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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case Number: 2026-008459
In the matter between:
In the matter between:
B[…] L[…] F[…] M[…] Applicant
And
G[…] J[…] M[…] Respondent
JUDGMENT
STRYDOM, J
Introduction
[1] This is an urgent application concerning the relocation, residence, and
schooling of the parties’ minor children. Although the urgency was accepted,
the respondent raised a preliminary and potentially decisive issue as to whether
this Court has the requisite jurisdiction to entertain the application.
[2] The respondent contends that this Court lacks jurisdiction on the basis that, at
the time these proceedings were instituted, the minor children were ordinarily
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED: YES/NO
______________ _________________________
DATE SIGNATURE
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resident in Cape Town, having permanently relocated there with the applicant.
The applicant, conversely, submits that the permanency of the relocation was
contingent upon her finding employment in Cape Town. As she failed to obtain
employment in Cape Town, her continued stay there with the minor children
could no longer be regarded as permanent, as the applicant reserved her right
to move back to Johannesburg. In such an event, the existing Parenting Plan,
which was in force whilst the parties lived in Johannesburg, would apply.
[3] The applicant moved back to Johannesburg after about four months in Cape
Town, and the children were to follow her at a later stage under an agreement
between her and the respondent. Accordingly, the applicant submitted that the
minor children were not, at the time this application was filed, ordinarily resident
in Cape Town but remained subject to this Court's jurisdiction.
[4] The jurisdiction of this court to deal with this matter concerning minor children
must be determined before the merits can be considered. If this Court lacks
jurisdiction, it has no authority to pronounce upon the substantive relief sought.
[5] Section 29(1) of the Children’s Act 38 of 2005 (“the Act”) provides that
applications in terms of certain sections of the Act may be brought before the
High Court within whose jurisdiction the child concerned is ordinarily resident.
[6] Jurisdiction in matters concerning the care, contact, residence, and schooling of
minor children is governed primarily by the Act. Section 29 of the Children's Act
provides as follows:
“An application in terms of section 22(4)(b), 23,24,26(1)(b) or 28 may be brought
before the High Court, a divorce court in a divorce matter or a children’s court, as
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the case may be, within whose area of jurisdiction the child concerned is
ordinarily resident.”
[7] 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 terminate, suspend, or circumscribe a parent's parental rights
and responsibilities.
[8] Goosen J, (as he then was ), noted that the requirement is that the minor child
must be ordinarily resident within the area of jurisdiction of the court. This is a
territorial limitation of jurisdiction.
[9] On behalf of the applicant, it was argued that to find that children are ordinarily
resident at a particular place, it must be accompanied by some degree of
permanency. It is a matter of degree. (see Trik v Broude 1973 (1) SA462 (T) at
469F-G). In this case, with reference to the matter of Ex parte Minister of Home
Affairs 1941 AD 53, the court found that to establish residency , ‘some good
reason for regarding it as his place of ordinary habitation at the date of service’
is required. The court in Trik, supra, found ‘This conveys to me some sense of
stability or something of a settled nature.’
[10] To consider whether the minor children were ordinarily resident in Cape Town
when this application was filed, the court will have to consider some of the
background circumstances regarding how the children were relocated to Cape
Town and attended school there.
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[11] The parties lived in Johannesburg, and the children were born there. From
August 2020 to January 2021, the parties temporarily relocated to Cape Town.
Upon returning with the children, they moved into a family home in Hyde Park,
Johannesburg. The parties started to experience marital problems, and during
October 2022, the respondent indicated that he no longer wished to be married
to the applicant. The parties began living separately, and on 18 March 2023,
they entered into a Parenting Plan.
[12] In terms of the Parenting Plan the parties would have joint residency, and
contact would be shared on a 50/50% basis. The children would stay in a new
residence in Sandhurst, and their parents would alternate in staying with them .
The Parenting Plan was to be reviewed and renewed from time to time.
[13] The parenting Plan was amended during November 2024 by way of an
addendum. In this addendum , it was provided that the minor children would
relocate to Cape Town. This is what happened during December 2024. The
50/50% contact by the parents was maintained. To facilitate this , the
respondent rented a place where the minor children could stay while the
applicant exercised her rights of contact. Some permanency of this
arrangement was envisaged as it was mentioned that after 5 years of “ the
mother’s residency in Cape Town” a bond should be obtained (presumably to
buy a home) and the respondent would contribute R50 000 per month until the
youngest child reaches the age of 18 years. Whilst the applicant was still
employed by her employer in Johannesburg, the respondent undertook to pay
for 12 flights between Cape Town and Johannesburg each year.
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[14] Clause 4.3 of the Addendum was relied upon by the applicant to show that
there was not even some degree of permanency as far as the residency of the
children is concerned. This clause reads as follows:
“In the case where the aforementioned agreement reaches dispute and both
parties (mother and father) are unable to maintain an amicable and conducive
environment in the best interest of all the children in Cape Town, the mother
reserves the right to revert back to the Johannesburg living arrangement. In
which case, the mouther will be wholly responsible for the relocation costs
thereof from Cape Town to Johannesburg.”
[15] In my view, th e Parenting Plan, read with the Addendum, indicates that the
parties intended to permanently relocate to Cape Town with the minor children.
They were enrolled in school in this city. Their mother came from Johannesburg
to stay with them. The fact that the applicant failed to secure employment or, for
another reason, decided to move back to Johannesburg does not affect the
children's situation, as they remained ordinarily resident in Cape Town. Their
situation was stable and remained as such at the time this application was
launched. In fact, Cape Town is still the place of residence of the minor
children. The applicant's claim that they should return as agreed does not alter
the current position. The children relocated to Cape Town, where the
respondent maintained his primary residency with the intention that, depending
on future events, they may stay there for a long time. Johannesburg was no
longer their place of ordinary residence.
[16] In my view, ordinary residence denotes more than a temporary sojourn. It
requires that the residence be adopted voluntarily and for a settled purpose,
even if the residence is of limited duration, provided that it is not transient or
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casual. The test is not whether the relocation was immune from future
challenge, but whether, at the relevant time, the children’s residence in Cape
Town bore the hallmarks of ordinary residence.
[17] Ordinary residence does not require permanence in the sense of forever . It
requires that the residence not be fleeting or transitory.
[18] The applicant’s relocation back to Johannesburg does not alter the children’s
actual ordinary residence, which must be determined objectively. Put
differently, the applicant's expression of intention to relocate in March 2025
does not alter the factual residence of the minor children at the time this
application was filed. During January 2026, the children were staying in Cape
Town. At that stage, they had been living in Cape Town for more than a year.
They attended school there.
[19] The fact that the respondent maintained a residence in Johannesburg is
irrelevant to determining the children's residency. People may have multiple
residences in various cities. Moreover, the property that the respondent
maintained in Johannesburg was never the home where the parties and their
children lived. The applicant, once back in Johannesburg, stayed with family
and not on her own. She still went to Cape Town for approximately 8 to 9 days
per month, staying at the place the respondent rented for her. To establish the
children’s ordinary residency, the question is which of these residences is
regarded as their primary residence. The fact that the respondent only rented a
property in Cape Town, where the children could stay, is also not decisive to
the question of whether the children were ordinarily resident in Cape Town
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[20] I find that the minor children were ordinarily resident in Cape Town at the time
the application was filed.
[21] The High Court’s role as the upper guardian of minor children does not permit it
to assume jurisdiction where the connecting factors do not exist. Jurisdiction
cannot be created by consent, convenience, or urgency.
[22] The applicant relied on the fact that the divorce action was instituted in this
court about a week before the application was filed. Thus, the divorce action
was pending in the Gauteng Division, Johannesburg, at the time. It was argued
that this application was ancillary to the divorce action, and this would mean
that this court has the required jurisdiction.
[23] I find that the Gauteng High Court, Johannesburg, lacks jurisdiction to deal with
this matter because the minor children ordinarily reside in Cape Town. For this
reason alone, this application stands to be dismissed.
[24] The following order is made:
a. The application is dismissed.
b. The applicant to pay the costs of the application on Scale C.
___________________________
R. STRYDOM
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, JOHANNESBURG
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Heard on: 03 & 05 February 2026
Delivered on: 09 February 2026
Appearances:
For the Applicant: Adv. F. Bezuidenhout
With: Adv. S. Meyer
Instructed by: Shepstone Wylie Attorneys
For the Respondent: Adv. T. Carstens
Instructed by: Theron Inc