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

Case No: 2025-076576

In the matter between:

N[...] T[...] R[...] - F[...] Applicant

and

J[...] A[...] L[...] Respondent

JUDGMENT DELIVERED ELECTRONICALLY ON 18 AUGUST 2025

SARKAS AJ:

INTRODUCTION

[1] For convenience, the parties are cited as in the main application.

[2] The main application was directed at securing the respondent’s co -operation
in an assessment to be undertaken by the applicant’s appointed expert, Dr
Basil Carnie, regarding whether the applicant’s intended relocation to the
United States of America serves the best interests of the minor child born of
their erstwhile relationship.

[3] The respondent seeks leave to appeal to the Supreme Court of Appeal,
alternatively the full bench, in terms of s 17 (1)(a)(i) and s 17 (1)(a)(i i) of
Superior Court’s Act 10 of 2013 ( the Superior Courts Act ), against the
judgment and order of this court directing that:

3.1. The respondent shall cooperate in the relocation assessment(s) that
may be undertaken by Dr Basil Carnie, and on reasonable notice of not
less than 7 (seven) days, shall make himself available for such
assessment(s) to be conducted and completed.
3.2. In the event that the applicant does not institute an application for leave
to remove the parties’ minor child from the Republic of South Africa in
order to relocate to the United States of America on a
permanent/temporary basis (togethe r with any ancillary relief) by no
later than 30 (thirty) days after the date of the granting of the Order, the
Order in paragraph 2.1 above shall fall away.
(the Order)

GROUNDS OF APPEAL

[4] In summary, the respondent’s grounds of appeal are that this court erred in:

4.1. Not striking the main application for lack of urgency.
4.2. Not upholding the respondent’s in limine points of (a) lis alibi pendens,
in that the issues raised in the main application are already the subject
of extant proceedings in the Children’s Court ; and (b) non-joinder, in
that Dr Carnie was not a party to the main application.
4.3. Not attaching sufficient weight to the directive issued in the Children’s
Court proceedings requiring that the Office of the Family Advocate

report on the issues of care and contact in respect of the minor child ,
which report the Family Advocate had not yet delivered , and the fact
that the main application had not been served on the Office of the
Family Advocate.
4.4. Granting interdictory relief when the requirements for an interdict had
not been met.
4.5. Directing that the applicant bring an application for relocation within 30
days when such order is not ‘allowed’.
4.6. Directing that the respondent cooperate with an expert in proceedings
that were not before court.

THE TEST FOR LEAVE TO APPEAL

[5] Section 17(1) of the Superior Courts Act provides that:

‘17(1) Leave to appeal may only be given where the judge or judges
concerned are of the opinion that—
(a) (i) the appeal would have a reasonable prospect of success; or
(ii) there is some other compelling reason why the appeal should be
heard, including conflicting judgments on the matter under
consideration;…’

[6] The respondent contends that the appeal would have a reasonable prospects
of success in that another court will find merit in the argumen ts advanced by
the respondent, and that there is a compelling reason why the appeal should
be heard in that there are conflicting judgments on the matter of urgency.

[7] In MEC Health, Eastern Cape v Mkhitha , the Supreme Court of Appeal
explained:

‘[16] Once again it is necessary to say that leave to appeal, especially to this
court, must not be granted unless there truly is a reasonable prospect of
success. …

[17] An applicant for leave to appeal must convince the court on proper
grounds that there is a reas onable prospect or realistic chance of success on
appeal. A mere possibility of success, an arguable case or one that is not
hopeless, is not enough. There must be a sound, rational basis to conclude
that there is a reasonable prospect of success on appeal.’ 1

[8] The threshold for leave to appeal is relatively stringent to prevent meritless
appeals. A Court must be convinced on proper grounds that there is a
reasonable prospect or realistic chance of success on appeal. A mere
possibility of success is not enough. T here must be a sound, rational basis to
conclude that there is a reasonable prospect of success on appeal. 2

[9] If the court is unpersuaded of the prospects of success, it must still enquire
into whether there is a compelling reason to entertain the appeal. However,
the merits of the appeal ‘remain vitally important and are often decisive’.3

ANALYSIS

Urgency

[10] The first ground of appeal concerns the issue of urgency.

[11] In the respondent’s submission, this court was bound by the case of E.S and
Others v P.S and Another (16138/24) [2024] ZAWCHC 201 (12 August 2024)
(E.S. v P.S. ), where the court held that t he mere involvement of a child does
not automatically confer urgenc y on an application . The respondent further
submits that the main judgment conflicts with the case of MM v NM and
Others [2023] ZAKZPHC 117 (18 October 2023) ( MM v NM), which was cited
with approval in E.S. v P.S.. Reliance is also placed on the practice d irectives
of this court concerning urgent applications, which directives are subordinate

1 MEC for Health, Eastern Cape v Mkhitha 2016 JDR 2214 (SCA) paras 16-17.
2 Four Wheel Drive Accessory Distributors CC v Rattan NO 2019 (3) SA 451 (SCA) para 34.
3 Caratco (Pty) Ltd v Independent Advisory (Pty) Ltd 2020 (5) SA 35 (SCA) at para 2.

to, and cannot be applied to restrict or undermine, the Uniform Rules of Court.
4

[12] The main judgment contains detailed reasons for the determination that it was
in the interests of justice to deal with the matter out of the ordinary course ,
including that:

12.1. The Court in E.S. v P. S. stated that it is well -established in our
jurisprudence that matters involving the welfare of a child are often
regarded as inherently urgent.5
12.2. The applicant did not delay unduly when regard is had to the exchange
of correspondence between the parties regarding the proposed
assessment by Dr Carnie, including the detail provided in response to
the respondent’s various queries.
12.3. While the applicant may still obtain redress in an application in due
course, it may not be substantial.
12.4. The papers were complet e, and counsel on both sides had been
briefed to be prepared to argue the matter.

[13] The main judgment is not in conflict with the decision in E.S. v P.S. . In that
case, the court declined to the approach taken by Binns -Ward J in Xtraprops
(where the court, despite recognising a borderline case of urgency, proceeded
to hear the matter due to the completeness of the papers and the readiness of
counsel to argue the merits), because the context in E.S. v P.S. was
‘markedly different’.6

[14] There is also no conflict with the decision in MM v NM, which is referenced in
E.S. v P.S in relation to the question of self -created urgency. MM v NM is

4 See the discussion in Erasmus Superior Court Practice (online version, RS 25, 2024) at N1 -1, and
the authorities cited there.
5 E.S and Others v P.S and Another (16138/24) [2024] ZAWCHC 201 (12 August 2024) (E.S. v P.S.)
at para 21.
6 E.S. v P. S. at paras 25 -26, with reference to Xtraprops 66 (Pty) Ltd v Phiopater Supplies (Pty) Ltd
(20228/14) [2014] ZAWCHC 177 (25 November 2014).

distinguishable on the facts, and it is on the strength of those particular facts
that the court dete rmined that the urgency in that case was ‘ self-evidently
self-created’. 7

[15] The approach of an appellate court to an appeal against the exercise of a
discretion by another court will depend upon the nature of the discretion
concerned.

[16] In Cornerstone Logi stics (Pty) Ltd v Zacpak Cape Town Depot (Pty) Ltd
[2022] 2 All SA 13 (SCA), the Supreme Court of Appeal held that:

‘It is trite that in pronouncing on the issue of urgency, the court a quo was
exercising a wide discretion. This court can only interfere with that discretion if
it is manifest that the judge misdirected herself. I can find no evidence of such
misdirection or irregularity, and this court is, accordingly, not at liberty to
interfere. In any event, in my view, the urgency issue is moot. The cou rt a quo
had decided to hear and dispose of the matter on a semi -urgent basis. That
cannot be undone.’8

[17] In the present instance , t he respondent has not demonstrated a ny proper
basis for interference with th e exercise of this court’s wide discretion to
pronounce on the issue of urgency.

Lis alibi pendens

[18] The further grounds of appeal concern ing the issues of lis alibi pendens, the
directive issued in the Children’s Court proceedings underway , and the report
by the social worker, all traverse the respondent’s previous arguments in the
main application.


7 MM v NM and Others [2023] ZAKZPHC 117 (18 October 2023) at para 19.
8 Cornerstone Logistics (Pty) Ltd v Zacpak Cape Town Depot (Pty) Ltd [2022] 2 All SA 13 (SCA) at
para 30.

[19] These are dealt with in detail in the main judgment with reference to the facts
and law, including that:

19.1. While a social worker and a therapist were appointed to prepare the
child for the intended relocation, there has been no relocation
assessment by an expert.
19.2. The proceedings in the Children’s Court concern the respondent’s
rights of contact with the child, and the counter-application in those
proceedings was for an order directing the Office of the Family
Advocate to be appointed to conduct an investigation and report to that
Court in respect of the contact arrangements between the respondent
and the child.
19.3. In Nestlé (SA) (Pty) Ltd v Mars Incorporated [2001] 4 All SA 315 (A) ,
the principle of lis alibi pendens is explained as follows:9
‘There is room for the application of that principle only where the same
dispute, between the same parties, is sought to be placed before the
same tribunal (or two tribunals with equal competence to end the
dispute authoritatively). In the absence of any of those elements there
is no potential for a duplication of actions. In my view, none of those
elements is present in this case. Indeed, it is difficult to see how they
can exist where the matters in issue have been placed before two quite
different tribunals (as in this case), the one operating consensually and
the other by force of statute, each having its own peculiar functions,
powers and authority. For in such a case each tribunal will, by
definition, be inquiring into a ruling upon different matters, and neither
will be capable of ruling authoritatively on the issue that falls within the
competence of the other.’
19.4. The High Court and the Regional Divorce Courts have exclusive
jurisdiction to rule on relocation matters (see s 45(3)(d) read with s 46
of the Children’s Act 38 of 2005 ( the Children’s Act ); pending the

9 At par 17.

establishment of ‘family courts’ by an Act of Parliament this position will
prevail).
19.5. The Children’s Court is therefore not capable of ruling authoritatively on
the issue of the removal the parties’ minor child from South Africa, and
the respondent’s reliance on the principle of lis alibi pendens is without
merit.

[20] In the application for leave to appeal, the respondent submits that the court
that is conferred with the power to grant guardianship over a child to a person,
must have the power to grant an order for the relocation of a child within its
jurisdiction to another district, province in South Africa or foreign country, and
that any other interpretation would render section 45(3B) of the Children’s Act
superfluous.

[21] It is well -established that i nterpretation is the objective process of attributing
meaning to words used in legislation. This process entails a simultaneous
consideration of: (a) the language used in the light of the ordinary rules of
grammar and syntax; (b) the con text in which the provision appears; and (c)
the apparent purpose to which it is directed.10

[22] Section 45(3B) provides that the High Court and the Children’s Court have
concurrent jurisdiction over the guardianship of a child as contemplated
in s 24 of the Children’s Act. Section 24 in turn provides for the assignment of
guardianship by order of court.

[23] The Children’s Act defines guardianship with reference to s 18, which is
headed ‘Parental responsibilities and rights’. Section 18(3)(c)(iii) provides that
a parent or other person who acts as guardian of a child must inter alia:


10 Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) at para 18;
Capitec Bank Holdings Limited and Another v Coral Lagoon Investments 194 (Pty) Ltd and Others
2022 (1) SA 100 (SCA) at para 50.

‘(c) give or refuse any consent required by law in respect of the child,
including—
…
(iii)consent to the child’s departure or removal from the Republic’.

[24] Section 18(5) then provides that:

‘Unless a competent court orders otherwise, the consent of all the persons
that have guardianship of a child is necessary in respect of matters set out in
subsection (3)(c)’.

[25] The competence of the relevant courts is dealt with in s 45(3)(d) of the
Children’s Act, which provides that:

‘(3) Pending the establishment of family courts by an Act of Parliament, the
High Courts and Divorce Courts have exclusive jurisdiction over the following
matters contemplated in this Act:
…
(d) the departure, removal or abduction of a child from the Republic.’

[26] Section 46 of the Children’s Act goes on to detail the orders Children’s Court
may make, and does not confer jurisdiction on a Children ’s Court to deal with
the question of relocation.

[27] On a proper construction , taking into account relationship between the words
used, the concepts expressed by those words, and the place of the contested
provisions within the scheme of the Children’s Act:

27.1. Section 18 of the Children’s Act explicitly provides that only a
‘competent court’ may order relocation in the absence of the consent of
all the persons that have guardianship of a child;
27.2. The High Courts and Divorce Courts have exclusive jurisdiction to deal
with the matter of relocation.

27.3. The powers of the Children’s Court , as expressly provided for in the
Children’s Act , do not include the power to deal with the matter of
relocation.

[28] There are no reasonable prospects of another court coming to a different
conclusion on these issues.

Non-joinder

[29] As addressed in the main judgment, the test in a joinder application is whether
or not the party has a direct and substantial interest in the subject matter of
the action, i.e. a legal interest in the subject matter of litigation, which may be
affected prejudicially by the judgment of the court.11

[30] The respondent characterise s the Order as a mandamus against Dr Carnie,
and further submits that the fact that Dr Carnie will receive compensation for
services this court has ‘ compelled’ him to render , means that Dr Carnie has
interest in the outcome of application.

[31] The clear and unambiguous terms of the Order are dispositive of this
contention. The Order provides that the respondent shall cooperate ‘ in the
relocation assessment(s) that may be undertaken by Dr Basil Carnie ’. DR
Carnie is therefore not compelled by the order of this court to undertake any
such relocation assessments.

[32] Relatedly, service of the main application on the Office of the Family Advocate
was not necessary at this stage because of the nature of the relief sought.


11 Judicial Service Commission and Another v Cape Bar Council and Another 2013 (1) SA 170 (SCA)
at para 12.

Interdict

[33] The respondent contends that the applicant failed to establish the three
requirements for interdictory relief.

[34] An applicant seeking the grant of a final interdict must show a clear right; an
injury actually committed or reasonably apprehended; and the absence of
similar protection by any other ordinary remedy. 12 In granting the Order, t he
following factors were taken into account in the main judgment:

34.1. While a social worker and a therapist were appointed to prepare the
child for the intended relocation, there has been no relocation
assessment by an expert.
34.2. In F v F 2006 (3) SA 42 (SCA), the Supreme Court of Appeal held that
from a constitutional perspective, the rights of a custodian parent to
pursue his or her own life or career involved fundamental rights to
dignity, privacy and freedom of movement.13
34.3. What is more , thwarting a custodian parent in the exercise of those
rights might well have a severe impact on the welfare of the child
involved. 14
34.4. It is also clear that the applicant approached the court as a last resort,
when regard is had to the exchange of corres pondence between the
parties regarding the proposed assessment by Dr Carnie.

[35] The respondent therefore does not establish prospects of succeeding on this
ground of appeal.

The Order


12 Hotz and Others v University of Cape Town 2017 (2) SA 485 (SCA) at para 29.
13 F v F 2006 (3) SA 42 (SCA) at par 11.
14 Ibid.

[36] In the notice of application for leave to appeal, the respondent submits that
the orders granted in the main application are impermissible because it is ‘trite
law that Judges are not allowed to instruct the parties to initiate proceedings
that are not before Court or instituted on instructions of their client in any
proceedings before Court as it is not in the interest of justice for judicial
officers to be a player and a referee in litigation before Court.’

[37] The respondent further submits that the court erred in ordering that the
respondent co-operate with an expert in the proceedings that were not before
court.

[38] These grounds of appeal misconstrue the terms of the Order . The Order is
conditional:

38.1. The co-operation order was granted subject to the applicant launching
the intended relocation ap plication within 30 days from the granting of
the Order, failing which the co -operation order would fall away. This
does not mean that the applicant is compelled or obliged to institute
such proceedings in terms of the Order . The election to institute such
proceedings remains that of the applicant.
38.2. The respondent’s cooperation is also tied to the institution of the
relocation application.

[39] It warrants emphasis that at the heart of this matter is the best interests of the
minor child. Section 28(2) of the Constitution provides that the child’s best
interests are of paramount importance in every matter concerning the child.
The principle of the best interests of the chi ld has also been incorporated in
s 9 of the Children’s Act.

[40] In the recent decision of M.D.P v W.T.P and Another (Appeal) (A139/2024)
[2025] ZAWCHC 300 (17 July 2025) the Full Court affirmed the wide powers
of the High Court in such matters as follows:

‘As was made clear in Terblanche v Terblanche, as upper guardian in custody
and related matters the High Court has wide powers to establish what is in the
best interests of minor children. It is not bound by procedural strictures or by
the limitations of the evidence presented or contentions advanced by the
respective parties. It may have recourse to any source of information, of
whatever nature, which may be able to assist it in resolving custody and
related disputes. This requires that account be taken of relevant factors and
circumstances, both past and future, and the possibility of what might happen
in the future when making an order.’ 15

[41] Furthermore, in DR v NM and Another (3358/2024) [2024] ZAWCHC 165 (7
June 2024) this Court held that:

‘…the High Court sits as upper guardian in matters involving the best interests
of child (be it in custody matters or otherwi se), and that it has extremely wide
powers in establishing what such best interests are. It is not bound by
procedural strictures or by the limitations of the evidence presented or by
contentions advanced or not advanced by the respective parties
As an upper guardian of all dependent and minor children, this court has an
inalienable right and authority to establish what is in the best interest of the
children and to make corresponding orders to ensure that such interests are
effectively served and safeguarded….’. 16

[42] This approach is also consistent with the principle set out by the Constitutional
Court in PFE International Inc (BVI) and Others v Industrial Development
Corporation of South Africa Ltd 2013 (1) SA 1 (CC) that:

‘Since the rules are made for courts to facilitate the adjudication of cases, the
superior courts enjoy the power to regulate their processes, taking into
account the interests of justice. It is this power that makes every superior

15 M.D.P v W.T.P and Another (Appeal) (A139/2024) [2025] ZAWCHC 300 (17 July 2025) at para 32.

16 DR v NM and Another (3358/2024) [2024] ZAWCHC 165 (7 June 2024) at paras 21-22.

court the master of its own process. It enabl es a superior court to lay down a
process to be followed in particular cases, even if that process deviates from
what its rules prescribe. Consistent with that power, this Court may in the
interests of justice depart from its own rules.’ 17

[43] The contention that the Order as framed is not permissible is therefore without
merit. The relevant question is whether the Order granted, for cooperation in a
relocation assessment, secures the best interests of the minor child.

[44] The main judgment highlights the applicant’s explanation that she requires the
respondent’s co -operation in order to bring a carefully considered and
reasoned relocation application, which deals with all of the factors as per s 7
of the Children’s Act.

[45] Given his mother’s stated intention, the Order allows for the commencement
of the relocation assessment process, which assessment is in the best
interests of the child. As was submitted by the applicant, the absence of such
an order would only serve to prolong the continued uncertainty in the minor
child’s life in relation to the issue of relocation . The Order serves to ensure
that the minor child’s interests are safeguarded and given paramountcy.

[46] The respondent therefore does not establish prospects of succeeding o n the
grounds of appeal raised . The respondent has also failed to establish a
compelling reason why, despite the lack of prospects of success, there is a
compelling reason that the appeal should be heard.

ORDER

[47] I accordingly make the following order:


17 PFE International Inc (BVI) and Others v Industrial Development Corporation of South Africa Ltd
2013 (1) SA 1 (CC) at para 30.

1. Leave to appeal is refused.
2. The applicant in the application for leave to appeal shall pay the
costs of the application for leave to appeal , including those of
counsel on the ‘B’ scale.


___________________________
ACTING JUSTICE T SARKAS


For applicant in the application for leave to appeal / respondent in the main
application:
Adv R Nthambeleni SC
Adv A Van Loggerenberg
Instructed by: Philip Venter Attorneys

For respondent in the application for leave to appeal / applicant in the main
application: Adv RJ Steyn
Instructed by: Van der Spuy & Partners