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, PRETORIA)
Case No: 2026 - 116573
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED.
DATE:
SIGNATURE
In the matter between:
N[...] K[...] S[...] Applicant
and
MR RAJCOOMAR – ADDITIONAL MAGISTRATE First Respondent
PRESIDING OFFICER CHILDREN’S COURT
PRETORIA NORTH
M[...] A[...] S[...] Second Respondent
NOXOLO NGOBESE (LEGAL AID) OBO Third Respondent
K[...] S[...]
2
K[...] S[...]
K[...] S[...]
REASONS FOR ODER DISMISSING APPLICATION ON 2 JUNE 2026
The judgment and order are published and distributed electronically.
PA VAN NIEKERK, J
INTRODUCTION:
[1] On 2 June 2026, Applicant sought an order by way of urgency , framed in the
notice of motion as follows:
“2. Concerning the order granted in terms of Section 155(6)(b)(ii) of the
Children’s Act 38 of 2005 on the 14 th of May 2026 by the First Respondent
sitting as Additional Magistrate for the Children’s Court – Pretoria North:
2.1 That it be declared unlawful, null and void.
2.2 That the whole of paragraph 1 of the order of the 14 th of May 2026 be
set aside.
2.3 That the terms of the order granted on the 13 th of May 2026 by her
Worship Mrs T Thelede sitting as Additional Magistrate – Presiding
Officer Children’s Court – Pretoria North be and is hereby reinstated.
3
2.4 Costs of suit on attorney and client scale C including costs of
Counsel.
2.5 Further and alternative relief”.
[2] On 2 June 2026, the application was dismissed and no order in relation to cost
was made, as the application was unopposed. The reasons for that order follows
infra.
[3] The First Respondent is a Magistrate who presided in the Children’s Court,
Pretoria North and who granted the impugned order referred to in paragraph 2 of
the notice of motion. Second Respondent is the Applicant’s estranged wife and
natural mother of the children referred to hereunder. Third Respondent is a legal
representative appointed by Legal Aid to represent the minor children born of a
marriage between Applicant and Second Respondent in the Children’s Court
proceedings referred to hereunder.
[4] Applicant and Second Respondent are the natural parents of three minor
children, a boy presently 8 years old, and two girls respectively 6 and 4 years
old. Applicant and Second Respondent separated during August 2025 and
during August 2025 the Second Respondent instituted proceedings in the
Children’s Court, Pretoria North, which resulted inter alia in an investigation by
social workers, that the matter be referred to the office of the family advocate,
4
and that the Third Respondent was appointed to represent the interests of the
minor children in the Children’s Court proceedings.
BACKGROUND TO THE APPLICATION:
[5] The Applicant’s founding affidavit sets out a history of conflict between the
Applicant and Second Respondent which commenced during 2024. Essentially
the Applicant alleges that a child of the Second Respondent born of a previous
relationship who is much older than the three minor children born of the
marriage between the Applicant and Second Respondent has exposed the
minor children to sexual conduct. This, according to the Applicant, manifested
while the children were in his care.
[6] The allegations made by the Applicant resulted therein that the children were
removed and placed in safe custody, pending finalisation of the Children’s Court
proceedings. The matter was enrolled and then again postponed for purposes of
investigation on various occasions, and on 13 March 2026 Mrs Theledi, an
additional Magistrate presiding in the Children’s Court, Pretoria North, made an
order which can be summarised as follows:
[6.1] The Magistrate found that she was unable to make “ an informed
finding as to whether or not the three children involved … are in need
of care and support as contemplated in terms of section 150(1)(f) and
(i) of Act 38 of 2005”;
5
[6.2] The Magistrate held that the Court could not at that stage find that
there were evidence of neglect or abuse against the Applicant as a
result of which the children had to be removed from the safe custody
where they were placed , and then placed the three minor children in
the temporary custody of the Applicant, pending finalisation of the
Children’s Court proceedings;
[6.3] Defined rights of contact to the children were granted to the Second
Respondent;
[6.4] The matter was postponed for purposes of appointment of a legal aid
attorney for the Applicant in those proceedings (Second Respondent
in this matter) and a legal aid attorney for the minor children.
[7] The matter was eventually again set down for hearing on the 14 th of May 2026.
On 13 May 2026 ,o ne day before the hearing, the Applicant sent an email letter
to the Magistrate of the relevant Children’s Court informing the Magistrate that
he is called upon to conduct an inquiry as a committee member of the Health
Professional Council of South Africa, for which he is paid a fee and the fee is
part of his basic source of income from which he is able to “ keep afloat with the
caregiving child -centred interests of the minor children” . The letter terminates
with a request that the matter be postponed to the 28 th or 29 th of May,
alternatively on the 5 th of June, or the 11 th and 12th of June 2026. After sending
this letter, the Applicant did not present himself during the Children’s Court
6
proceedings which was set down for the 14 th of May 2026. Nobody appeared on
behalf of Applicant to seek a postponement, and it appears from the affidavits
filed by Applicant that he expected as of right that the matter would be
postponed at his behest.
[8] On 14 May 2026, First Respondent made an order in terms of the Children’s Act
which reads:
“An order is granted in terms of section 155(6)(b)(ii) that all three children be
placed in the temporary safe care of the biological mother M[...] A[...] S[...] (ID
no. 8[...]) with immediate effect, pending finalisation of the matter”.
[9] The Applicant effectively sought in the notice of motion an order that the order
referred to supra granted on 14 May 2026 be set aside and the order referred to
in paragraph 6 supra be reinstated.
SERVICE OF THE APPLICATION:
[10] Applicant deposed to an affidavit stating that he attempted to serve the
application on Second Respondent personally, and she refused to accept
service. The application was served on the other Respondents by email. No
reasons are advanced why the application was not served in terms of the
provisions of rule 4(1) of the uniform rules of Court. No cogent reasons exist why
the matter was so urgent that non-compliance with Rule 4(1) of the uniform rules
of Court should be condoned.
7
[11] In my view, there was no proper service of the application on any of the
Respondents. The application seeks drastic relief which materially affects the
rights of second Respondent and seeks to impugn an order of court. Proper
service in terms of the rules is essential before such relief may be granted by
this court, and paying mere lip service to the requirements of Rule 4(1) in the
absence of compelling reasons erodes the rule of law. When this issue was
raised with Applicant’s counsel, no attempt was made to request that the matter
be removed from the roll or postponed or st and down in order to cure the
deficient service of the application on the Respondents. It thus follows that, on
this ground alone, the application stands to be dismissed.
[12] However, for the reasons that follow, I am of the view that the application is
devoid of merit.
GROUNDS FOR THE RELIEF SOUGHT BY THE APPLICANT:
[13] Counsel acting on behalf of Applicant argued that the Court is bestowed with the
necessary jurisdiction to provide a “ declaratory order” that the impugned order
was granted unlawfully by virtue of the provisions of section 21(1) (c) of the
Superior Courts Act 10 of 2013. In support of that contention, it was argued on
behalf of the Applicant that the Magistrate who made the impugned order did so
in the absence of the Applicant, without stating the reasons, and that such
procedure is therefore “ unlawful” and falls to be set aside. This submission is
bad in law, as the provisions of section 21(1)(c) of the Superior Courts Act refers
8
to matters where no relief can be claimed consequential to a determination of
some existing, future o r contingent right or obligation, and is a discretionary
remedy. That provision of the Superior Courts Act does not provide a remedy to
a litigant to circumvent prescribed statutory or common law remedies, nor does
it provide the court with an unfettered discretion to interfere with the orders
made by another court without the appropriate remedies such as review or
appeal being employed.
[14] The Applicant sets out averments in paragraphs 67 to 74 of the founding
affidavit, which serves to disclose the grounds for impugning the order of 14 May
2026, and these allegations are summarised as follows:
[14.1] The circumstances under which the First Respondent made the order
is not clear to the Applicant;
[14.2] The Applicant formally requested a postponement and indicat ed
when the matter could resume; The order was thus made in the
absence of the Applicant;
[14.3] When the First Respondent made the impugned order he did so when
he was “ex lege, functus officio” and then Applicant proceeds to aver:
“I humbly submit that it is trite in South African law that a Magistrate
generally cannot alter or set aside the decision, order or directives of
another Magistrate”.
9
[15] A perusal of the aforesaid paragraphs in the Applicant’s founding affidavit clearly
disclose that the Applicant’s grounds to impugn the order made by the First
Respondent on 14 May 2026 is based thereon that such an order was
incompetent because the Magistrate was not empowered to amend the order
dated 20 March 2026 referred to in paragraph 5 supra, because First
Respondent was “ex lege, functus officio”.
DID THE APPLICANT DISCLOSE GROUNDS TO SET ASIDE THE IMPUGNED
ORDER?
[16] On the Applicant’s averments it is clear that the reasons why First Respondent
granted the impugned order is not know n to the Applicant. The reason for this
lacuna is the fact that the Applicant was not present at Court when the
impugned order was granted, no r did he request reasons and/or the record of
that Court. If the reasons for making that order is not disclosed by way of an
appeal or review, this Court does not have an unfettered jurisdiction to set the
impugned order aside.
[17] The Children’s Court is established in terms of chapter 4 of the Children’s Act,
No. 38 of 2005 (“ the Act” ) and in terms of section 43 of the Act, a Children’s
Court is a Court of record and has a similar status to that of a Magistrate’s Court
at district level. The matter s which a Children’s Court may adjudicate are
regulated in terms of section 45 of the Act, which includes an order for the
temporary safe care of a child, care of or contact with a child . In terms of section
10
46 of the Children’s Act, a Children’s Court may make orders including an order
that a child be placed in temporary safe care. Section 48 of the Children’s Act
provides additional powers to the Children’s Court which includes the power to
extent, withdraw, suspend, vary or monitor any of its orders
[18] In terms of section 46(2) of the Act, a Children’s Court may withdraw, suspend
or amend an order made in terms of sub-section (1) of section 46 of the Act. The
Children’s Court may therefore revisit any order made under the provisions of
section 46(1) and withdraw, suspend or amend such order. The impugned order
was clearly made in terms of the provisions of section 46(2) of the Act, and the
grounds advanced by Applicant in paragraphs 68 to 74 of Applicant’s founding
affidavit are therefore legally untenable.
[19] The order made by a Children’s Court is subject to appeal in terms of section
51 of the Act, which reads:
“51. Appeals
(1) Any party involved in a matter before a Children’s Court may appeal
against any order made or any refusal to make an order, or against
the variation, suspension or rescission of such order of the Court to
the High Court having jurisdiction;
11
(2) An appeal in terms of sub-section (1) has been noted and prosecuted
as if it were an appeal against a civil judgment of a Magistrate’s
Court, subject to section 45(2)(c)”.
[20] The impugned order is an order which falls under section 51(1) of the Act. The
application in casu is neither a review nor an appeal. Where the Children’s Act
provides the Applicant with specific remedies to appeal against the impugned
order, the present procedure followed by the Applicant is improper. In my view
the High Court does not have unfettered jurisdiction to interfere in an order
made by the Magistrate in Children’s Court proceedings on vague allegations
without the procedure of a proper appeal process where the reasoning of the
Magistrate who issued the impugned order can be tested against the
applicable facts and/or the applicable law.
[21] Applicant may approach the Children’s Court and seek an amendment o f the
impugned order in terms of section 46(2) of the Act, which is a procedure which
is best suited to the nature of the present dispute because the matter is pending
in that Court, and that Court has already made extensive use of it’s power to
investigate the matter by appointing various functionaries.
As a result, the Application was dismissed and no order was made on cost.
_________________________________
P A VAN NIEKERK
JUDGE OF THE GAUTENG DIVISION,
12
PRETORIA
APPEARANCES
FOR APPLICANT Adv M M Sono
INSTRUCTED BY
Samalenge Attorneys, Pretoria
FOR RESPONDENTS No appearance