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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: 2025/012875
In the matter between
A[...] J[...] V[...] V[...] APPLICANT
and
MAGISTRATE M HARICHAND FIRST RESPONDENT
E[...] L[...] W[...] SECOND RESPONDENT
ADV CAROLINE FOORD N.O. THIRD RESPONDENT
JUDGMENT
HINRICHSEN AJ
Introduction
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
20 March 2026 _________________________
DATE SIGNATURE
[1] This is a review application in which the applicant, the father of a minor
child, seeks to review and set aside proceedings conducted on the 7 th of
November 2024 in the Children's Court for the District of Tshwane
Central, presided over by the first respon dent, Magistrate M Harichand,
together with the orders made on that date. The applicant also seeks to
impugn the further proceedings conducted before a substitute presiding
officer in the same Court on 5 February 2025.
[2] The third respondent, Advocate Carol ine Foord N.O., has been cited in
her official capacity as the Court appointed legal representative of the
minor children. No relief is sought against her, and she abides by the
decision of this Court.
[3] The second respondent, the mother of the minor child, E[...] L[...] J[...]
V[...] V[...] (“E[...] ”), opposes the application to the extent only of
resisting a cost order against her. She has filed an answering affidavit
deposed to by her and does not oppose the substantive relief.
[4] The first respondent has not filed an answering affidavit and has elected
to abide by this Court's decision.
The factual matrix
[5] The factual background to this application is somewhat convoluted. It
involves multiple proceedings in different Courts, a tangle of parallel
litigation, and the conduct of a judicial officer who, fundamentally
misapprehended the limits of h er statutory jurisdiction. I shall set out the
essential chronology.
[6] The parties, the applicant the second respondent were married . They
were later divorced by order of the Gauteng Local Division,
Johannesburg on 5 May 2023, under case number 2023/00068. The
decree of divorce incorporated a deed or settlement dealing inter alia
with care, contact and maintenance in respect of the minor child E[...] ,
born on the 8 th of May 2018. In terms of that settlement the part ies
shared parental responsibilities and rights , with primary residen cy being
awarded to the second respondent.
[7] During or about mid-2023, serious allegations emerged involving the
applicant an d both minor children, E[...] , and C[...] A[...] R[...], the
second responde nt’s daughter from a prior relationship. These
allegations were referred to the Kidz Clinic, Boksburg and thereafter to
the South African Police Services, Kempton Park, under case number
54/08/2023.
[8] On 14 August 2023 the second respondent launched an application in
the Children's Court for the District of Kempton Park, (Ekurhuleni North)
under case number 14 /1/4/88/2023 (“the Kempton Park matter ”). She
sought, in terms of section 28 of the Children's Act, Act 38 of 2005, (“the
Act”) to suspend alternatively terminate the applicant's parental
responsibilities and rights in respect of E[...] , pending the outcome of the
investigation and criminal proceedings.
[9] At the time of launching the Kempton Park matter, both the second
respondent and E[...] resided in the Kempton Park magisterial district.
The applicant resided in Boksburg. The Kempton Park Children's Court
therefore had jurisdiction over the matter.
[10] At the first appearance in the Kempton Park Children's Court on 11
September 2023, the Court ordered the appointment of a social worker
and a legal representative for E[...] . The third respondent, Advocate
Foord, was duly appointed as E[...] ’s legal representative.
[11] On 20 December 2023, the applicant brought an urgent application in
this Court under case number 2023/133232 before Acting Justice
Strydom, seeking the suspension of the second respondent's parental
rights and responsibilities in respect of E[...] pending the Kempton Park
hearing scheduled for 29 January 2024. That relief was granted and
E[...] was placed in the care of the applicant. The Kempton Park matter
has remained active and part -heard since August 2023 - now
approaching almost three years of proceedings.
[12] A significant milestone was reached on 20 January 2025 when the
Kempton Park Court ordered that the applicant, the second respondent
and E[...] to undergo urgent forensic assessments. The matter was
postponed to 12 May 2025 for that purpose.
[13] On 19 July 2024, the applicant launched an arrear maintenance
application in the Pretoria Central Maintenance Court, with reference
number 1022024 /MAI/000762, and obtained a garnish ee order against
the second respondent's salary in respect of alleged arrear school fees.
[14] On 9 September 2024 the second respondent attended the Pretoria
Central Maintenance Court to dispute the garnishee o rder. She was
unrepresented at that stage. According to her, a maintenance officer
advised her that she should approach the Children's Court in Pretoria to
have the divorce decree varied, given the change in circumstances since
its grant. On that same day, and acting on that advice, the second
respondent filed a Form 2 in terms of section 53 of the Children's Act
before the Children's Court for the District of Tshwane Central , under
case number 14/1/566/2024 (“the Pretoria matter”).
[15] The Form 2 describes the nature of the matter as an application to set
aside the divorce settlement and the garnishee order granted against the
second respondent, as obtained by the applicant after her parental rights
and responsibilities had been suspended.
[16] By e-mail dated 6 November 2024, the day before the first appearance
in the Pretoria matter, the second respondent communicated to all
relevant parties, including the Pretoria social worker, Advocate Fo ord,
and the applicant's attorney, her expressed inten tion to withdraw the
Pretoria matter. She acknowledged in that communication that the
application had been made incorrectly, that she had acted on the advice
of the maintenance officer, and that the ongoing Kempton Park matter
already addressed the relevan t issues concerning E[...] 's care and
contact.
[17] On 7 November 2024, the matter served before the first respondent in
the Tshwane Central Children’s Court . The applicant's attorney, Mr
Bruwer, appeared. The second respondent appeared in person, with the
stated intention of withdrawing the Pretoria matter.
[18] Out the outset Mr Bruwer addressed the Court on the following points:
a. That the Tshwane Central Children’s Court lacked jurisdiction in
light of the pending proceedings in the Kempton Park Children's
Court.
b. That the doctrine of lis pendens applied.
c. That the Kempton Park Court had already made a series of orders
including the appointment of the third respondent as legal
representative and the ordering of clinical assessments; and
d. that it would not be in the interest of justice to fragment or
duplicate those proceedings.
[19] The first respondent's response to those submissions is recorded in the
papers. She stated, firstly, that since E[...] was now residing in the
Pretoria area for approximately 1 year, the Tshwane Central Children’s
Court had jurisdiction and she would not permit the withdrawal of the
matter. Secondly, she stated that the doctrine of lis pendens could never
apply. She then proceeded, of her own accord and without hearing an
application to this effect, to make the following orders:
a. The Department of Social Development, Pretoria, is directed to
investigate as contemplated in section 50 of the Children's Act,
Act 38 of 2005 in respect of E[...] ; and
b. The proceedings will continue on 5 February 2025.
[19] It is also clear from the papers , and specifically from the founding
affidavit, that the first respondent stated or at the very least clearly
indicated during those proceedings that the Kempton Park Children's
Court must close its file and transfer the matter to her Court. That
statement - whether made as a formal order or as a clear and definitive
judicial discretion - forms the epicentre of this review.
[20] On 20 January 2025, the Kempton Park Children's Court, having been
advised of what had transpired before the first respondent , stated
through its presiding officer that it would continue with the hearing unless
a High Court directs otherwise.
[21] On 27 January 2025, a social worker from the Department of Social
Development, Pretoria, contacted the applicant to visit his residential
premises pursuant to the section 50 order made by the first respondent.
The applicant declined, since the Kempton Park Children's Court had
already concluded that part of the investigation.
[22] On 5 February 2025, when the matter came before a different presiding
officer in the Tshwane Central Children’s Court , the first respondent
being ill and on sick leave, the substitute presiding officer, though aware
of this review application and though apparently declining to explore the
merits, nonetheless appointed a new legal representative for E[...] and
directed the social worker to conclude her report in E[...] 's
circumstances. The matter was postponed to 17 March 2025.
[23] This application was launched on 2 February 2025, shortly after the 7
November 2024 proceedings and the consequences became apparent.
The applicable legal framework
[24] This Court's jurisdiction to review the proceedings of the Children's Court
is multi-sourced and well established.
[25] There is no spectrum of reasonableness on a jurisdictional question. The
Tshwane Central Children’s Court, either had jurisdiction or it did not.
[26] The following sections of the Children's Act are central.
a. Section 29(1) provide s that an application in terms of section 28
may be brought before the Children’s Court within whose area of
jurisdiction the child concerned is ordinarily resident.
b. Section 42(1) provide s that, for purposes of the Children’s Act,
every magistrate’s court shall be a children’s court and shall have
jurisdiction on any matter arising from the application of the Act
for the area of its jurisdiction.
c. In terms of section 44(1) the children’s court that has jurisdiction
in a particular matter is the court of th e area in which the child
involved in the ir matter is ordinarily resident . Where it is unclear
which court has jurisdiction in a particular matter, the children’s
court before which the child is brought has jurisdiction in that
matter.
d. Section 46 sets ou t the orders which a children’s court may
make.
e. Section 6 (4)(b) requires that proceedings under the A ct be
resolved as speedily as possible.
f. Section 9 entrenches the ‘child's best interest’ as the standard in
all matters concerning the child under the Act.
Analysis
The jurisdictional competence of the Tshwane Central Children’s Court
[27] The first question is whether the Tshwane Central Children's Court had
jurisdiction to entertain the Pretoria matter at all. The answer, in my view,
is clearly in the negative, but I must deal with the first respondent's
stated rationale, namely that since E[...] had been residing in the
Pretoria area for approximately 1 year, the Tshwane Central Court had
jurisdiction.
[28] There's a fundamental confusion in that reasoning, one which the first
respondent did not interrogate. The Kempton Park Children's Court was
seized of the matter since 14 August 2023. At that time, E[...] and the
second respondent resided in the Kempton Park district. The applicant
thereafter relocated to Pretoria and E[...] , by virtue of the High Court
order of 20 December 2023 temporarily suspending the second
respondent's parental rights and placing E[...] in the temporary care of
the applicant, came to reside with the applicant in Pretoria. E[...] ’s
presence in the Pretoria area was therefore a direct consequence of a
High Court order made in the course of the very litigation being
concluded in the Kempton Park Children's Court.
[29] This is not a case where a child ’s residence has changed in a manner
that might trigger a fresh j urisdictional consideration. The child has been
placed in the temporary care and residen ce of the applicant, pending
finalisation of the Kempton Park Children’s Court proceedings.
[30] More fundamentally, however, the question of whether a change in the
child's residence justifies the opening of a new matter in a different
Children's Court when proceedings are already pending and part -heard
before another Children's Court is not answered by simply asserting
concurrent geographical jurisdiction.
[31] The Children’s Act does not permit a children’s court to direct - out of
own accord - to transfer the matter to another Children's Court on the
grounds of changed residence.
[32] The Tshwane Central Children’s Court had no authority, statutory or
otherwise, to override or circumvent that provision by entertaining a
parallel application and then directing Kempton Park to close its file.
[33] The Tshwane Central Children’s Court also does no t have jurisdiction to
request an investigation in terms of section 50 of the Act in relation to a
maintenance order and an ancillary garnishee order.
[34] The second respondent, to her credit, acknowledges in her answering
affidavit that the relief sought in her Form 2 went beyond what a
Children's Court can grant. The Form 2 sought to set aside the
maintenance order as contained in the divorce settlement an d the
garnishee order. The Tshwane Central Children’s Court has jurisdiction
over none of these matters.
[35] I accordingly find that the Tshwane C entral Children's Court lacked
jurisdiction to entertain the Pretoria matter in the first instance. The first
respondent should have dismissed or struck the matter for want of
jurisdiction. She did not.
The ultra vires transferred direction
[36] The most egregious aspect of the first respondent ’s conduct on 7
November 2024 was her direction - whether framed as a formal order or
a definitive judicial command - that the Kempton Park Children’s Court
must close its file and transfer the matter to the Tshwane Central
Children’s Court.
[37] This direction was wholly without legal foundation. No statute or common
law rule a uthorises the first respondent to direct a coordinate Court to
close its proceedings.
[38] This is an axiomatic principle of judicial organisation. Courts of
coordinate and equal jurisdiction have no supervisory authority over one
another. They are coequal creatures of statute. One Magistrate's Court
cannot instruct another to close a pending case.
[39] The direction was therefore not merely irregular - it was void ab initio. An
order or direction made without jurisdiction produces no legal effect
whatsoever1.
The section 50 investigation order
[40] The section 50 investigation order directed the Department of Social
Development, Pretoria, to investigate as contemplated in section 50 of
the Act in respect of E[...] .
[41] This order is infected by the same absence of jurisdiction that vitiates the
entire Pretoria proceedings. A Court that lacks jurisdiction to hear a
matter cannot make ancillary orders in that matter. The section 50
investigation was ordered by the Tshwane Central Children’s Court in a
matter over which it had no jurisdiction. The order is therefore invalid.
[42] But beyond the jurisdictional defect, there is a practical consideration of
some importance to the child's best interests. The Kempton Park
Children’s Court had already, over the course of the proceedin gs since
1 Municipal Manager, or Tambo Municipality and Another v Ndabeni 2023 (4) SA 421
(CC)
August 2023, made a series of section 50 orders and had commissioned
social work investigations. The most recent Kempton Park order of 20
January 2025 directed urgent clinical assessments of all parties.
[43] A duplicate, parallel investigation by the Department of Social
Development, Pretoria - who had not previously been involved in this
matter - will create inconsistencies, duplication, and potential conflict in
the evidentiary landscape before the Kempton Park Court. It would
burden the parties and the minor child with yet another round of
assessments and home visits, entirely contrary to the s ection 6 (4)(a)
injunction of expeditious resolution.
[44] The section 50 order is set aside.
The 5 February 2025 proceedings
[45] On 5 February 2025, a substitute presiding officer in the Tshwane
Central Children’s Court - the first respondent being on sick leave -
made further orders. These include the appointment of a new legal
representative for E[...] and a direction to a social worker to conclude a
report in E[...] 's circumstances.
[46] These orders are equally infected. A Court that lacked jurisdiction on the
7th of November 2024 did not acquire it by 5 February 2025. The
substitute presiding officer, who was aware of this review application,
should not have taken any steps that assumed or purported to exercise
jurisdiction over the subject matter of the proceed ings before the
Kempton Park Children’s Court . The appointment of a new legal
representative for E[...] is particularly concerning, given that Advocate
Foord, was appointed by the Kempton Park Court and holds that
appointment by virtue of an order of a competent Court.
[47] Any purported appointment of a different representative for E[...] by the
Tshwane Central Court, in proceedings that the Court has no jurisdiction
to hear, cannot stand.
[48] The 5 February 2025 proceedings and all orders flowing therefrom are
reviewed and set aside.
The second respondent's position and costs
[49] The cost question requires careful and nuanced considerations. This is a
children's matter at its core, and the overarching lens thro ugh which all
ancillary questions - including cost - must be assessed is E[...] ’s best
interests.
[50] The applicant seeks costs against the second respondent on the
attorney and client scale, premised on allegations of foreign shopping
and wilful or malicious c onduct calculated to undermine the
administration of justice. The second respondent resists that order, citing
her financial circumstances, her stated intention to withdraw the Pretoria
matter before any orders were made, and the fact that the impugned
orders were made mero motu by the first respondent.
[51] Having considered the totality of the papers, the history of this litigation,
and the circumstances in which this application became necessary, I am
of the view that no cost order should be made as between the parties in
these proceedings, and that each party should bear their own costs. My
reasoning follows.
[52] The primary and proximate cause of the irregularity which necessitated
this review application was not the second respondent's conduct but the
first respondent's fundamental and unreserved misapprehension of her
own jurisdiction. The impugned orders of 7 November 2024 were not
made at the second respondent's request. They were made mero motu
after the second respondent had presented herself before the Tshwane
Central Children’s Court that morning for the stated and documented
purpose of withdrawing the Pretoria matter.
[53] The second respondent had communicated this intention unequivocally
to all parties in writing, by e-mail dated 6 November 2024, the day before
the Court appearance. In that correspondence , she expressly
acknowledged that the application had b een made erroneously and
confirmed there was no intention to continue with or duplicate the
Kempton Park proceedings.
[54] In these circumstances, the ordinary costs principle that costs follow the
result does not apply with its usual force. The second respond ent did not
oppose the substantive relief sought in this application. She opposes
costs only. A cost order is not granted as a penalty against a party who
did not contest the review on its merits and who was not the true author
of the conduct the review was required to correct.
[55] The second respondent was unrepresented when she filed the Form 2 in
September 2024. She deposed that she acted on the advice of a
maintenance officer. Whether that advice was correct or not - and it
manifestly was not - acting on t he erroneous advice of an official of the
Court is a materially different species of conduct from deliberate,
calculated forum shopping.
[56] On the evidence before me , I am not satisfied that the second
respondent approached the Tshwane Central Children’s Court with the
intention of circumventing or collaterally attacking the Kempton Park
proceedings. Her explanation is not inherently improbable and has not
been convincingly refuted in the replying affidavit.
[57] It is further relevant that on 7 November 2024, before any orders were
made, the applicant's attorney addressed the first responden t
extensively on the jurisdictional objections and the doctrine of lis alibi
pendens. The second respondent did not oppose those submissions and
was indeed present for the same purpose, namely to withdraw the
proceedings. The costs of the application are therefore attributable to the
first respondent's conduct in making ultra vires orders in the face of
proper and sustained legal argument to the contrary, rather than to any
opposition or resistance mounted by the second respondent.
[58] There is a further and weighty consideration. The parties are the parents
of a minor child whose welfare is the subject of ongoing litigation. Any
costs order against the second respondent in the present proceedings
would, in all likelihood, further deplete the financial resource s available
to her for the continued prosecution of and participation in the Kempton
Park proceedings.
[59] The second respondent has deposed that she has experienced
significant financial hardship as a consequence of the garnish ee order
and the lengthy litiga tion between the parties. A costs order in these
circumstances would potentially compromise her ability to effectively
participate in the Kempton Park proceedings, which would be antithetical
to E[...] 's best interests, as he is entitled to have both parents properly
before the Court that is charged with deciding matters of fundamental
importance to his welfare.
[60] In children's matters, Courts have consistently recognised that the best
interests of the child constitute a powerful consideration in the exercise
of the discretion to award costs, and that the depletion of parental
resources through costs orders may indirectly harm the very child in
whose interests the proceedings are brought.
[61] In the circumstances of this case, justice is best served by directing each
party to bear their own costs.
Order
In the premises, the following order is made:
[62] The proceedings conducted before the first respondent in the Children’s
Court for the District of Tshwane Central under case number
14/1/566/2024 on 7 November 2024 are reviewed and set aside.
[63] The following orders made by the first respondent on 7 November 2024
are reviewed and set aside.
a. The order directing the Department of Social Development Pretoria
to investigate as contemplated in section 50 of the Children's Act,
Act 38 of 2005 , in respect to the minor child E[...] L[...] J[...] V[...]
V[...].
b. Any direction, whether formal or informal, that the Children’s Court
for the district of Kempton Park (Ekurhuleni North) must close its file
and transfer the matter under case number 14 /1/4/88/2023 to the
Children’s Court for the District of Tshwane Central.
c. The order that the proceedings in case number 14 /1/566/2024
continue on 5 February 2025.
d. The proceedings conducted before the substitute presiding officer in
the Children’s Court for the District of Tshwane Central on 5
February 2025, and all orders made therein , including the
appointment of a legal representative for the minor child E[...] L[...]
J[...] V[...] V[...], are reviewed and set aside.
[64] The Children’s Court for the District of Tshwane Central lacked, and
continues to lack, jurisdiction to entertain the application brought by the
second respondent under case number 14/1/566/20244.
[65] The proceedings in case number 14 /1/4/88/2023 remain valid and
exclusively pending before the Children’s Court for the District of
Kempton Park (Ekurhuleni North).
[66] All orders previously made by the Children’s Court for the District of
Kempton Park in case number 14 /1/4/88/2023 - including without
limitation the appointment of the third respondent, Advocate Caroline
Foord, as legal representative for the minor children , the appointment
of experts for clinical assessments, and all investigative orders - remain
valid and full force in effect, unaffected by the impugned Tshwane
Central proceedings.
[67] The Children’s Court for the District of Kempton Park is directed to
proceed with case number 14 /1/4/88/23 expeditiously, with due regard
to section 6(4)(a) of the Children's Act, Act 38 of 2005, and is directed
not to await any further directive or directions from the Children’s Court
for the district of Tshwane Central in relation to that case.
[68] Each party is to bear their own costs in respect of this application.
___________________
DH HINRICHSEN
ACTING JUDGE OF THE HIGH COURT
PRETORIA
DATE OF HEARING: 18 MARCH 2026
DATE OF HANDING DOWN JUDGMENT: 20 MARCH 2026
For the Applicant: Mr. James
Bruwer
James Bruwer Attorneys
Inc
For the Respondent: No Appearance
On behalf of the Minor Child: Adv Caroline Foord