SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NO: 2025-202092
In matter between:
S[…] V[…] G[…] (previously N[…]) Applicant
and
K[…] G[…] Respondent
This judgment is handed down electronically by circulation to the applicant's legal
representatives and the respondent's legal representatives by email and by publication
on Case Lines. The date for the handing down is deemed 17 JUNE 2026.
JUDGMENT
(APPLICATION FOR LEAVE TO APPEAL)
LANGE AJ
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES / NO
(3) REVISED: YES / NO
17/06/2026 ___
DATE SIGNATURE
2
INTRODUCTION
[1] This is an application for leave to appeal against the whole of the judgment and
order granted by this Court on 22 April 2026. The Applicant, Mrs S […] V[…] G[… ]
(previously Naidoo), seeks leave to appeal to the Full Court of the Gauteng
Division, Johannesburg, alternatively to the Supreme Court of Appeal. The
Respondent, Mr K […] G[…] , opposes the application and seeks its dismissal with
costs on the scale as between attorney and client on Scale B.
[2] The order under appeal was granted in urgent motion proceedings brought by the
Respondent. Those proceedings followed the Applicant’s unilateral relocation of
the parties’ two minor children from Johannesburg to Cape Town while matrimonial
proceedings were pending and a Rule 43 application she had launched remained
unresolved.
[3] Subsequent to the granting of the order and, as the Applicant records, without
abandoning her appeal rights , the Applicant complied with its terms. She returned
to Johannesburg with the minor children and is presently residing with them in the
former common home, where the Respondent also resides. The Rule 43
application has not yet been set down for hearing. The Family Advocate process,
which was at an early stage at the time the order was granted, is still ongoing.
[4] The application for leave to appeal is opposed on three principal bases: first, that
the order is not appealable; second, that even if it were appealable, the Applicant
has established neither reasonable prospects of success nor compelling reasons
for the appeal to be heard; and third, that the application has become moot or
devoid of practical effect. As will appear below, the first ground is dispositive. This
Court is satisfied that the order is not appealable and that leave to appeal must
accordingly be refused. The second and third grounds are addressed in the
alternative.
3
BACKGROUND
[5] The parties are married and are embroiled in pending divorce proceedings. A Rule
43 application for interim relief was launched by the Applicant, in which the
relocation of the minor children features as a central issue. That application had
not yet been set down for hearing in the ordinary course at the time of the events
giving rise to the urgent proceedings.
[6] It is necessary to set out with some precision the procedural history, because the
Applicant's argument on urgency and on the competency of this Court to entertain
the second urgent application depends in material part upon the characterisation of
the earlier proceedings before Mia J. The first urgent application was the
Applicant's own application, brought in the context of Rule 43 proceedings, in
which she sought, among other things, leave to relocate the minor children to Cape
Town. That application was struck from the urgent roll by Mia J and directed to
proceed in the ordinary course. No determination was made on the merits of the
relocation issue. No relief was granted or refused on the merits. The application
was simply removed from the urgent roll.
[7] It is significant that the application before Mia J was the Applicant's application and
that the substantive relief sought in it was the Applicant's relocation relief.
Whatever submissions the Respondent may have advanced in argument before
Mia J , including any draft order or practice note that may have addressed the
question of the children's return to Johannesburg, those submissions did not
constitute an application by the Respondent for return relief. The Respondent was
the respondent in those proceedings, not the applicant. His return relief was not the
subject matter of any application that had been placed before any court, let alone
adjudicated or refused. The striking of the Applicant's application from the urgent
roll accordingly left the position entirely open: the relocation issue remained
4
unresolved, and the Respondent had not yet launched his own application for any
relief.
[8] Notwithstanding the striking of the first urgent application, the Applicant did not
return the children to Johannesburg. She instead took active steps to entrench
their presence in Cape Town as she sought to enrol them in a Cape Town school.
The Respondent thereupon instituted the second urgent application, his
application, seeking the children's return to Johannesburg. This was the application
that gave rise to the order being challenged. The Respondent's application was a
fresh proceeding, instituted by a different party, seeking different relief, in different
proceedings. The Court accordingly had full and unimpeded jurisdiction to hear and
determine it. This Court found in favour of the Respondent and granted the order
on 22 April 2026.
[9] The Applicant thereafter brought an urgent application for a stay of execution
pending leave to appeal, which was refused with costs. She subsequently
complied with the order being challenged.
THE LEGAL FRAMEWORK FOR LEAVE TO APPEAL
[10] Section 17(1)(a) of the Superior Courts Act 10 of 2013 (“the Act”) provides that
leave to appeal may be granted where the court is of the opinion that the appeal
would have a reasonable prospect of success, or that there is some other
compelling reason why the appeal should be heard, including conflicting judgments
on the question involved.
[11] The threshold is deliberately more stringent under the current Act than under its
predecessor. In S v S and Another 2019 (6) SA 1 (CC) at paragraph 30, the
Constitutional Court confirmed this. The word “would” in section 17(1)(a) imposes a
higher bar than “might”: it requires a realistic and not merely remote prospect that
another court would in fact reach a different conclusion. Mere disagreement with
5
the reasoning of the court a quo, or the fact that the issues are arguable, does not
suffice.
[12] The compelling reasons ground provides a separate basis for granting a litigant
leave to appeal , independent of reasonable prospects. It may be invoked where
the matter raises a novel or important question of law, where there is a conflict of
authority, or where some other consideration of public or legal importance renders
the hearing of the appeal necessary or appropriate in the interests of justice.
However, a litigant cannot invoke the compelling reasons ground as a substitute for
demonstrating reasonable prospects merely by asserting that the issues are
interesting or legally complex.
[13] Before either of those enquiries can be reached, the threshold question of
appealability must be resolved. An order that is not appealable cannot attract leave
to appeal regardless of the merits.
APPEALABILITY
The statutory bar under section 16(3)
[14] Section 16(3) of the Act provides, in peremptory terms, that no appeal lies against
an order “given on an application” for interim custody, care or access in pending
matrimonial or parental proceedings. The purpose of this provision was
authoritatively stated by the Constitutional Court in S v S and Another
1 at
paragraphs 30 to 35 and 48 to 58. The Court confirmed that the bar is
constitutionally valid and serves a pressing purpose: the preservation of a speedy,
inexpensive and accessible interim remedy in matrimonial litigation. The section is
designed to prevent interim child-related orders from becoming launching pads for
tactical appellate delays that consume resources, protract litigation, and prejudice
the very children whose welfare the orders are designed to protect.
1 2019 (6) SA 1 (CC)
6
[15] The Applicant's primary argument in favour of appealability is that the order was
not granted “in” a Rule 43 application but in separate urgent motion proceedings.
She submits that section 16(3) therefore has no application, and she further seeks
to distinguish the present order from the order considered in S v S on the basis that
the present order was granted in separate urgent proceedings and is in substance
a coercive mandatory return order rather than a conventional interim care,
residence and contact order.
[16] These submissions require careful consideration ; Appealability under section 16(3)
depends not on the procedural form of the application, but on the substance,
character, and effect of the order. An order that operates as an interim regulation of
the children’s care, residence, and contact during pending matrimonial litigation
does not fall outside section 16(3) merely because it was obtained by way of
separate urgent motion proceedings rather than under Rule 43. To hold otherwise
would elevate form over substance and undermine the statutory bar, since any
party seeking to appeal an interim child-related order could avoid section 16(3)
simply by framing the matter as a separate urgent application.
[17] The Applicant's characterisation of the order as a “mandatory return order coupled
with prohibitory interdicts” has descriptive accuracy but does not assist her. The
question is not whether the order resembles a conventional Rule 43 order in its
terms, but whether it functions as interim regulation of the care, residence, and
movement of children during pending matrimonial proceedings. This order plainly
functions as such. Its opening terms acknowledge the pending Rule 43 application.
Its operative provisions are expressed to endure only until the Rule 43 application
is finalised. The relocation dispute that gave rise to the urgent proceedings is the
central issue in the Rule 43 application. The order does not resolve that dispute. It
central issue in the Rule 43 application. The order does not resolve that dispute. It
regulates the interim position pending its resolution. In substance and in effect, the
7
order is an interim child-related order within the meaning of section 16(3),
regardless of the procedural path by which it was obtained.
[18] This conclusion is consistent with the approach in JL v DJ 2, where a court in this
Division held that interim orders concerning children in the context of ongoing
matrimonial litigation are not rendered appealable merely by pointing to their
practical effect on the children or their parents. It is also consistent with PC v CC3,
which held that pendente lite child-related orders are appealable only in
exceptional circumstances and that the bar established by section 16(3) and the
policy considerations underlying it apply to orders that function as interim
regulation of the children's circumstances, irrespective of the precise form of the
application. In DTL v GB (Leave to Appeal)
4, an order suspending a parent's
contact with a child for a limited period pending further proceedings was held not
appealable because it met none of the Zweni indicators. The Court accordingly
refused leave to appeal with costs.
[19] I accordingly hold that the order falls within the prohibition in section 16(3) of the
Act. No appeal lies against it as of right.
The common-law and interests-of-justice test
[20] The Applicant invokes the interests -of-justice standard confirmed by the
Constitutional Court in City of Tshwane Metropolitan Municipality v Afriforum and
Another
5 at paragraphs 40 to 42, and submits that even if section 16(3) applies,
the practical effect of the order is such that the interests of justice require appellate
scrutiny. She further relies on Philani -Ma-Afrika and Others v Mailula and Others 6
2 2024 JDR 4447 (GJ)
3 2025 JDR 4448 (GP)
4 2023 JDR 2872 (GJ)
5 2016 (6) SA 279 (CC)
6 2010 (2) SA 573 (SCA)
8
at paragraph 20, and S v Western Areas Ltd and Others 7 at paragraphs 20 and 24
to 28, for the proposition that a decision not appealable under the strict Zweni
formulation may nonetheless be appealable in the interests of justice.
[21] The argument requires consideration. It is correct that the common-law test for
appealability, as articulated in Zweni v Minister of Law and Order 8, has been
modified by constitutional jurisprudence. The Zweni criteria, namely that the
decision be final in effect, definitive of the parties’ rights, and dispositive of a
substantial portion of the main relief, are no longer exhaustive. The interest of
justice is the overarching standard. However, the Zweni criteria remain highly
relevant and are, as the Constitutional Court observed in City of Tshwane, typically
central to the interests-of-justice enquiry. A court should not too readily discard the
Zweni framework in favour of an open-ended interests -of-justice enquiry,
particularly in the context of interim matrimonial relief where the legislature has
itself prescribed the applicable limitation through section 16(3).
[22] Applying the Zweni criteria to the order under challenge, all three indicators point
firmly against appealability. First, the order is not final in effect: it expressly
terminates upon the finalisation of the Rule 43 application. Second, it is not
definitive of the parties’ rights as the relocation dispute remains wholly unresolved
and will be determined in the Rule 43 proceedings. Third, it does not dispose of
any substantial portion of the main relief; it merely restores an interim factual
position pending that adjudication. The order leaves intact every right of every
party in respect of the substantive issues in the litigation.
[23] The Applicant argues that the order has “practical finality” by reason of its
implementation, contending that the order has already caused the children to be
returned to Johannesburg, has placed the Applicant and the children back in the
returned to Johannesburg, has placed the Applicant and the children back in the
7 2005 (5) SA 214 (SCA)
8 1993 (1) SA 523 (A)
9
common home with the Respondent, and has materially altered the children's lived
reality. This submission misapprehends the concept of practical finality in the
appealability context. Practical finality, properly understood, refers to the situation
where an order finally determines an issue between the parties in a manner that
cannot be revisited. That is not this case. The Rule 43 court will consider the
relocation issue on the full record, with the benefit of a Family Advocate report and
such expert evidence as the parties’ place before it and will make an order that
may differ materially from the interim regime established by this order. Nothing in
this order predetermines or constrains that adjudication. The fact that the order has
been physically implemented does not give it the character of finality that is
required for appealability.
[24] The Applicant also contends that the coercive and intrusive nature of the order ,
namely its mandatory provisions, its physical collection authority, its educational
consent restrictions, its regulatory reach over the children's schooling and
therapeutic attendance, renders it exceptional and therefore appealable in the
interests of justice. The Respondent correctly answers that coerciveness, in the
sense of enforceability, is an inherent feature of all court orders. Interim child-
related orders necessarily operate with immediacy and often intrusively. Questions
of residence, schooling, contact and movement are inherently practical matters. If
practical intrusion or mandatory content were sufficient to render such orders
appealable, the bar in section 16(3) would be rendered meaningless and appellate
courts would be drawn into piecemeal supervision of interim family litigation in a
manner directly contrary to the purpose of the provision. As was observed in JL v
DJ
9, the involvement of children does not, without more, create appealability.
[25] I am not persuaded that the interests of justice require appellate intervention at this
[25] I am not persuaded that the interests of justice require appellate intervention at this
stage. The appropriate forum for the resolution of the relocation dispute, including
9 supra
10
all the legal and factual questions concerning sections 30 and 31 of the Children's
Act 38 of 2005, the children's best interests, the conduct of the parties, and the
proper scope of any interim care arrangements , is the Rule 43 proceedings, which
will be heard in the ordinary course on a full record and with the assistance of the
Family Advocate. The Applicant is not without a remedy. She has the Rule 43
proceedings. Any attempt to use this application for leave to appeal as a
mechanism for obtaining interim appellate supervision of the children's living
arrangements prior to the Rule 43 adjudication, is precisely the species of
procedural fragmentation that section 16(3) was enacted to prevent.
[26] For these reasons, I hold that the order is not appealable. The application for leave
to appeal falls to be dismissed on this ground alone. I proceed, however, to deal
with the further grounds in the alternative, so that the Applicant has the benefit of
this Court's views on the merits for any further application she may bring.
MOOTNESS
[27] The Respondent submits that the application has become moot by reason of the
order's implementation, relying on section 16(2)(a)(i) of the Act. The submission is
that the purpose of the order , namely the restoration of the children to
Johannesburg pending the Rule 43 determination, has been achieved, that the
children have resumed their schooling and routines in Johannesburg, and that any
appellate relief would serve no practical purpose other than to reintroduce
instability into their lives.
[28] The Applicant responds that the order has not ceased to operate. She points to the
following continuing consequences: she remains restrained from removing the
children from Johannesburg or relocating them to Cape Town or any other
jurisdiction outside Johannesburg; she remains restricted in relation to educational
enrolment decisions, which require the Respondent's written consent or a court
11
order; and she and the children are presently residing in the former common home
with the Respondent in circumstances that she regards as untenable. She submits
that a successful appeal could relieve her of these constraints and that the matter
therefore remains practically and legally alive.
[29] I accept that the application is not wholly moot in the technical sense. The
Applicant's analysis of the order's continuing operative effect is correct. The
prohibitory provisions of the order remain in force and continue to regulate her
conduct. A successful appeal could relieve her of those constraints. The mootness
argument is therefore not sustained as a standalone ground for dismissal.
[30] It must be noted, however, that the continuing practical consequences of the order ,
upon which the Applicant relies both to resist mootness and to advance
appealability, cut both ways. The children are now settled in Johannesburg. They
have re-established their schooling and routines. The very disruption that would
attend yet another relocation pendente lite is a consideration that tells against the
granting of leave to appeal. Even if appellate relief were granted and this order set
aside, the Rule 43 court would still be left to determine the relocation issue on the
merits, and the outcome of that determination is uncertain. Granting leave to
appeal in these circumstances risks creating precisely the further disruption and
uncertainty that is inimical to the children's best interests.
ALTERNATIVE: NO REASONABLE PROSPECTS OF SUCCESS
[31] In the event that I am wrong on appealability, I am satisfied in any event that the
Applicant has failed to demonstrate reasonable prospects that another court would
reach a different conclusion. I address each principal ground in turn.
(a) Unlawfulness and the characterisation of the relocation as self-help
12
[32] The Applicant's central submission on the merits is that the Court erred in
characterising her conduct as unlawful self-help or a legally impermissible fait
accompli. She relies on sections 30 and 31 of the Children's Act 38 of 2005.
Section 30(2) permits co-holders of parental responsibilities and rights to exercise
those rights independently unless regulated otherwise by agreement or court order.
Section 31 imposes a duty of due consideration of another co-holder's views but
does not, in terms, impose a prior consent requirement for internal relocation. The
Applicant submits that the Court erred by effectively equating the absence of the
Respondent's consent with unl awfulness, and by treating the absence of a court
order authorising relocation as if it constituted a prohibition against relocation.
[33] This argument has a degree of legal merit as a freestanding statutory proposition.
It is correct that section 31 does not in terms impose a consent requirement for
internal relocation, and it is correct that no court order prohibited the Applicant from
relocating at the time of the move. However, this argument divorces the legal
proposition from the factual and procedural matrix in which the relocation occurred.
The Court did not find that internal relocation is per se unlawful in the absence of a
consent order. The finding was narrower and more contextual: that relocation
conducted unilaterally, in the face of an existing Rule 43 application that had
placed the children's future residence arrangements before the Court, and during
the currency of pending litigation in which the Respondent had formally invoked the
Court's jurisdiction over the children, was conduct that subverted the integrity of the
judicial process and created an improper fait accompli. That finding is not the same
as holding that internal relocation without consent is always unlawful.
[34] The question of whether a co-holder's unilateral relocation during pending judicial
[34] The question of whether a co-holder's unilateral relocation during pending judicial
proceedings, in the face of a known and litigated dispute about residence,
constitutes impermissible self-help is not answered by sections 30 and 31 alone. It
engages the Court's inherent jurisdiction to prevent the unilateral alteration of the
13
subject matter of pending litigation and, more particularly, the Court's jurisdiction as
upper guardian of minor children to preserve the status quo pending adjudication
where a party has sought to pre-empt the Court's determination. The Applicant
herself had launched Rule 43 proceedings requesting consent to relocate the
minor children to Cape Town. She was therefore not acting in a legal vacuum but
in the shadow of pending judicial proceedings to which she was the applicant and
in which the children's future care arrangements were directly in issue. Her
conduct, properly viewed, fell squarely within the category of self-help that courts
have consistently declined to condone.
[35] The Applicant contends that her having launched the Rule 43 proceedings is
inconsistent with a finding of wilful disregard of judicial process. This contention
does not assist her. The fact that she had approached the Court for relocation relief
made her unilateral relocation before that relief was granted all the more difficult to
justify. A litigant who has invoked the Court's jurisdiction in relation to a particular
matter cannot simultaneously act as though that jurisdiction does not exist. Having
placed the relocation issue before the Court, the Applicant was obliged to await the
Court's determination.
[36] Another court would not, in my view, find that the Court committed a material
misdirection in this regard. The factual finding that the Applicant created a fait
accompli is supported by the record. The legal conclusion that this warranted
urgent restorative relief is consistent with this Court's role as upper guardian of all
minor children and with the general principle that litigants may not unilaterally alter
the subject matter of pending litigation in order to gain a tactical advantage. This
ground does not establish reasonable prospects of success.
(b) The best interests enquiry
14
[37] The Applicant submits that the Court conducted a materially deficient best interests
enquiry. She identifies specific failures: the Court did not adequately consider the
emotional impact on the children of a second cross -provincial relocation; did not
consider the changed circumstances of the Johannesburg household following
matrimonial breakdown; did not engage with her evidence of the measures she
had taken to provide continuity and stability for the children in Cape Town; failed to
consider that the Respondent had produced no independent or expert evidence
establishing that Cape Town was an unsuitable environment; and placed excessive
weight on the restoration of the status quo ante as if it were synonymous with the
children's best interests. She further contends that the Court ought to have
deferred to the imminent Family Advocate investigation rather than granting
coercive relief before that process could run its course.
[38] The best interests enquiry in urgent restorative proceedings necessarily operates
under significant constraints. A court seized with an urgent return application does
not have the luxury of the full evidential and investigative framework that a final
adjudication affords. It does not have the benefit of a Family Advocate report,
which exists precisely to assist the Court with a structured and independent
assessment of the children's actual circumstances and developmental needs. It
must assess a paper record that is frequently incomplete, partisan and contested.
It would accordingly be an error of principle to judge the best interests analysis
conducted in these proceedings against the standard appropriate to a final
adjudication.
[39] The correct question is whether the Court conducted an appropriate assessment of
the children's best interests in the context of urgent restorative proceedings ,
recognising that the ultimate determination of those interests is reserved for the
recognising that the ultimate determination of those interests is reserved for the
Rule 43 court, and whether that assessment justified the relief granted on an
interim basis. Viewed through that lens, the Court's reasoning is defensible. It
15
identified the risk that the children's established connections to Johannesburg,
namely their schooling, their therapeutic relationships, their extended family
networks and their primary relationship with their father , were being severed by
unilateral conduct. It found that the preservation of those connections on an interim
basis, pending a proper investigation, was in the children's best interests. That is a
reasonable conclusion on the material before the Court.
[40] The Applicant's submission that restoration of the status quo ante cannot be
assumed to be in the children's best interests has abstract merit but limited
application on these facts. The status quo ante was not an artificially created or
court-imposed position. It was the children's organic liv ed reality immediately prior
to the Applicant’s unilateral relocation of the children to Cape Town. The Court's
conclusion that this reality should be preserved pending proper adjudication, rather
than permitting the Applicant to entrench a new factual position through unilateral
action, does not constitute an abdication of the best interests enquiry. It reflects a
recognition that, in the absence of a full evidentiary record, the pre-existing position
provides a more reliable interim baseline than one created by unilateral parental
conduct.
[41] I am not satisfied that another court would find a material misdirection in the best
interests analysis. This ground does not establish reasonable prospects of
success.
(c) The Family Advocate process
[42] The Applicant submits that the Court erred in failing to await the outcome of the
Family Advocate's investigation before granting coercive mandatory return relief. It
was common cause that the Family Advocate's office had already been engaged
and that a meeting was scheduled for 14 May 2026. The submission is that the
16
best interests of the children required that the statutory investigative process be
allowed to proceed before coercive relocation relief was imposed.
[43] This submission conflates the role of the Family Advocate with the Court's own
jurisdiction as upper guardian of minor children. The Family Advocate process is a
valuable statutory mechanism that assists the Court with an independent
investigation of children's circumstances. It does not oust or suspend the Court's
upper guardian jurisdiction. This Court is not obliged to await the completion of a
Family Advocate investigation before exercising its jurisdiction to grant interim
relief, particularly where the continued absence of intervention would permit one
party to entrench an advantage obtained by unilateral action. The Respondent
correctly submits that were it otherwise, any party who wished to forestall urgent
child-related relief could do so simply by triggering the Family Advocate process
and then relying on its pendency as a bar to interim intervention.
[44] The Court expressly acknowledged the importance of the Family Advocate's
investigation and did not purport to determine the relocation issue finally. It
confined its order to the interim period pending the Rule 43 adjudication, which will
have the benefit of the Family Advocate's report. That is a proper and
proportionate exercise of the Court's jurisdiction. This ground does not establish
reasonable prospects of success.
(d) Urgency
[45] The Applicant submits that the second urgent application was not genuinely urgent
and that it substantially duplicated the issues raised in the first urgent application
struck from the roll by Mia J. She contends that the Respondent had already
sought return relief in substance before Mia J, and that the second application was
17
an impermissible attempt to obtain, under a different procedural guise, relief that
had been refused or not granted in the first urgent application.
[46] This submission must be considered against the procedural history set out above.
The application before Mia J was the Applicant's application for relocation relief. It
was struck from the urgent roll ; it was not dismissed on the merits, and the relief
was not refused. Whatever the Respondent may have raised in argument or in a
draft order before Mia J, he was the respondent in those proceedings. His return
relief was not the subject of any application that had been placed before that court.
It was never adjudicated, never refused, and never determined. The Respondent's
second urgent application was therefore a fresh application by a different party, for
relief of a different character, in different proceedings.
[47] Furthermore, the factual basis for urgency in the second application was materially
distinct from the position before Mia J. By the time the Respondent launched his
application, the Applicant had taken further active steps to entrench the children's
presence in Cape Town in that she had enrolled them in a Cape Town school.
These were new facts, not merely a continuation of the relocation already known to
Mia J. The risk of entrenchment was increasing with each passing week. The Court
correctly identified these developments as constituting fresh and cogent grounds of
urgency.
[48] A finding on urgency is pre-eminently a discretionary factual assessment. An
appellate court will interfere with such a finding only where there has been a
material misdirection or an error of principle. No such error is demonstrated here.
This ground does not establish reasonable prospects of success.
(e) The scope and proportionality of the order
[49] The Applicant submits that even if some form of relief was warranted, the order as
granted was overbroad and disproportionate. She takes issue with the
18
authorisation of physical collection of the children by the Respondent; the
prohibition on educational enrolment without the Respondent's written consent or a
court order; the compelled re-enrolment in specific Johannesburg schools and
therapeutic programmes; and the comprehensive regulatory framework imposed
on her parental decision-making. She contends that less intrusive alternatives were
available, including expedited Rule 43 case management, structured interim
contact arrangements, accelerated Family Advocate involvement, or limited interim
relief preserving the Respondent's relationship with the children without compelling
physical return, and that the failure to consider them constitutes a material
misdirection.
[50] This is the ground upon which the Applicant makes her most substantive
argument, and it warrants careful treatment. It must be acknowledged that the
order is broader in scope than a conventional Rule 43 order. Its provisions go
beyond the identification of an interim residence arrangement. The physical
collection provision, in particular, is an unusual and intrusive feature, and the
consent requirement for educational enrolment imposes a constraint on the
Applicant's parental decision-making that goes beyond what is ordinarily
encountered in interim relief of this nature.
[51] However, the breadth of the order must be assessed against the specific facts that
gave rise to it. The Court was faced with a party who had unilaterally relocated the
children in the face of pending litigation, enrolled them in a new school, and
declined to return them voluntarily even after the first urgent application was struck
from the roll. The risk was that any order that was less than comprehensive and
enforceable would prove ineffective: the Applicant had already demonstrated a
willingness to take unilateral steps with the children when it suited her, and the
Respondent's application before Mia J had not resulted in any protective order. In
Respondent's application before Mia J had not resulted in any protective order. In
those circumstances, the Court was justified in crafting an order that was
19
sufficiently robust to be effective, and in including implementation provisions that
could be activated in the event of non-compliance.
[52] Moreover, the order is expressed to operate only until the Rule 43 application is
finalised. Its intrusive features are therefore time limited. Any hardship caused by
the educational consent requirement or the movement restrictions will be resolved
when the Rule 43 court makes final provision for the children's care and residence
arrangements. The temporary nature of these constraints is a material
consideration in assessing whether the order was proportionate.
[53] Nonetheless, I record that the Rule 43 court may, in its discretion, wish to review
the appropriateness of specific provisions , particularly the educational consent
requirement, if the Rule 43 application is not brought on for hearing promptly. The
parties would be well advised to ensure that the Rule 43 application is set down
expeditiously so that the current interim regulatory regime does not subsist longer
than is strictly necessary. For present purposes, however, I am not satisfied that
the scope of the order discloses a reasonable prospect that another court would
interfere with it as a whole. This ground does not establish reasonable prospects of
success.
(f) Requirements for interdictory relief
[54] The Applicant submits that the Respondent failed to establish the requirements for
interim interdictory relief as set out in Setlogelo v Setlogelo
10: a clear right (or prima
facie right open to some doubt), injury actually committed or reasonably
apprehended, and the absence of similar protection by any other ordinary remedy.
She submits that the Respondent did not establish a clear legal right to compel the
immediate return of the children, that he did not establish irreparable harm, and
that he had alternative remedies available in the pending Rule 43 proceedings.
10 1914 AD 221
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She further points out that the Respondent had already sought, before Mia J, a
court order in relation to the children, and that that relief was not granted.
[55] On the last point, the Applicant overstates the position. As set out in the
background section above, the Respondent was the respondent in the proceedings
before Mia J. He had no application before that court. He was not the moving party.
Whatever he may have raised in submissions or in a draft order does not constitute
an application that was adjudicated or refused. His return relief was never placed
before any court as the subject of his own application until the second urgent
application. This aspect of the Applicant's submission accordingly rests on a
mischaracterisation of the procedural history and cannot sustain the weight placed
upon it.
[56] On the substantive interdictory requirements, this Court held in the principal
judgment that the Respondent had established the requirements for the relief
granted, with particular regard to the Court's role as upper guardian and the
interests of the children. The Court did not approach this matter as a conventional
interdict application between private litigants. It exercised its jurisdiction as upper
guardian, which is a broader and more flexible jurisdiction that permits intervention
in the best interests of children even where the strict Setlogelo requirements are
not technically satisfied in their conventional form. The Applicant's submission that
the Respondent had alternative remedies in the Rule 43 proceedings fails to
engage adequately with the nature of those alternatives: proceedings that have not
been set down for hearing are not a practical remedy for the prevention of ongoing
entrenchment. This ground does not establish reasonable prospects of success.
THE COSTS ORDER IN THE PRINCIPAL JUDGMENT
[57] The Applicant makes a discrete challenge to the award of costs on the attorney
and client scale in the order of 22 April 2026. She submits that there was no finding
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of dishonesty, contempt, mala fides or vexatious conduct, and that the matter
involved genuinely contested legal issues concerning parental responsibilities,
relocation, and the proper scope of interim relief. She submits that a punitive costs
order was accordingly disproportionate, particularly in litigation involving the
welfare of children, and that another court would interfere with it even if it did not
interfere with the substantive relief.
[58] The Respondent submits that the costs order was within the Court's discretion,
having regard to the Applicant's unilateral conduct, the fait accompli she created,
the failed urgent stay application, and the sustained nature of her litigation strategy.
It is further submitted that the punitive costs order was an appropriate mark of the
Court's disapprobation of the Applicant's conduct in the litigation.
[59] The award of costs is pre-eminently a matter for the discretion of the court making
the order. An appellate court will interfere only where that discretion has been
exercised capriciously, upon a wrong principle, without due regard to all relevant
facts, or in a manner that results in a demonstrable injustice.
[60] A costs order on the attorney and client scale is a punitive order that requires
justification beyond mere failure in the litigation. It is ordinarily reserved for cases
where a party's conduct in the litigation has been dishonest, vexatious, or so
unreasonable as to warrant condemnation. Courts have been cautious about
awarding punitive costs in matrimonial and family law matters involving children,
recognising that such litigation is frequently acrimonious and emotionally charged,
and that the issues are often genuinely contested and legally complex.
[61] In the present matter, the Court made no finding of dishonesty or contempt. The
Applicant's conduct, while properly found to be unilateral, self-serving, and
prejudicial to the judicial process, was not characterised as malicious or fraudulent.
prejudicial to the judicial process, was not characterised as malicious or fraudulent.
The legal questions she raised about sections 30 and 31 of the Children's Act,
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while ultimately not decisive, are not frivolous. However, s he had launched the
Rule 43 proceedings herself, then in defiance of the relief which she herself
sought, unilaterally relocated to Cape Town. When the Respondent demanded that
she return the minor children as she did not have consent of the Court or of the
Respondent, not only did she not return the minor children, but she went further to
try and entrench their position in Cape Town by enrolling them in school. In
argument, counsel for the applicant submitted that they cannot set the Rule 43
down for hearing in the absence of the report from the Office of the Family
Advocate that could take months to be finalised. The Applicant was therefore
aware that there could be a considerable delay before the report was ready. In that
time and bearing in mind the tender ages of the minor children, enrolling them in
school and settling them in Cape Town would weigh heavily in her favour. It is
difficult to see how this could be anything other than a deliberate tactical ploy to
gain the upper hand in the Rule 43 application and sway the decision in her favour.
[62] Having regard to the findings set out above, I am not persuaded that the costs
order on the attorney and client scale was anything other than a proper exercise of
the Court’s discretion. Even if another court could conceivably have taken a
different view on the appropriate scale, that does not establish the reasonable
prospect that it would have done so, which is the standard required by Section
17(1)(a). This ground also does not establish reasonable prospects of success.
COMPELLING REASONS
[63] The Applicant submits in the alternative that, even if reasonable prospects of
success have not been demonstrated, compelling reasons exist for the appeal to
be heard. She identifies the following: the proper interpretation of sections 30 and
31 of the Children's Act in the context of internal relocation; the appealability of
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coercive mandatory return orders in the matrimonial context; the interaction
between urgent proceedings, Rule 43 proceedings, and the Family Advocate
process; and the permissible scope of restorative interim relief involving children.
[64] I accept that the questions identified by the Applicant are not trivial. The
interpretation of sections 30 and 31 of the Children's Act in the relocation context,
and the proper limits of the Court's power to grant coercive restorative relief prior to
the completion of the Family Advocate investigation, are questions of genuine
importance to family law practice. However, the existence of legally interesting
questions does not, without more, constitute a compelling reason to hear an appeal
against an interim order.
[65] The compelling reasons ground must be assessed in its proper context. The order
under challenge is a time-limited interim measure that will be superseded by the
Rule 43 adjudication. The legal questions the Applicant seeks to ventilate on
appeal will arise, in full, in that adjudication. They will be argued on a complete
record, with the benefit of a Family Advocate report, expert evidence, and the full
range of factual material that the urgency of these proceedings precluded. The
Rule 43 court will be far better placed to develop the law in this area than an
appellate court considering a compressed urgent record relating to interim relief.
[66] Granting leave to appeal in these circumstances would not advance the
development of the law in any meaningful way. It would fragment the litigation,
delay the Rule 43 adjudication, and prolong the period during which the children's
circumstances are regulated by an order that all parties acknowledge is insufficient
as a permanent solution. That outcome is inimical to the children's best interests
and contrary to the policy considerations that underpin section 16(3) of the Act.
[67] No compelling reasons exist to grant leave to appeal. This ground also fails.
[67] No compelling reasons exist to grant leave to appeal. This ground also fails.
COSTS OF THE APPLICATION FOR LEAVE TO APPEAL
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[68] The Respondent seeks costs on the attorney and client scale on Scale B in respect
of the leave application, submitting that the application is a continuation of the
Applicant's broader litigation strategy of delay and obstruction.
[69] I do not agree that a punitive costs order is warranted in respect of the leave
application itself. An application for leave to appeal is a recognised and legitimate
procedural step. While this application has failed on all grounds, it cannot be said
to have been so devoid of merit, or so clearly an abuse of process, as to warrant
condemnation through a punitive costs order. The Applicant raised grounds
particularly on the questions of appealability, the interpretation of sections 30 and
31, and the costs order in the principal judgment, that required and received careful
consideration. The costs of one counsel on the ordinary party and party scale is the
appropriate order.
ORDER
[70] In the result, the following order is made:
1. The application for leave to appeal is dismissed.
2. The Applicant is to pay the costs of the application for leave to appeal on
the party and party scale, including the costs of one counsel.
LANGE AJ
Acting Judge of the High Court
Gauteng Division, Johannesburg
Date of hearing: 19 MAY 2026
Date of judgment: 17 JUNE 2026
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Counsel for the Applicant: Adv A R van der Merwe
Counsel for the Respondent: Adv A Saldulker
Instructed by: C Olckers Attorneys Inc