating back to 8
August 2024, to confirm whether she intended to have contact with the minor child
during the September and October ho lidays. It is further the respondent's contention
that despite his tender for one week of the school holidays, the applicant unilaterally
decided that she would exercise contact with the minor child for the entire school
holiday, knowing very well that he intended to share holiday contact with the minor
child. The respondent is open to having the child spend half of the holidays with the
applicant and another half with him.
3. Principal submissions by the parties
[9] At the hearing of the application, Ms Naidoo, the applicant's Counsel,
submitted that this Court has jurisdiction to hear the matter. Counsel submitted that
this court enjoys inherent jurisdiction to hear the matter as the upper guardian of
minor children, particularly since there is currently no parenting plan between the
parties regulating the question of care and contact. Counsel sought to pray in aid of
this argument the decision in J v J 2008 (6) SA 30 (CPD), where the court stated that
the best intere st of the child should not be sacrificed on the altar of jurisdictional
formalism.
[10] Furthermore, Ms Naidoo submitted that there will be no prejudice if this court
hears the matter as the respondent has filed the relevant answering affidavit and that
the Family Advocate has not opposed the relief sought in respect of the minor child.
Counsel also relied on section 34 of the Constitution, which guarantees the right of
access to courts. Ms Naidoo further submitted that the respondent has the minor
child in his care daily and should allow the applicant to spend the whole School
holiday with the child. Counsel further submitted that the matter is urgent, particularly
in that it involves the interest of a minor child. Ms Naidoo implored the court to grant
the relief sought in the notice of motion.
[11] On the other hand, Ms De Wet, the respondent's Counsel, submitted that this
court does not have jurisdiction to hear the matter. Counsel submitted that the minor
child is in Durban, outside the jurisdiction of this court. According to Ms De Wet, it
would have been a different case if the minor child had been in the Western Cape,
even if it had been on a temporary basis. Counsel also submitted that the applicant
sought an order to implement the draft parenting plan attached to the application
immediately. Ac cording to Ms De Wet, the implementation of the parenting plan
sought by the applicant falls within the purview of section 22(4)(b) of the Children's
Act.
[12] Furthermore, it was Ms De Wet ’s submission that the prayer the applicant
seeks that the respondent must be compelled to allow the minor child to travel to
Cape Town on 21 September 2024 and to remain in the care of the applicant falls
squarely within the extension of rights envisaged in section 28(1) of the Children’s
Act. Ms De Wet contended that this Court cannot invoke its inherent jurisdiction in a
case where its jurisdiction is excluded by a statute. To this end, Counsel relied on
the decision of the Constitutional Court in South African Broadcasting Corporation
Limited v National Director of Prosecution and Others 2007 (1) SACR 408 (CC) para
91, where the court noted that the power in section 173 of the Constitution is not an
unbounded additional instrument to limit or deny vested entrenched rights.
[13] Counsel submitted that the inherent power to regulate and control its process
and to preserve what is in the interest of justice does not translate into judicial
authority to impinge on a right that has otherwise vested or has been conferred by
the Constitution. Ms De Wet argued that this court does not have jurisdiction to hear
this matter and cannot use its inherent jurisdiction to clothe itself with jurisdiction to
hear this matter. On the question of urgency, Ms De Wet submitted that the applicant
knew as of 8 September 2024 that there was a dispute on the sharing of these
holidays but did nothing. According to Counsel, the urgency herein was self -created.
Ms De Wet implored the court to dismiss this application with costs.
4. Issues to be decided
[14] This court is enjoined to consider two issues. First, whether this matter is
urgent as envisaged in Rule 6(12) of the Uniform Rules and Second, whether this
court has jurisdiction to hear this application notwithstanding that the child currently
resides in Durban.
5. The Applicable Legal Principles and Discussion
[15] For convenience, I will consider the question of jurisdiction first, as it is central
to this application. The jurisdiction o f the High Court in its most basic form is
regulated by section 21 of the Superior Courts Act 10 of 2013 ("the Superior Courts
Act"). (see Degueldre v Companies and Intellectual Property Commission (211/23)
[2024] ZAWCHC 222 (22 August 2024) para 52). Of p articular importance in this
case are the provisions of section 21 (1) and (2) of the Superior Courts Act, which
provides as follows:
“(1) A division has jurisdiction over all persons residing or being in, and in
relation to all causes arising and all offences triable within, its area of
jurisdiction and all other matters of which it may according to law take
cognisance…”
(2) A Division also has jurisdiction over any person residing or being outside
its area of jurisdiction who is joined as a party to any cause in relation to
which such court has jurisdiction or who in terms of a third -party notice
becomes a party to such a cause, if the said person resides or is within the
area of jurisdiction of any other Division…”
[16] Simply put, section 21 of the Superior Courts Act clothed a division of the
High Court of South Africa with jurisdiction over all persons residing or being in, and
in relation to all causes arising within its area of jurisdiction. A Division also has
jurisdiction over any person residing or being outside its area of jurisdiction who is
joined as a party to any cause in relation to which such Court has jurisdiction.
[17] In JS v WF (63698/13) [2020] ZAGPPHC 350 (10 July 2020) , the court stated
that the starting point of any discussion regarding the issue of jurisdiction should be
the Supreme Court of Appeal decis ion in Hugo v Vessels [1987] 2 AII SA 290 (A)
para 8, where the court stated that a court can only be said to have jurisdiction in the
matter if it has the power not only of taking cogni sance of the suit, but also of giving
effect to its judgment. As a result, to answer the question as to whether a Court has
the necessary jurisdiction to adjudicate a matter a two -fold inquiry must be
undertaken. The first is to determine whether the Court is at all empowered to take
cognisance of the suit, and the answer to this question will depend on the existence
of one or more of the acknowledged grou nds for jurisdiction, the rationes
jurisdictionis. This in turn, is dependant and informed by the nature of the litigation
before the Court. The second question can only be answered with reference to the
doctrine of effectiveness and the Court's power to enforce its order.
[18] While r ecently, in Degueldre v Companies and Intellectual Property
Commission (211/23) [2024] ZAWCHC 222 (22 August 2024 ) para 52 , Henney J ,
writing for the full court on the question of jurisdiction, relied on Veneta Mineraria
Spa v Caroline Collleries (Pty) Ltd 1987 (4) SA 883 (AD) at 886 H -J, where the
Appellate Division, as it then was, stated that there is a distinction between the so -
called grounds of jurisdiction by virtue of which a court would normally have ipso jure
jurisdiction and jurisdiction by virtue of which jurisdiction is conferred on a court.
Where the court would normally have ipso ju re jurisdiction, these are threefold:
firstly, by virtue of the defendant's domicile being in that court's jurisdiction; secondly,
by virtue of the contract having been entered into in that the court's jurisdiction or
performed in the court's jurisdiction. Lastly, by virtue of the subject matter in an
action being situated in the court's jurisdiction. In cases where jurisdiction is
conferred upon a court is where there is an order of attachment of the goods or
arrest of a person. And finally, where a party consents to the jurisdiction of that court.
[19] Reverting to this matter, section 29 of the Children's Court provides that an
application in terms of section 22(4)(b), 23, 24, 26(1)(b), or 28 may be brought
before a High Court, a Regional Court in a divorce matter or a Children's Court' as
the case may be, within whose area of jurisdiction the ch ild concerned are ordinarily
resident. Section 29(1) confers jurisdiction on the High Court, a Regional Court
dealing with a divorce matter, and the Children's Court in relation to making a
parental responsibilities and rights agreement an order of court, court-assigned
contact and care, court -assigned guardianship, an order confirming paternity and
paternity, and suspension, termination, extension or circumscription of parental
responsibilities and rights.
[20] In my view , the applicant’s case falls within the purview of section 28(1)(b).
Section 28 provides that:
“(1) A person referred to in subsection (3) may apply to the High Court, a
Regional Court in a divorce matter or a Children’s Court for an order -
(a) suspending for a period, or terminating, any or all of the parental
responsibilities and rights which a specific person has in respect of a
child; or
(b) extending or circumscribing the exercise by that person of any
or all of the parental responsibilitie s and rights that person has in
respect of a child
…
(3) An application for an order referred to in subsection (1) may be brought -
(a) by a co-holder of parental responsibilities and rights in respect of
the child;
(b) by any other person having a sufficient interest in the care,
protection, well-being or development of the child;
(c) by the child, acting with leave of the court;
(d) in the child’s interest by any other person, acting with leave of
the court; or
(e) by a family advocate or the representative of any interested
organ of state…”
[21] Section 19 of the Children's Act confers full parental responsibilities and rights
in respect of a child on the biological mother of the child. Section 20 confers full
parental responsibilities and rights in respect of a child on the biological father of the
child who was married to the child's mother at the time of the child's conception or
birth or any time in between. It is, therefore, incontestable that in terms of s ections
19 and 20 of the Children's Act, the applicant and the respondent both hold full
parental rights and responsibilities in respect of the minor child: they are both co -
holders of parental responsibilities and rights.
[22] As co-holders of parental rights and responsibilities, they have the
responsibilities and rights set out in s ection 18 of the Children’s Act. Section 18
envisages that a person may have either full or specific parental responsibilities and
rights in respect of their child. The minor child in the present matter has been in th e
care of both parties ever since he was born until th e parties separated in June 2024
when the applicant relocated to the Western Cape. The child currently resides with
the respondent in Durban, and the applicant has reasonable contact with the child.
[23] Ever since the applicant relocated to Cape Town, in the Western Cape, in
June 2024, she has been exercising contact with the minor child, amongst others,
through video calls and text messages. The applicant stated that she last saw the
minor child between 22 and 28 July 2024 and has not seen him nor spent time with
him since then. The applicant assert ed that the respondent has daily in -person
contact with the minor child, while she is only able to have contact with the minor
through video calls. The applicant also asserted that in the absence of a clear
parenting plan, the respondent would seemingly continue to be obstructive, hence
the need for an interim parenting plan. To this end, the applicant attached an
unsigned draft parenting plan, which she implored the court to endorse and
implement.
[24] In my view, in addition to the prayer for the implementation of the draft
parenting plan, the applicant seeks an order that her parental rights and
responsibilities be extended as envisaged in section 28(1)(b) so that she can
exercise close contact with her chil d who is currently in Durban during the
September – October school holidays. The applicant seeks an order for the child to
come and spend time with her in the Western Cape during the Siring holidays.
Section 28(1)(b) authorises the extension of a person's exercising of any or all his or
her parental responsibilities and rights. In other words, the court can either give a
person who already has parental responsibilities and rights additional parental
responsibilities and rights, or it can delineate the paren tal responsibilities and rights
the person has.
[25] In considering this application, the minor child's best interests remain the
yardstick against which everything must be measured. Shawzin v Laufer, 1968 (4)
SA 657 (AD) 662G -H. It is the paramount consideration. Section 28(4) of the
Children’s Act enjoins a court w hen considering an application such as this, to take
into account:
(a) the best interests of the child;
(b) the relationship between the child and the person whose parental
responsibilities and rights are being challenged;
(c) the degree of commitment that the person has shown towards the
child; and
(d) any other fact that should, in the opinion of the court , be taken into
account. (my emphasis)
[26] Section 28(2) of the Constitution underscores the paramountcy of the child's
best interests. It provides that a child's best interests are of paramount importance in
every matter concerning the child. Section 2 8(2) has been interpreted as creating an
'expansive guarantee' and constitutes not only a guiding principle but also a right. (S
v M (Centre for Child Law as Amicus Curiae) 2008 (3) SA 232 (CC) para 22). The
principle of the best interests of the child has also been incorporated in section 9 of
the Children's Act 38 of 2005. The importance of protecting the best interests of
minor children lies partly in the fact that they are a vulnerable group of people that
make up a large constituent part of our society. However, they lack the means to act
in their own interests. (RMD v KD (16995/22P) [2023] ZAKZPHC 2 (13 January
2023) at para 24).
[27] Whilst I appreciate the paramountcy of the child’s best interest, I do not
understand this right to trump over a court’s jurisdictional competence or capacity to
hear a matter. I also do not understand this right to be giving a court jurisdiction
where Parliament has, in its infinite wisdom, explicitly excluded such jurisdiction in
legislation. Expressed differently, where there is legislation excluding the court's
jurisdiction, in my view, this Court cannot use its inherent jurisdiction or invoke the
child's best interest principle to lay claim over a matter. This Court has the power to
exercise its inherent jurisdiction when no law directly provides for a given situation.
(See Ex Parte Millsite Investment Co Pty Ltd 1965 (2) SA 582 (T) at 585 G-H).
[28] In the present matter, section 29 serves as an overriding determinant of
jurisdiction in circumstances where a Court is called upon to extend, suspend or
circumscribe a parent's parental rights and responsibilities. In my view, this Court
cannot entertain an application instituted in terms of section 28 in which its
jurisdiction is explicitly excluded by section 29 of the Children’s Act in instances
where the minor child concerned is not ordinarily resident in its jurisdiction, even if by
consent between the parties.
[29] In N v N; In re N (2425/16) (2017] ZAECPEHC 61 (14 December 2017), the
court noted that the terms of section 29 are clear and unambiguous and, serve as an
overriding determinant of jurisdiction in circumstances where a Court is called upon
to extend, terminate, suspend or circumscribe the parental rights and responsibilities
of a parent. Goosen J, as he then was, noted that the requirement is that the min or
child must be ordinarily resident within the area of jurisdiction of the Court. This
is a territorial limitation of jurisdiction.
[30] While in Ceronio v Snyman 1961 (4) SA 294 (W) , it was held that although a
Court with the necessary jurisdiction to a djudicate divorce proceedings between
parties could make an order relating to the custody of a child, only the Court having
jurisdiction in respect of the place where the child happened to be at the time, had
the jurisdiction to order that the child be han ded over to the parent to whom custody
was awarded. Marais J explained:
"The reason is that, although a Court might decide that, as between the two
parents, one of them is entitled to the custody of the minor child, and make a
declaratory order to that e ffect, the only proper forum for deciding whether or
not the child should be entrusted to either of its parents and, if so, subject to
what safeguards as to the child's welfare, is the Court which exercises the
upper guardianship over the child, i.e. the C ourt in whose jurisdiction the child
is. The upper guardian has to determine the child's position, irrespective of the
rights of the parents inter se, in accordance with what appears to be in the
best interest of the child."
[31] As previously stated, section 29 of the Children Act statutorily excludes the
jurisdiction of this Court from hearing applications in terms of section 28 of the Act,
where minors are not ordinarily residents in the Court's area of jurisdiction. As a
result, this Court, in my view, does not have the jurisdiction to consider granting the
relief that will amount to an extension of the applicant's current parental
responsibilities and rights, as this application was instituted in this Court without the
minor ch ild being ordinarily resident in the Court's area of jurisdiction. Only the
KwaZulu Natal High Court, where the child is ordinarily resident within its territorial
jurisdiction, has jurisdiction to hear the applicant's application. Notably, the divorce
proceedings between the parties, addressing the issue of care and contact, are
pending before the KwaZulu Natal High Court.
[32] Pursuant to the view I take, I deem it unnecessary to consider the issue of
urgency. Additionally, Ms De Wet also informed the court that regardless of the
outcome of this application, the respondent still wishes to spend half of the holidays
with the chil d, while the applicant would have the child for the remaining half of the
holidays. Notwithstanding the court’s decision on this application, it is my heartfelt
plea to both parties to prioriti se their child's best interests consistently and to refrain
from allowing their disagreements to overshadow their judgment.
6. Order
[33] Consequently, the applicant’s application is h ereby dismissed, and the
applicant is ordered to pay costs on Scale A.
_________________________
LEKHULENI JD
JUDGE OF THE HIGH COURT
APPEARANCES
For the applicant: Adv Naidoo
Instructed by: Hanekom Attorneys
For the Respondent: Adv De Wet
Instructed by: Strauss Daly Attorneys