IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, GQEBERHA)
Case no: 775/2025
In the matter between:
S H Applicant
and
M L H Respondent
________________________________________________________________
JUDGMENT
________________________________________________________________
Brauns AJ
[1] Pentimenti is a very interesting Italian term, often applied in the study of art
where repented traces or sketches concealed by layers of paint soon reveal
themselves it helps artists to analyse their intentions, motives and impulses. It
is used not only to produce the final product or result but also show the
undesired parts of their work. The art o f searching beneath the layers of paint
to reveal what is hidden, is the idea behind this ‘philosophy’. This is the way in
which this court approaches the matter before it1.
1 Douglas Oliveira Diniz Goncalves ‘Pentimenti reading: Unravelling hidden interests and
values behind constitutional drafts’ 2022 (Jan) Academia Letters (www.academia.edu,
[2] Before this court, is an application which arises from an action for divorce,
currently pending before this court. For the sake of convenience, the applicant
and respondent are plaintiff and defendant, respectively, in the main action. In
the present matter, and in accordance with prevailing judicial practice, the
parties and the minor child will be referred to by their respective initials only.
[3] The applicant approached this court in terms of rule 43 2.The interim relief
claimed relates to the primary residence and contact of a seven -year-old
minor child born of the marriage pending the finalization of his action for
divorce from the respondent. It is clear from the papers exchanged that that
applicant, the father, is resident in South Africa, within the area jurisdiction of
this court and the respondent, the mother, is ordinarily resident in Malaysia.
[4] The parties were married to each other on 17 July 2016 out of community of
property subject to the accrual system. The marriage produced one child, “L,”
born on 18 July 2018, who presently resides with the respondent in Malaysia.
The parties have been separated and living apart since 18 January 2025.
[5] The issue before this court is on a preliminary point of law raised by the
respondent before the hearing of the main application. The point is whether
this court, is empowered to make an o rder in terms of rule 43 that would be
effective and enforceable in Malaysia.
The parties’ submissions
[6] The common cause facts are the following; The minor child is ordinarily
resident in Malaysia. It is accepted that Malaysia is not bound to automatically
enforce South African custody or parental -rights orders and that any
enforcement abroad would require l ocal legal processes, the outcome of
which is uncertain. The Family Advocate’s investigation remains relevant to
accessed 3-11-2023
2 The Uniform rules of Court
determining the child’s best interests, and it is further acknowledged that the
Malaysian legal system may apply its own family -law principles, which could
differ significantly from South African law.
[7] The issues in dispute are confined to questions of law and characterisation of
the relief sought. The applicant contends that this court retains jurisdiction to
entertain the rule 43 application despite the child’s residence abroad, and that
the effectiveness of any interim order does not depend on its immediate
enforceability in Malaysia. The respondent, on the other hand, argues that the
relief sought amounts in substance to a custody order under the Children’s
Act 38 of 2005 3, which requires jurisdiction determined by the child’s ordinary
residence, and that effectiveness must mean present enforceability rather
than speculative future recognition.
[8] In determining these issues, it is necessary fir st to consider whether
jurisdiction properly vests in this court, having regard to both rule 43
proceedings and the principles governing matters affecting children under the
Children’s Act. Once jurisdiction is established it will become necessary to
address the question of whether any order granted would be effective in law,
notwithstanding the child’s residence in Malaysia and the uncertainty of
foreign enforcement.
Legal Framework
[9] In contrast to the Children’s Act, the Divorce Act 70 of 1979 4 is silent on
matters concerning the relocation of a minor child and the regulation of care
and contact during the pendency of divorce proceedings. While the Divorce
Act provides the jurisdictional basis for a divorce action and requires the court
to ensur e that proper arrangements are made for the welfare of any minor
child before granting a decree, it does not expressly prescribe how interim
relocation disputes or cross -border residence issues are to be addressed.
3 herein after referred to as the Children’s Act
4 herein after referred to as the Divorce Act
These questions are primarily guided by t he Children’s Act, which contains
comprehensive provisions on the best interests of the child, parental
responsibilities and rights, and jurisdiction in children’s matters.
The Divorce Act
[10] It is best to start off by having regard to the Divorce Act. Sec tion 1 defines a
“court” as a high court or a regional division of the magistrates’ court which, by
law, has jurisdiction in divorce matters. The Divorce Act also defines a
“divorce action” as encompassing not only the claim for a decree of divorce
but als o any related relief such as interim maintenance, costs contributions
and arrangements regarding minor children.
[11] Section 2, provides that a court has jurisdiction if either party is domiciled or
ordinarily resident in its area, provided such residence has continued for at
least one year prior to the institution of the action. Jurisdiction attaches to the
divorce action as a whole, and this court must therefore satisfy itself that it is
competent to entertain all ancillary relief flowing from the pending di vorce
proceedings.
[12] Section 6, expressly safeguards the welfare of minor and dependent children.
A decree of divorce may not be granted unless the court is satisfied that
proper provision has been made for the welfare of the children, or that the
arrangements proposed are the best that can reasonably be achieved in the
circumstances. The court may call for a Family Advocate’s report, direct
further investigations, appoint legal representation for the child, and make any
order regarding guardianship or custo dy if that serves the child’s best
interests.
The Children's Act
[13] Section 2 affirms that the Children’s Act must be interpreted and applied to
promote the protection, well -being and development of children, consistent
with the Constitution and internatio nal law. Section 6 prescribes general
principles applicable to all proceedings concerning children, including respect
for their dignity, the promotion of their rights in the bill of rights, and
recognition of their individual circumstances and developmental needs.
[14] Section 7, sets out the factors to be taken into account when determining the
best interests of a child. These include, among others, the nature of the child’s
personal relationships with parents and caregivers, the likely effect of any
change in the child’s circumstances, the child’s age, maturity and stage of
development, and the need for stability and security. The best -interests
standard is not a single test but a composite weighing of all relevant
circumstances to ensure that the child’s welfare is paramount.
[15] Section 23, empowers a court to assign contact or care in respect of a child to
an interested person by order of court. In determining such an application, the
court must consider the best interests of the child, the relationship between
the child and the applicant, the degree of commitment shown by the applicant,
and any other relevant factors. This section underscores that parental
responsibilities and rights are not absolute, and that the court retains a
supervisory role to ensure that any allocation of care or contact aligns with the
child’s welfare.
[16] Section 28, regulates the termination, extension, suspension or restriction of
parental responsibilities and rights. A court may only make such an order if it
is in the best interests of the child, and in doing so must apply the principles in
sections 6 and 7. This ensures that any adjustment to parental responsibilities
or rights remains anchored in constitutional and statutory safeguards.
[17] Section 29, deals with court proceedings in matt ers concerning children. It
provides that any person holding parental responsibilities and rights in respect
of a child, or an interested party acting in the child’s best interests, may
of a child, or an interested party acting in the child’s best interests, may
approach a court for appropriate relief. Importantly, it also governs jurisdiction:
generally, proceedings may be brought in the high court or children’s court
where the child is ordinarily resident. This reinforces the requirement that
orders affecting children must be made by courts that are best placed to
assess and protect their interests.
[18] Read together, sections 7,23,28 and 29, require this court to approach
questions of jurisdiction and effectiveness through the prism of the child’s best
interests. Even when technical jurisdictional objections are raised, sections 6
and 7 require the court not to lose sight of its duty to ensure that the child’s
rights are respected and that any decision promotes the child’s welfare.
Sections 28 and 29, in turn, ensure that any order affecting parental
responsibilities and rights is mad e within the proper forum and remains
practically capable of advancing the child’s interests.
[19] In AR v BMR , 5 the court held that, when the interests of minor and major
dependent children are in issue in divorce proceedings, irrespective of whether
such proceedings are opposed or unopposed, the provisions of section 6 of
the Divorce Act, are applicable. The secti on compels a court to satisfy itself,
which may include considering a report and recommendation by or referral to
the Family Advocate, that the order sought indeed serves the child’s interest. If
it does not, then the court may not grant a decree of divorc e. Section 6 does
not clothe the court with a discretion. A duty and obligation are placed on the
court by section 6(1) and (3).
[20] In addition, section 7(1), calls upon the court to consider various factors when
considering the best interests of minor child ren. Section 9, mirrors the
constitutional imperative of the best interests of the child that is of paramount
importance in all matters concerning a child and which must be applied6.
[21] When it comes to the interests of minor children, legal practitioners a nd the
court cannot follow a cookie -cutter approach. Each matter must be
approached and considered on its own merits. Each child is an individual with
his/her own specific needs. Consequently, when considering the best interest
his/her own specific needs. Consequently, when considering the best interest
5 [2023] ZAGPPHC 2035 (8 December 2023) para 1 -2
6 AR supra para 3
of children and when parties reach an agreement regarding the exercise of
parental rights and responsibilities, such an agreement must be specifically
tailored to suit the unique needs of the child involved. In addition, the evidence
in support of the relief sought, should specifical ly address the best interest of
the child within the unique context of the particular child7.
Analysis
[22] In deciding rule 43 applications, the court has a wide discretion and in
determining interim maintenance or arrangements regarding children, courts
place primary emphasis on the best interests of the child. This includes
assessing the child’s emotional, physical, and educational needs, together with
each parent’s ability to provide for those needs.
[23] This court is confronted with an apparent conflict be tween sections 23 and 28
of the Children’s Act, on the one hand, and section 2 of the Divorce Act, on the
other. The dispute arises in circumstances where one parent resides with the
minor child in Malaysia, while the other parent is ordinarily resident in South
Africa, seeks interim relief under rule 43 pertaining to care and contact.
[24] In Independent Institute of Education (Pty) Limited v Kwazulu -Natal Law
Society and Others 8, the concourt laid down the guidelines to statutory
interpretation. In addition, the Constitutional Court stated that there is no
principle of interpretation that requires a court to interpret one piece of
legislation with reference to another, for the reason that one statue may assign
a different definition to the “word or expression ” compared to that of the other.
However, statues dealing with the “same subject matter”, or which are in “pari
materia” should be construed together and harmoniously. When constitutional
rights are at issue, and where the ordinary grammatical meanings of the words
used in the impugned provisions give effect to the constitutional rights and
7 Op cit para 80
8 (CCT68/19) [2019] ZACC 47
values, the words must bear that meaning rather than the meaning ascribed to
those words in another piece of legislation.
[25] Accordingly, in Amabhungane Centre For Investigative Jou rnalism NPC and
Another v Minister of Justice and Correctional Services and Others 9 the court
infused its ‘interpretative skills’ into the very heart of the statute to bring alive
the true or actual meaning as intended by the legislature.
[26] Having considered the relevant provisions of both the Children’s Act and the
Divorce Act, it is apparent that the Children’s Act contains the comprehensive
legislative framework governing the best interests of the child, including
specific guidance on matt ers of care, contact, and decision -making affecting a
child’s well-being.
[27] The Divorce Act, while providing the procedural basis for divorce proceedings
and jurisdictional requirements, is largely silent on substantive issues of care
and contact pendente lite . Its focus is on the dissolution of the marital
relationship rather tha n on regulating the detailed incidents of parental
responsibilities and rights. Although the Divorce Act recognizes applications for
interim relief —including maintenance and temporary custody or access —it
does not prescribe criteria by which such applications must be assessed, other
than the court’s inherent discretion.
[28] By contrast, the Children’s Act expressly codifies the best interests of the child
standard in section 7, requiring a holistic enquiry into the child’s emotional,
physical, educational and social needs, as well as the likely impact of any
change in circumstances, including separation from a parent or relocation.
Sections 23 and 28 of the Children’s Act, further empower the courts to assign
or circumscribe parental responsibilities and rights and to regulate contact or
care arrangements, always guided by the paramountcy of the child’s best
interests
9 2021 (3) SA 246 (CC)
[29] In matters of relocation, whether temporary or permanent, the factors
enumerated in section 7 of the Children’s Act are directly relevant. These
include the practical difficulty and expense of maintaining personal relations
with a parent living elsewhere, the effect of separation from a parent, siblings
or extended family, and the need to protect the child’s emotional security and
developmental stability. The Divorce Act contains no equivalent provisions.
[30] Accordingly, by way of interpretation, it is the Children’s Act —not the Divorce
Act—that provides the statutory framework for determining the best interests of
the child in cases involving relocat ion. The Divorce Act establishes jurisdiction
and procedural competence, but the Children’s Act furnishes the substantive
principles and criteria by which such disputes must be resolved.
[31] This interpretive approach directly informs the jurisdictional inquiry that follows.
Jurisdiction
[32] The doctrine of effectiveness in civil procedure is a principle that dictates
whether a court can exercise jurisdiction over a matter. It essentially states
that a court should not issue a judgment unless it can be enforced or unless
compliance with the judgment can be expected. This means a court must
have the ability to ensure its orders are carried out within the legal system.
[33] The location of the defendant (whether they are within or outside South Africa)
is crucial in d etermining whether the court can effectively enforce its
judgment. Jurisdiction is fundamental. A court must have jurisdiction in a
matter for its judgment or order in that matter to be valid. Without jurisdiction
the judgment or order is a nullity. No pr onouncement to that effect is required.
It is simply treated as such. 10 Once a court has jurisdiction, it retains that
jurisdiction until the suit is concluded.11
10 Trade Fairs and Promotions (Pty) Ltd v Thomson and another 1984 (4) SA 177 (W) at 183DE.
10 Trade Fairs and Promotions (Pty) Ltd v Thomson and another 1984 (4) SA 177 (W) at 183DE.
11 Mills v Starwell Finance (Pty) Ltd 1981 (3) SA 84 (N) at 88A-B.
[34] In Lin v Director 12, my sister, Roberson J, held that, by virtue of their
marriage, the app licant and Lin both had full parental responsibilities in
respect of the child, W 13. In seeking an order that the mother be declared the
primary caregiver of W, the applicant was effectively seeking an order in
terms of s 28 (1)(b) of the Children’s Act, n amely a circumscription of Lin’s
parental responsibilities. Even assuming that W was unlawfully removed by
Lin to China, or was being unlawfully retained there, the fact was that he was
not present within this Court’s jurisdiction and the court therefore h eld, that it
did not have jurisdiction to order his return to the applicant in South Africa.14
[35] In VV v OV15 where it was held that, whether or not the respondent submitted
to the jurisdiction of this court was a factual question which required
consideration of whether the cumulative effect of the proven facts established
submission to the jurisdiction of the court on a balance of probabilities. This
court aligns itself with that authority.
[36] In NAN v CN,16 the court found that section 18(5) permits a court to dispense
with a co -guardian’s consent in specific instances (e.g. passport, travel)
without permanently removing guardianship. Jurisdiction is based on the non-
consenting guardian being subject to the court’s authority and depends on the
nature of relief sought. If the relief simply overcomes a temporary refusal to
consent, the court may act without the child being resident locally. If the relief
effectively removes or fundamentally alters parental rights, jurisdiction is
restricted to the court where the child resides17.
12 Lin v Dept of International Relations Co-operation (3207/2010) [2010] ZAECPEHC 71 (30
November 2010)
13 Ss 19 and 20 of the Children’s Act
14 Lin, supra at para 25
15 2025 (1) SACR 498 (WCC) at para 19 - this is a judgment regarding an application for
15 2025 (1) SACR 498 (WCC) at para 19 - this is a judgment regarding an application for
contempt of court against a respondent for non -payment of a court -ordered financial obligation,
ultimately ruling that the court lacked jurisdiction to enforce th e order due to the respondent's domicile
in Saudi Arabia.
16 In re: J.N (2425/2016) [2017] ZAECPEHC 61 (14 December 2017)
17 Section 28 of the Childrens Act
[37] In the recent case of Heidi Nicole Koch N O and Another v The Ad hoc
Central Authority for the Republic of South Africa and An other,18 the SCA had
to make a decision in a case where a father based in the United Kingdom
(“UK”) requested the return of his child from South Africa (“SA”). The SCA
held that the SA courts would be bound to order the return of the child to the
UK unless circumstances existed where a person opposing the application for
the child’s return established that “…there is a grave risk that the [child’s]
return would expose [him or her] to physical or psychological harm or
otherwise place the child in an intolerable situation…”
[38] In YC v JRC 19 it was held that the high court’s inherent power as upper
guardian of minors did not override explicit statutory limits on jurisdiction. The
“best interests of the child” principle, while paramount, could not create
jurisdiction where legislation excluded this. The court cited authority
confirming that a court must have both power to take cognizance of the case
and power to give effect to its judgment (doctrine of effectiveness). While child
welfare must always guide the court, this principle did not allow a court to hear
a case it had no legal power to decide.
[39] AR,20 confirms that while section 2 of the Divorce Act determines which court
has jurisdiction over a divorce action and related interim applications, it does
not prov ide substantive guidance on care or contact of a minor child. That
framework is supplied by the Children’s Act, particularly section 29 read with
sections 7, 23 and 28, which enshrine the paramountcy of the child’s best
interests as the guiding principle. In this case —where one parent resides
abroad and the other seeks interim care or contact in South Africa —this
interpretation supports the view that the court properly assumes jurisdiction
under the Divorce Act, but must resolve all child -related disputes b y applying
under the Divorce Act, but must resolve all child -related disputes b y applying
the Children’s Act criteria, ensuring that relocation or separation issues are
assessed holistically with reference to the child’s emotional, physical, and
developmental needs rather than the parents’ convenience.
18 (188/2021) (2022) ZASCA 60 (26 April 2022)
19 (20375/2024) [2024] ZAWCHC 273 (20 September 2024)
20 FN 6 above, supra
[40] Regarding the question whether jurisdiction vests in this court notwithstanding
the child’s residence in Malaysia, the applicant relies on the principle that rule
43 relief is incidental to a pending divorce action, and that once jurisdiction is
established in respect of the divorce, i t continues throughout all interlocutory
proceedings. The respondent, by contrast, submits that the substance of the
relief sought is not merely ancillary but amounts to a custody order under the
Children’s Act, which is governed by the ordinary residence of the child.
[41] The Divorce Act makes no explicit provision regarding relocation disputes or
interim arrangements pendente lite, but it does confer jurisdiction where either
party is domiciled or resident within this Court’s area for the prescribed period.
This jurisdiction extends to the divorce action as a whole. However, the
Children’s Act prescribes that in matters primarily concerning the care,
contact, or guardianship of a child, jurisdiction ordinarily follows the child’s
place of residence. These ove rlapping statutory schemes must be interpreted
harmoniously: the Divorce Act establishes the Court’s authority to hear the
divorce and incidental matters, while the Children’s Act ensures that orders
concerning children remain firmly grounded in their best interests and linked
to the forum best suited to protect those interests.
[42] A rule 43 application concerning the primary residence of a minor during
divorce is governed by the Children’s Act. Such applications provide interim
relief and must prioritize the child’s best interests, whether the present
application is truly incidental to the divorce or constitutes a stand -alone
custody dispute is therefore critical. If the application is properly characterized
as incidental relief under rule 43, jurisdiction fo llows the pending divorce and
is not defeated by the child’s relocation. If, however, the relief sought amounts
is not defeated by the child’s relocation. If, however, the relief sought amounts
to a substantive variation or allocation of parental responsibilities and rights
under section 28 of the Children’s Act, the jurisdictional inqu iry must focus on
the child’s ordinary residence in Malaysia.
[43] In resolving this issue, this court must give effect to sections 6 and 7 of the
Children’s Act, which make the best interests of the child paramount.
Technical jurisdictional objections must no t obscure the central inquiry into
whether the child’s welfare will be advanced or prejudiced by the granting or
refusal of interim relief. Even if enforcement abroad is uncertain, this court is
not relieved of its constitutional and statutory duty to ensu re that decisions
concerning the child are made through a proper judicial process and informed
by expert investigation, such as that of the Family Advocate.
[44] The doctrine of effectiveness requires that courts assume jurisdiction only
where their orders can be practically implemented. In VV v OV 21 the court
held that even where jurisdiction exists, orders must have practical effect. It
refused contempt proceedin gs because enforcement against a respondent
outside South Africa was impossible. This principle applies generally: courts
should not issue orders that cannot realistically be enforced, even if
jurisdiction exists on paper.
[45] In J.S v W.F ,22 the high court c onfirmed its jurisdiction to finalise relocation,
contact, maintenance, and declaratory issues but could not alter parental
rights under section 29 of the Children’s Act, because the children habitually
resided in France. Jurisdiction was held to be assess ed at the time of filing,
not after parties relocate. Both N.A.N. v C. N 23. and J.S. v W.F. clarify that
South African courts generally retain jurisdiction once validly seized (doctrine
of continuance) but may not alter parental rights under section 28 of the
Children’s Act, unless the child is locally resident. Courts balance jurisdiction
with the child’s best interests and may decline orders if a foreign forum is
clearly more appropriate.
[46] As indicated above, section 2 of the Divorce Act confers jurisdic tion in divorce
proceedings based on domicile or ordinary residence, covering related interim
applications, including rule 43. Section 29 of the Children’s Act governs
applications to assign, suspend, or terminate parental responsibilities,
applications to assign, suspend, or terminate parental responsibilities,
21 FN 13 above
22 (63698/13) [2020] ZAGPPHC 350 (10 July 2020)
23 FN 14 above
requiring compl iance with specific procedures and a best -interests
assessment.
[47] These provisions serve complementary purposes: section 2 of the Divorce
Act, determines the competent forum, while section 29 of the Children’s Act,
prescribes how child -related applications are to be brought and assessed. In
disputes over interim care or contact during divorce proceedings, jurisdiction
arises from the Divorce Act, while the Children’s Act governs the substantive
and procedural framework. Section 2 of the divorce Act, does not override
section 29 of the Children’s Act; rather, it identifies the forum, while section 29
of the Children’s Act, sets out how parental -responsibility applications must
comply with the Children’s Act. Together, these provisions confirm that South
African courts may adjudicate child -related issues during divorce but must do
so guided by the child’s best interests. The Acts operate in tandem: the
Divorce Act determines where a case may be heard; the Children’s Act
prescribes the principles and procedures for deciding child issues.
[48] In the result, and in accordance with the doctrine of effectiveness, it is
declared that while this court retains jurisdiction over the divorce action
between the parties in terms of section 2 of the Divorce Act, it cannot exercise
jurisdiction under section 29 of the Children’s Act to make orders concerning
the care, contact, custody, or guardianship of the minor child, who is ordinarily
resident in Malaysia; any such relief must be sought before the competent
court of that jurisdiction, subject to applicable principles of private international
law. The preliminary point of law raised by the respondent is upheld.
Costs
[49] The issue of costs falls evenly within the decision of this Court, to be
exercised judicially hav ing regard to the facts of the case. As a general
principle, the successful party is entitled to his/her costs unless there are
compelling reasons to depart from that rule.
compelling reasons to depart from that rule.
[50] There is no compelling reasons to depart from the rule.
[51] Resultantly, the following order is made:
1. The application brought by the applicant in terms of rule 43 of the
Uniform Rules of Court on 12 August 2025 is hereby dismissed.
2. Costs of the application shall stand over for determination by the
court hearing the divorce action.
L R BRAUNS
ACTING JUDGE OF THE HIGH COURT
Heard : Wednesday, 13 August 2025
Delivered : Tuesday, 02 September 2025
Appearances:
Counsel for applicant : L Gagiano
Attorneys for applicant LIZELLE PRETORIUS INC.
GQEBERHA
Counsel for respondent : A.A. van Den Bos
Attorney for respondent PAUW ATTORNEYS
GQEBERHA