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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted
from this document in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NO : 020029/2025
DATE : 12.11.2025
(1) REPORTABLE : NO
(2) OF INTEREST TO OTHER JUDGES : NO
(3) REVISED
10
SIGNATURE DATE: 12 November 2025
In the matter between
T[…] T[…]
and
M[…] N[…]
J U D G M E N T EX TEMPORE 20
WILSON , J: In the main application, the applicant seeks
the suspension of an order of the Children's Court made on
24 April 2023. Flowing from the suspension of the Children's
Court order, the applicant seeks a range of ancillary relief
changing the primary residence and contact regime the
Children’s Court applied to regulate the care of the part ies’
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minor child.
When the matter was called before me today,
Ms . Khubeka announced her appearance for the applicant
and sought a postponement. Ms Khubeka, through no fault
of her own, was unable to set out the basis on which the
postponement was sought. She had clearly been given very
few instructions.
There was a suggestion that there had been non-
compliance with this c ourt's practice directives. On further
probing the non- compliance appears to have been the 10
failure of either party to file a joint practice note.
Ms Khubeka was unable to say what prejudice would flow
from that failure, since the joint practice note is primarily
for the benefit of the c ourt and not for either of the parties.
I indicated that I had read the papers and I was not at
any disadvantage for not having had the benefit of a joint
practice note. Ms Khubeka could not gainsay that , and she
was unabl e to identify any other basis on which the
applicant would suffer prejudice if the application was not
postponed. Of course, had the main application stood 20
excellent prospects of success, the applicant would have
been severely prejudiced by the absence of an advocate to
motivate it on his behalf. That is why, as is trite, the
prospects of success in the main application are always
relevant in an application to postpone.
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The problem in this case is that the prospects of
success in the main application are extremely weak. There
is a Children's Court order. It deals comprehensively with
the applicant's rights of contact with the minor child. It was
made after due consideration given to the matter by the
Magistrate who gave a reasoned judgment in support of
their order.
Under the Children's Act, all Magistrates ’ Courts are
Children's Courts and all Children's Court orders are to be
treated as orders of the Magistrates Court. I am unable to 10
find any basis on which on which I am entitled to reach into
the Children's Court proceedings and interfere with an order
made by that c ourt in the absence of an appeal properly
before me.
It was suggested in written submissions filed on the
applicants’ behalf that my general role as the upper
guardian of children within my jurisdiction permits me to
interfere with the Children’s Court order if that is necessary
to promote a child’s best interests. But that merely begs the
question. Nothing has been said in the main application that 20
supports the conclusion that an approach to the Children’s
Court to vary or appeal its order would not serve the child’s
best interests while according the appropriate respect to the
jurisdiction of that court.
Had the applicant sought relief the Children's Court
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cannot grant, that would have been a different matter . But
as Mr Rood, who appear ed for the respondent, argued,
there is no relief sought in part A of this application that it
would not be competent to seek from the Children's Court
itself. The applicant's remedies accordingly lie in the
Children's Court. The applicant is entitled to seek a
variation of the Children's Court order. The applicant can
seek leave to appeal the Children's Court order, explaining
his tardiness in doing so . There is a range of other relief
that the applicant may be able to seek in Children's Court, 10
dealing with the order as it presently stands.
There is no explanation on the papers as to why the
Children's Court itself has not been approached and,
indeed, there appears to be a concession on the applicant's
behalf that the proper course would have been to appeal the
Children's Court's order as soon as it was granted. On that
conspectus of the applicant's case, his claim in the main
application plainly stands very low prospects of success
and accordingly the prejudice to him in refusing a
postponement is slight indeed. 20
The respondent would plainly be prejudiced by a
postponement. Every day this application drags on, the
perfectly lawful regime the Children’s Court has put in place
is thrown into doubt. It cannot be in anyone’s best interests
– let alone those of the parties’ child – that this situation be
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allowed to endure for a moment longer than is necessary.
There is accordingly no basis on which the
application should be postponed, and I am bound to refuse
the postponement order sought. For all those reasons, the
application for a postponement is dismissed with costs.
………………………….. 10
WILSON , J
JUDGE OF THE HIGH COURT
12 November 2025