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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NO: 2025-202092
In matter between:
K[…] G[...] APPLICANT
(IDENTITY NUMBER: 8[…] )
and
S[…] V[…] G[...] (previously N[… ]) RESPONDENT
(IDENTITY NUMBER: 8[…] )
EX TEMPORE JUDGEMENT
INTRODUCTION
[1] This application is an opposed urgent application for the immediate return
of two minor children to Johannesburg, pending a competent Court Order
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES / NO
(3) REVISED: YES / NO
______________ ______________________
DATE SIGNATURE
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regarding residence, care, contact, and/or any proposed relocation.
[2] The parties are the biological parents of the minor children, namely I [… ] G[...]
(born 2018) and A[…] G[...] (born 2023).
[3] There are divorce proceedings pending between the parties and a Rule 43
application which is still to be decided. There is also a pending investigation
which is about to be commenced by the Office of the Family Advocate, with a
meeting which has been scheduled for the parties on 14 May 2026.
[4] It is common cause that the Respondent launched an urgent application on
28 March 2026 in terms of Rule 43 for inter alia leave for the Respondent to
relocate the minor children to Cape Town. However, on the same day as
launching the application, and without waiting for the matter to be argued, the
Respondent removed the minor children from the former matrimonial home,
where they had been residing with both parties, and moved to Cape Town,
where she and the children are currently residing.
[5] The Respondent argues that the current application ought to be struck from
the urgent roll, alternatively dismissed with costs , on the basis that it is, in
substance, an attempt to re-litigate, on an urgent basis, the same issue which
was already decided by Her Ladyship Justice Mia in the prior urgent Rule 43
proceedings on 10 April 2026. On that occasion t he matter was struck from
the urgent roll and the Respondent was directed to proceed in the ordinary
course.
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[6] The Respondent submits that the Applicant was in effect forum shopping, that
the Applicant had failed to establish; genuine urgency, a clear right to the final
effect relief now sought, and/ or that the best interests of the minor children
require this Court to override the pending ordinary course processes,
including the imminent Family Advocate investigation.
[7] The Applicant however submits that the issue before this Honourable Court is
not the final adjudication of a relocation dispute, which formed the subject of
the opposed Rule 43 application heard by Her Ladyship Justice Mia but it i s a
determination of whether the Respondent, the mother of the minor children,
having removed the minor children from Johannesburg to Cape Town on or
about 28 March 2026, without the Applicant’s consent and in the absence of
any court order, ought to be permitted to retain and benefit from the
consequences of that unilateral and “taking the law into her own hands”
conduct.
[8] The Applicant distinguishes the proceedings before Her Ladyship Justice Mia
from the current application on the basis that the issue before Her Ladyship
Justice Mia was the respondent’s application for consent to relocate as
prayed in her notice of motion. It is that application which was struck from the
roll for lack of urgency. The current application however is limited to the issue
of the return of the minor children to Johannesburg.
[9] Counsel for the Applicant argued that the reasonable assumption is that on
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hearing the order granted by the Ladyship Justice Mia, striking the matter
from the roll due to lack of urgency and awarding costs in the applicant’s
favour, the Respondent would have returned to Johannesburg as she did not
receive the order prayed for , namely consent to relocate with the minor
children to Cape Town as prayed for in her Rule 43. Her failure to do so and
her stated intention to remain in Cape Town, coupled with her decision to
enrol the minor children in school in Cap e Town gave rise to the current
urgency which forms the basis of this application.
[10] The Applicant submit ted that in matters concerning minor children, the Court
exercises its jurisdiction as upper guardian of all minor children and with due
regard to determining what is in the minor children’s best interests. The
applicant submits that c entral to that inquiry is the well -established principle
that self-help and the creation of a fait accompli are impermissible and ought
not to be sanctioned, whether directly or indirectly.
[11] Counsel for the Applicant further argued that the relief sought by the applicant
is interim, restorative, and protective in nature. It is directed at restoring the
status quo ante as it existed prior to the Respondent’s unilateral conduct,
pending the adjudication of all issues relating to residence, care, contact,
and relocation in due course, which issues remain extant and in dispute.
[12] Counsel for the respondent argued that were the applicant to be successful, it
would destabilise the children even more as they would be returned to
Johannesburg in the short term and were the respondent to be successful in her
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application for relocation, they would have to move again. He further stated that
this could not be in the minor children’s best interests. In my view this is the
direct result of the respondent’s actions in removing the children from Gauteng
with the knowledge that the applicant did not agree with the relocation and in the
absence of a court order.
[13] The Applicant’s position is that this situation has resulted in ongoing and
immediate prejudice to the children, including disruption to their established
routines, schooling, therapeutic support, and their relationship with him. He
contends that the current circumstances are unstable and harmful, and that the
Respondent has effectively created a new factual position through unilateral
conduct, which she now seeks to maintain pending determination in the
ordinary course.
[14] The Respondent argued that any urgency was self -created by the applicant.
This argument cannot stand however as the urgency flows from the
Respondent’s deliberate creation of a new factual position.
[15] During argument, counsel for the applicant submitted that substantial redress
cannot be achieved in the ordinary course. The usual procedures, including
investigations by the Family Advocate and the timelines applicable to
opposed motion proceedings, are likely to take several weeks. In the interim,
the current unlawful position may become entrenched, with increasing
prejudice to the minor children. It was therefore contended that this
application is the only effective means of restoring the previous positi on
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pending a proper judicial determination.
[16] The applicant further contends that the urgency of the matter is heightened
by the respondent’s conduct in relocating the minor children before her own
relocation application had been decided, and thereafter continuing to retain
them after that application was struck from the urgent roll. It is argued that this
amounts to the creation of a fait accompli, through which the respondent
seeks to benefit from unilateral action and establish a new status quo outside
the proper legal process. On this basis, the applicant submits that the present
application is not premature but is necessary to restore legality and avoid
further prejudice.
[17] On the respondent’s own version, the question of where the children should
reside remains a live and disputed issue, and no court order currently
regulates their care or primary residence.
[18] The matter was struck on the previous occasion on the issue of the urgency
which the Respondent argued then and not on the scenario which is before
me now. On this occasion it is the Applicant who argues urgency based on
the failure of the Respondent to return to Johannesburg notwithstanding her
failure to obtain leave to reside in Cape Town on an interim basis by her
ladyship Justic Mia and her attempts to have the children enrolled in schools
in Cape Town. There are new facts which have arisen indicating the
Respondent’s continued resolve to retain the minor children in circumstances
in Cape Town.
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[19] This Honourable Court finds that as Upper Guardian of the minor children this
matter is indeed urgent and on the basis of the principle of the paramountcy
of the minor children’s best interests this Honourable Court will pronounce
upon their interim residency arrangements.
[20] The respondent’s submission that the matter should proceed in the ordinary
course fails to take account of the practical consequences of delay. A
postponement of several weeks may serve only to consolidate the altered
living arrangements, thereby making any return to the children’s previous
stable environment increasingly difficult. A party cannot rely on delay to
legitimise self-help. Rather, urgent intervention may be warranted to prevent
an unlawful status quo from becoming the effective arrangement by default.
[21] Counsel for the respondent argued that the Respondent’s actions were
necessitated by the untenable living conditions in which the parties were
residing and that she acted as a lioness to protect her children from the harm
being done to them in living in such a strained environment.
[22] This argument is not sustainable – if the Respondent needed to move out of
the former matrimonial home, this should have been negotiated between the
parties and if the parties could not reach agreement, she could have
approached this Court, or an alternative court for the relevant relief.
[23] As regards the argument that the Applicant is not motivated by his concern for
the best interests of the minor children but by his own comforts, I do not find
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any support for this in the papers. On the contrary, the Applicant has placed
the children at the centre of the issue. He has not, as argued by counsel for
the Respondent in argument, sought to have the children returned to
somewhere in Johannesburg because he does not want to commute to Cape
Town, he has sought the restoration of the status quo ante that existed prior
to the Respondent’s departure to Cape Town.
[24] As counsel for the Applicant correctly limited the current enquiry to the issue
of the restoration of the status quo ante that was in place prior to the
Respondent’s relocation with the children to Cape Town, it is not necessary to
canvass the issue of the relocation itself, which will be dealt with in the
ordinary course, assisted by the necessary investigations as ordered by Her
Ladyship Justice Mia.
[25] The assistance of the Office of the Family Advocate is always useful and
significant. However, this Honourable Court is not bound by the investigation
of the Office of the Family Advocate and it would not be incumbent on this
Court to await the outcome of an investigation, which has not yet
commenced, in restoring a status quo ante in the interests of providing
stability for the minor children, at least on an interim basis.
[26] On the issue of costs, I see no reason to depart from the standard that costs
follow the result and accordingly grant costs as prayed by the Applicant.
[27] The Applicant further seeks an order which interdicts the Respondent from inter alia
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removing the children from Johannesburg, and enrolling them in a school other than
their habitual school . I am of the view that the Applicant has satisfied the
requirements for interim relief and that he has shown the necessity for granting
such interdicts.
[28] For the reasons set out above, I make the following order:
1. Condonation is granted for t he Applicant’s non-compliance with the Rules of
Court and this application is heard as one of urgency in terms of the provisions of
Rule 6(12) of the Uniform Rules of Court.
2. The Respondent is directed to return the minor children, namely I […] G[...] and
A[…] G[...], to Johannesburg by no later than 1 May 2026.
3. Pending the finalization of the Rule 43 application to be heard in the normal
course:
3.1. the minor children are to be returned to Johannesburg;
3.2. the Respondent is interdicted and restrained from removing the minor
children from Johannesburg;
3.3. the Respondent is interdicted and restrained from relocating the minor
children to Cape Town or any other jurisdiction outside of Johannesburg;
3.4. the Respondent is interdicted and restrained from enrolling the minor children
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in any educational institution without either the Applicant’s written consent or
an order of this Honourable Court.
3.5. the Respondent shall comply with all necessary steps to ensure the re -
enrolment, if necessary, and continued attendance of the minor children at
their respective schools and therapeutic programmes in Johannesburg.
4. The Applicant is authorised, for purposes of giving effect to this Honourable
Court’s order, to:
4.1. travel to Cape Town and collect the minor children, namely I […] G[...] and
A[…] G[...], and return them to Johannesburg; alternatively
4.2. make all necessary arrangements, in consultation with the Respondent
where possible, for the safe and immediate return of the minor children to
Johannesburg.
5. The Respondent is directed to cooperate fully with such arrangements and to do
all things necessary to facilitate the return of the minor children, including making
them available for collection at a date, time, and location specified by the
Applicant.
6. In the event that the Respondent fails and/or refuses to comply with the
provisions of paragraph 5 above:
6.1. the Applicant shall be authorised to attend at the Respondent’s address in
Cape Town, or wherever the minor children may be, for purposes of
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collecting the minor children and returning them to Johannesburg.
7. The Respondent is directed to immediately hand over the minor children,
together with all their personal belongings, identity documents, and any travel
documentation, to the Applicant.
8. The Respondent is directed not to obstruct, hinder, or interfere with the
Applicant in giving effect to this order.
9. The Respondent shall pay the costs of this application on the scale as between
attorney and client, including the costs of counsel.
___________________________
R LANGE
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, JOHANNESBURG
Appearances
For the Applicant: Adv A Saldulker
saldulker@counsel.co.za
Cell: 072 461 7147
Instructed by: C Olckers Attorneys Inc.
celeste@olckersattorneys.co.za
Cell: 073 547 4212
For the Respondents: ADV. A R VAN DER MERWE
Counsel for the Respondent
083-390 7500
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alan@advarvdm.co.za
Date of hearing: 21 APRIL 2026
Date of judgment: 22 APRIL 2026