REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)

CASE NO: 2024-147933

In the matter between:

TJS Applicant

And

MNM Respondent

Date Heard: 17 December 2024
Delivered: Electronically on 24 December 2024
__________________________________________________________________

JUDGMENT
__________________________________________________________________

LEKHULENI J

Introduction

[1] This is an application in terms of Rule 6(12)(c) of the Uniform Rules for the
reconsideration of an order granted by the urgent court on 13 December 2024
against the respondent in which the court ordered the respondent to remain present
in the greater City of Cape Town until the finalisation of proceedings in the

Magistrates Court, alternatively, any other application that may be made for the
removal of the minor child from the Western Cape and or the Republic of South
Africa. In addition, the r espondent was ordered not to remove the minor child from
the Republic of South Africa without an order of this court or the consent of the
applicant. The respondent was further ordered to return the minor child, ATNM from
Pretoria to Cape Town within three days of granting the said order and no later than
17 December 2024.

[2] Upon receipt of the order , the respondent, brought an urgent application in
terms of Rule 6(12)(c) of the Uniform Rules in which she sought an order that the
interim order directing her to return the child to Wynberg in the Western Cape be
reconsidered and set aside. The respondent asserted that the applicant in the main
application did not satisfy the requirements of urge ncy and that the court did not
have jurisdiction to hear and grant the order directing her to return the child to Cape
Town. To this end, the respondent requested the court to reconsider and set aside
the order issued on 13 December 2024.

Background Facts

[3] The applicant and the respondent were involved in a romantic relationship
and have a minor child named AT NM, born on 10 August 2023 in Claremont, Cape
Town, out of such a relationship. The child is currently in the primary care of the
respondent. The applicant and the respondent had problems regarding the
applicant’s exercise of his access rights to the minor child. Subsequent thereto, the
applicant approached the Wynberg Children’s Court for assistance. The parties were
then referred to the Cape Town Child Welfare Society for mediation.

[4] Mediation took place. As a result of the mediation, the Wynberg Children’s
Court made an interim order on 5 July 2024 in which the applicant was granted video
call access to the minor child every Monday, Wednesday, Friday and Saturday
between 20h00 and 21h00. The applicant was also granted supervised contact with
the child for 1 -2 hours, and the parties were directed to communicate via WhatsApp
regarding the arrangements in terms of this order. The matter was postponed to 13
September 2024.

[5] On the second return date, 13 September 2024, the interim order of 5 July
2024 was amended. The Children’s Court ordered the applicant to exercise
supervised contact with the minor child every alternate Saturday for two hours during
the first month. The court also ordered unsupervised contact with the child every
alternate Saturday for two hours during the second month and video calls with the
child every Monda y, Wednesday, Friday and Saturday between 20h00 and 21h00.
The parties were further directed to communicate via WhatsApp regarding the
arrangements concerning this order. A new court date was scheduled for 11
December 2024.

[6] In the main application, the applicant stated that in November 2024, the
respondent requested permission to take the minor child to her family in Swaziland
during December 2024. However, the respondent did not mention any plans to move
to Pretoria. The app licant refused the respondent's request to take the child to
Swaziland. The applicant asserted that his decision was informed by the fact that the
respondent started interfering and, at times, refused him contact with the minor child.
According to the applicant, the main reason for his refusal was that the court had set
a date for the parties to return to court on 11 December 2024.

[7] The respondent subsequently approached the court clerk and requested
assistance for consent to take the child to Swaziland in December 2024 to visit her
relatives. She was informed that she needed to file a separate application with the
court. During this time, the respondent took the minor child f rom the Western Cape
and traveled to Pretoria without the applicant’s consent.

[8] In her application for reconsideration, the respondent asserts that following
their appearance in the Wynberg court, she communicated her ongoing financial
struggles to the applicant. As a result, she informed the applicant that she may need
to relocate back to her family (home) in Pretoria, where she would be financially
assisted by her family and have a support system. The respondent further asserted
that before her depar ture, she informed the applicant that she could no longer
sustain her stay in Cape Town and would be relocating back home to Pretoria. She
provided the applicant with an address so he could visit the minor child. The
respondent stated that she managed to secure employment in Pretoria, which she is
scheduled to start in January 2025.

[9] The respondent further asserted that she always rented her place in Cape
Town and took care of her financial responsibilities. She also averred that she does
not have the means to remain in Cape Town as she no longer has a place to stay.
According to the respondent, the financial responsibilities of living in Cape Town
became too much for her to handle, especially now that the minor child is entirely her
responsibility while the applicant contributes only sporadically. She is currently based
in Pretoria and does not have the means to relocate to Cape Town and secure
accommodation. In terms of Rule 6(12)(c), she sought an order that the order
granted on 13 December 2024 be reconsidered and set aside.

Principal Submissions by the Parties

[10] Mr Tyaliti, the respondent ’s Counsel, submitted that the court did not have
jurisdiction to grant the order on 13 December 2024 as the respondent and the minor
child reside in Gauteng outside the area of jurisdiction of this court. Counsel
submitted that this court had no jurisdiction as the respondent lived in Gauteng from
the first week of November 2024. Mr Tyaliti further argued that the Wynberg order did
not allow the respondent to remain in Cape Town for the applicant's convenience.
The applicant can still contact the minor child by visiting him in Pretoria.

[11] Mr Tyaliti contended that the respondent has the right to work and live
wherever she likes. The respondent has no financial means for acco mmodation and
neither did the applicant provide the same. The respondent will be prejudiced if the
order is not set aside, as she cannot afford to travel to Cape Town and find
accommodation. Counsel contended that the respondent had secured employment
in Pretoria. According to Mr Tyaliti, t he respondent wants the applicant to return to
the Cape for his convenience. Counsel implored the court to grant the relief sought in
the notice of motion.

[12] On the other hand, Mr Basson, the applicant’s Counsel subm itted that this
court has jurisdiction. The child and the applicant were residing in the Cape, and the
court retained jurisdiction over them. Mr Basson further submitted that the
respondent breached the court order made in the Wynberg Children’s Court.
Counsel argued that court orders must be obeyed. Mr Basson further argued that the
respondent must comply with the order that granted the applicant visitation rights. It
is impractical for the applicant to have physical contact with the minor child while the
child is in Pretoria. Counsel submitted that the assertion that the applicant can visit
the child in Pretoria at any time is unreasonable.

[13] The applicant’s Counsel submitted that by taking the child to Pretoria, the
respondent, in a way, severed the applicant’s rights of contact with the child. Counsel
contended that the court agreed with the applicant's request on 13 December 2024.
The applicant wants the respondent to comply with the court order. The order was
made to ensure that the father sees the child. According to Mr Basson, the
respondent did not place anything before the court to show that she could not afford
to live in Cape Town. If the court were to order that the respondent stays in Pretoria,
Counsel argued, the court would be endorsing a breach of the court order. It was
submitted that the respondent has family in Cape Town and did not indicate why she
cannot live with the said family. Mr Basson applied f or the dismissal of the
reconsideration application with costs.

Issues In Dispute

[14] There are two relevant issues that this court must consider. First, this court
must determine whether the urgent court had jurisdiction to grant the court order,
which it did, although the respondent relocated and resides in Gauteng. Secondly,
whether this court should reconsider and set aside the interim order directing the
respondent to return to the Western Cape with the minor child?

Discussion

[15] For completeness, I will first consider the respondent's jurisdictional point
before considering the merits of her application.

Did the urgent court have jurisdiction to hear the matter?

[16] The jurisdiction of 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 particular 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 cau se, if the said person resides or is within the
area of jurisdiction of any other Division…”

[17] Section 21 of the Superior Courts Act provides, inter alia, that this Court shall
have jurisdiction over all persons residing in its area of jurisdiction. 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. (see YC v JRC (20375/2024) [2024]
ZAWCHC 273 (20 September 2024) at para 16). 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.

[18] The time for determining the jurisdiction of the Court to entertain an action, is
the time of the commencement of the action. (Thermo Radiant Oven Sales (Pty) Ltd
v Nelspruit Bakeries (Pty) Ltd 1969 (2) SA 295 (A) at 310D - E.). In determining
whether a person can be regarded as residing within the court's area of jurisdiction
for the purpose of Section 21 of the Superior Courts Act, the court must employ a
pragmatic and realistic approach. This evaluation should adequately consider all
pertinent circumstances associated with the case at hand.

[19] When it is stated that an individual resides at a particular location, it is clearly
understood to mean that this location serves as his home his primary place of
residence where he typically sleeps following the completi on of his daily activities.
The time when an application is regarded as having been instituted, for the purposes
of jurisdiction, is when the application papers are served. (See Mills v Starwell
Finance (Pty) Ltd 1981 (3) SA 84 (N); Mayne v Main 2001 (2) S A 1239 (SCA) at
1243C).

[20] As discussed above, t he respondent impugned the jurisdiction of this court.
The respondent disputes that she was resident in the area of jurisdiction of this Court
at the time of the service of the application. Mr Tyaliti argued that the respondent
relocated permanently to Gauteng in November 2024 with the minor child. According
to the respondent, when the application was issued and served , the respondent was
already a resident of Gauteng. Counsel submitted that this court does not have
jurisdiction over this matter as the respondent does not reside within the jurisdiction
of this court.

[21] It is trite that t he onus of establishing juris diction based on the respondent's
residence rests on the applicant . (Terblanche NO and Others v Damji and Another
2003 (5) SA 489 (C). Simply put, the applicant must prove in this case that the
respondent is ordinarily resident within the area of jurisdiction of this court. In
establishing territorial jurisdiction, there are several factors which must be
considered, each of which may go some way towards proving that residence has
been established. Significantly, a presence which is merely fleeting, or transient
would not satisfy the requirement for residence; some greater degree of permanence
is necessary.

[22] The Supreme Court of Appeal (‘SCA’) in Mayne v Main (supra) approved the
basic principles which govern a matter such as the present as set out in Ex parte
Minister of Native Affairs 1941 AD 53. The court summarised the principles as
follows at 1243A-E of the judgment:

“(1) In giving a court statutory jurisdiction over a person who resides in its
area the Legislature has simply followed the common -law rule actor sequitur
forum rei.

(2) The question is not one of domicile but of residence. A defendant may
have his domicile at one place and his residence for the time being at another.

(3) A person can have more than one residence. Where that is the case, he
(or she) must be sued in the court having jurisdiction at the place where he is
residing at the time when the summons is served.

(4) A person cannot be said to reside at a place where he is tempo rarily
visiting. Nor does a person cease to reside at a place even though he may be
temporarily absent on certain occasions and for short periods.

(5) Apart from the above, the Courts have studiously refrained from
attempting 'the impossible task' of giv ing a precise or exhaustive definition of
the word 'resides'. Whether a person resides at a particular place at any given
time depends upon all the circumstances of the case seen in the light of the
applicable general principles.”

[23] In addition to these principles, the S CA held that although a person may have
more than one residence for the purposes of jurisdiction, a person can only be
residing in one place at any given moment (at 1243F). The court held that for the
purposes of jurisdiction our Courts do not recognise the concept of a vagabundus. A
person must reside somewhere (at 1249B). A person's intention is not necessarily
conclusive. The objective facts must be looked at to decide the question of factual
residence (at 1248I - J).

[24] Regarding the meaning of residence, the S CA (at 1243F -I) embraced three
definitions of residence as being amongst the more appropriate definitions thereof.
They are the following:

“(a) It has never been laid down what degree of permanence is requi red in
residence, but at all events it ought to be shown that the person sought to be
brought within the jurisdiction had some interest in the place which he was
served, in the sense that there was some good reason for regarding it as his
place of ordinar y habitation at the date of service.( Hogsett v Buys 1913 CPD
200 at 205.)

(b) When it is said of an individual that he resides at a place it is obviously
meant that it is his home, his place of abode, the place where he generally
sleeps after the work of the day is done.

(c) In Tick v Broude and Another 1973 (1) SA 462 (T) at 469F-G it was said
that residence is a concept which conveys 'some sense of stability or
something of a settled nature.”

[25] In applying the principle discussed above to the facts of this case, I am of the
opinion that at the time the applicant’s application were served upon the respondent
through WhatsApp, the respondent was not a resident of the Western Cape. The
respondent wa s permanently resident in Haymeadow Crescent, Pretoria. The
following reasons bear this out:

[26] The applicant was struggling in the Western Cape. She asserted in her
affidavit that she does not have the means to remain in Cape Town as she no longer
has a place to stay. Her financial responsibilities in Cape Town became more than
she could handle, esp ecially with the minor child being her full responsibility.
According to her, the applicant only contributed when he wanted to. The
respondent’s family lives in Pretoria. The respondent stated that she left Cape Town
to relocate permanently to Pretoria, wh ere her family would provide a support
structure. On the facts , her move to Pretoria was meant to be permanent, not just
temporary.

[27] Most importantly, the respondent informed the applicant that she was
struggling financially and could not keep up wit h the financial needs of staying in the
Western Cape. She subsequently relocated to the Gauteng Province. Following her
relocation, the respondent secured employment in Gauteng and is scheduled to
commence her position at the beginning of January 2025.

[28] The respondent and the minor child are in Gauteng. When the application was
issued and served upon the respondent, the respondent was in Pretoria, Gauteng.
The respondent’s residence in Pretoria cannot be said to be transient or for a fleeting
moment. The respondent intends to live and work in Pretoria. The applicant did not
dispute that the respondent obtained new employment in Pretoria. According to the
applicant, the respondent simply transferred within the Virgin Active Group, so her
salary would remain the same.

[29] In my opinion, the respondent has demonstrated a stronger degree of
permanent residence in Pretoria. Therefore, this court lacks jurisdiction as the
respondent and the minor child do not live within its jurisdiction. In Ceronio v Snyman
1961 (4) SA 294 (W) at 297H, the court stated that the only proper forum for deciding
whether or not a 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 exercis es the upper
guardianship over the child, that is, the Court in whose jurisdiction the child is. (See
Martine v Large 1952 (4) SA 31 (W).

[30] The argument by Mr Basson that this court retains jurisdiction is erroneous
and unsustainable. I am mindful tha t once jurisdiction is established, it continues to
exist until the end of the action, even though the ground upon which the jurisdiction
was established ceases to exist. McConnel v McConnel 1981 (4) SA 300 (Z) at
302B-C.

[31] However, it bears emphasis that th ere is no pending matter or a court order
between the applicant and the respondent in this court. There are no court
proceedings between the applicant and respondent in this court that would grant this
court the continuance of jurisdiction. The case between the parties is pending in the
Children’s Court in Wynberg. That court , in my view , retains jurisdiction to hear the
custodial dispute between the parties even after the relocation of the respondent to
Pretoria. It would have been a differ ent case if the care and contact dispute
proceedings were pending in this court.

[32] In my view, the doctrine of the continuance of a court’s jurisdiction, once such
jurisdiction is established at the commencement of proceedings, does not apply
where the jurisdiction was established in another court (the lower court in this case)
and the subsequent proceedings between the same parties are instituted in the High
Court after the respondent and the child have left the area of jurisdiction of the High
Court. The continuance of the Children’s Court's jurisdiction does not extend to
include this court's jurisdiction. Consequently, this court d id not have jurisdiction to
hear the applicant’s application.

[33] Even if am wrong in my finding, the relocation of the respondent to Pretoria is
based on genuine and reasonable grounds. In considering whether the decision of
the respondent to relocate to Pretoria is in the best interests of a child, the court has
to con sider the circumstances of the respondent, who is the primary carer of the
child, the reasonableness of her decision to relocate, other practical consideration on
which the decision is based and the extent to which the advantages and
disadvantages of the r elocation on the child have been thought through. Our courts
have consistently recognised and will not lightly interfere with the right of a primary
carer of children who has properly been awarded custody to choose in a reasonable
manner how to order his o r her life. (KM v JW (95071/2016) [2018] ZAGPPHC 610
(26 January 2018) at para 11).

[34] As mentioned earlier, the reasons for the respondent leaving the Western
Cape cannot be ignored. These reasons were not presented to the urgent court
when the interim order was granted. The respondent stated that she informed the
applicant about her financial struggles and her intention to relocate back to Pretoria,
where she could receive financial assistance and support from her family. She has
obtained employment in Pretoria, with a start date scheduled for January 2025. The
respondent has asserted that the applicant has made minimal contributions toward
the maintenance of the minor child. Additionally, the respondent indicated that the
applicant has not contributed to her rent, municipal rates, or utility expenses.

[35] In his answering affidavit to the reconsideration application, the applicant
admitted that the respondent informed her that she was struggling and facing
financial difficulties. The applicant disputed that the respondent informed him that
she intended to relocate to Pretoria. In my opinion, t he respondent's intention to
relocate to Pretoria is both sincere and legitimate. The circumstances of this case
indicate that she can no longer afford to reside in Cape Town, as she currently lacks
stable housing. The financial obligations associated with living in Cape Town have
become excessively burdensome, particularly given that she is now responsible for
the care of the minor child.

[36] The respondent asserts that the applicant only provided financial contributions
at his discretion. While the applicant contests this assertion, it is important to note
that there is currently no maintenance order against the applicant for the child’s
support. Further more, the applicant requests that the respondent return to the
Western Cape despite the financial difficulties the respondent is currently facing. The
applicant did not offer to assist the respondent with the rental payment and rates.
The applicant’s couns el argued that the respondent should reside with her aunt in
Wynberg. I do not agree with this suggestion.

[37] It is essential to emphasise that when a custodial parent seeks to relocate, a
court will not lightly refuse permission for the children to leave a particular province if
the decision made by the custodial parent is demonstrated to be genuine, bona fide,
and reasonable. (see JP v JC [2016] 1 AII SA 794 (KZD) at para 36). Furthermore, in
this case, the child is still relatively young and entirely dependent on the respondent.
A supportive structure in Pretoria will enhance the respondent’s ability to care for the
child, who is one year and four mon ths old and continues to be breastfed. In my
opinion, the respondent’s relocation is not motivated by a desire to frustrate the
applicant. On the contrary, this relocation serves the best interests of the child.

[38] I appreciate that the applicant may no t enjoy reasonable contact with his child
as he would if the respondent is in the Western Cape. Unfortunately, that is the
nature of separation of parenting or cohabitation that does not endure throughout a
child’s life. That is the fate of a child whose p arents do not live together. In DB v LW
2020 (1) SA 169 (GJ) at para 52, Satchwell J stated:

“The solution of our courts can never be to order that separated parents must
live in close proximity to each other in order that each parent lives in close
proximity to a child. Our courts have not been appointed the guardians of
adults, and parents are not the prisoners of our courts.”

[39] As previously stated, the fact that the respondent was struggling financially to
live in Cape Town was not mentioned before the urgent court that granted the interim
order. In my view, had this information been placed before that court, it would not
have granted the order as it did. Notwithstanding the jurisdictional finding above, I
believe that the family advocate must investigate the matter so that the Wynberg
Children’s Court may consider their recommendations and, if necessary, incorporate
them into the order dealing with the respondents’ contact with the minor child.

Order

[40] In the result, the following order is granted:

40.1 The interim order granted on 13 December 2024 is hereby
reconsidered and set aside.

40.2 The court did not have jurisdiction to hear the main application.

40.3 The office of the family advocate is hereby directed to expeditiously
investigate the child's best interest and submit their report to the Children’s
Court in Wynberg.

40.3 Each party is ordered to pay its own costs.


_________________________
LEKHULENI JD
JUDGE OF THE HIGH COURT

APPEARANCES

For the applicant: Adv Basson
Instructed by: Johan Victor Attorneys

For the Respondent: Adv Tyaliti
Instructed by: Nkohla and Partners Inc