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[2026] ZAMPMBHC 85
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M.V.V v R.V.V (2026-173170) [2026] ZAMPMBHC 85 (30 July 2026)
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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,
MPUMALANGA DIVISION,
MBOMBELA (MAIN SEAT)
In
the application between:
CASE
NUMBER: 2026-173170
(1)
REPORTABLE:
NO
(2)
OF INTEREST TO OTHER JUDGES:
NO
(3)
REVISED
YES/NO
DATE
30 JULY 2026
H.F.
FOURIE
SIGNATURE
M[...]
V[...]
V[...]
APPLICANT
And
R[...]
V[...] V[...]
RESPONDENT
JUDGMENT
FOURIE AJ
INTRODUCTION:
[1]
The Applicant under the auspices of Rule 6(12) of the
Uniform Rules
of Court seeks, on an urgent basis herein, relief in terms of
Section
18(5)
of the
Children's Act, 38 of 2005
, for the removal of a minor
child, 7 years of age, to the Republic of Mozambique for a period of
four days to attend the wedding
celebration of the Applicant with her
husband to be.
[2]
The application is not opposed, as an application of
this sort
normally would be, but the Respondent wishes the Court to impose
certain conditions on the Applicant in respect of the
removal of the
minor child for the period in question.
RELEVANT
BACKGROUND FACTS:
[3]
The Applicant and the Respondent were formerly
married and are
the biological parents of the minor child concerned.
[4]
At the time of the hearing of this matter, there is an
active
Children’s Court matter between the same litigants, seemingly
dealing with many of the issues the court is currently
confronted
with, pending in the Children's Court for Thaba Chweu held at
Mashishing, in which an outcome is still awaited.
For purposes
of the current application, it is not necessary to deal with that
application.
[5]
The Applicant is to be married to her fiancé,
one Mr L[...],
in the Republic of Mozambique on 8 August 2026, for which she
requested the Respondent to consent to the removal
of the child for
the period of 7 August 2026 until 10 August 2026.
[6]
The Respondent has never outright refused his consent
in respect of
the attendance at the wedding outside the country, but the required
documentation in this regard has also not been
signed despite several
requests by the Applicant and her legal representatives.
[7]
The Applicant alleges that the refusal to sign the relevant
documentation is part of a pattern of conduct wherein the Respondent
waits until the very last moment to sign relevant documents
for the
minor child to travel with the Applicant, alternatively waits until
legal action is taken to enable such travel.
[8]
It is noteworthy that the minor child has on the evidence
available,
travelled with the Applicant outside the jurisdiction of the country
at least on three occasions already in 2026.
[9]
Of further importance for the matter is that the minor
child
ordinarily resides with the Applicant and L[...]. The
Respondent opposes the application premised firstly thereon that,
according to the Respondent, the application is not urgent and that
there has been non-compliance with the Practice Directives
of this
Court and thereafter indicating that the Respondent, as stated, does
not oppose the minor attending the wedding in the
Republic of
Mozambique but seeks certain requirements to be embedded into the
order of Court ultimately granted and to be imposed
in the Applicant
for purposes of, as the Respondents states, the protection of the
minor child.
[10]
The concerns raised by the Respondent seemingly relate to incidents
ranging
from September 2023 until the latest travels to Mozambique on
1 July 2026, and concerns allegations of alcohol abuse by the
Applicant
and L[...] whilst in Mozambique and an incident in the June
holidays of 2026 wherein the minor child bumped her head while
travelling
at the back of a vehicle in Mozambique.
[11]
It is noteworthy that the Respondent made no counter application in
the
current application but sought both in their answering papers as
well as in argument for the following conditions to be incorporated
into any Order the Court might make:
[11.1]
The child would not be exposed to any harmful behaviour.
[11.2]
Any vehicle in which the child travels would not be operated
in a
reckless or negligent manner.
[11.3]
Mr L[...] would not injure or harm the child.
[11.4]
The child would not be exposed to any violent or aggressive
outbursts
by L[...].
[11.5]
The child would not be exposed to any verbal or physical
altercations
between the Applicant and L[...].
[11.6]
The child would not be exposed to any person who had consumed
alcohol
in excess or who was intoxicated.
[11.7]
Upon the return from the trip, the child would be evaluated
by Ms
Hatting to investigate the repeated allegations mentioned previously.
[12]
In order for the timeline to reflect correctly, the consent for the
travel
to Mozambique for the purpose of the wedding was sought
mid-June 2026, and the current application was brought 20 July 2026.
[13]
It seems as if several of the issues complained of by the Respondent
are issues currently serving in the Children’s Court. In
so far as it relates to the incident during the recent visit
in
Mozambique, the minor child was examined by a medical doctor on the
insistence of the Respondent on 3 July 2026, after which
the doctor
states in his medical certificate that:
“
On questioning
the child I could not detect any signs of violence or abuse.”
URGENCY:
[14]
During the argument, the Court already pronounced on urgency and
found
the matter to be sufficiently urgent, and what follows is the
reasoning therefor.
[15]
A litigant who approaches Court for leave on an urgent basis must
comply
with
Rule 6(12)(b) of the Uniform Rules of Court.
The Rule reads as follows:
“
In every
affidavit of petition filed in support of any application under
paragraph (a) of this sub rule, the Applicant shall set
forth
explicitly the circumstances which he avers render the matter urgent
and the reason why he claims that he could not be afforded
substantial redress at a hearing in due course.”
[7]
__ The importance hereof is that the procedure as set out in Rule
6(12) is not there for the mere taking.
An Applicant has to set
forth explicitly the circumstances which he avers render the matter
urgent. More importantly, the
Applicant must state the reasons
why it claims that it cannot be afforded substantial redress at a
hearing in due course.
The question of whether a matter is
sufficiently urgent to be enrolled and heard as an urgent application
is underpinned by the
issue of absence of substantial redress in an
application in due course. The Rules allow the Court to come to
the assistance
of a litigant because if the latter were to wait for a
normal course to be laid down by the Rules, it would not obtain
substantial
redress. It is important to note that the Rule
requires the absence of substantial redress. This is not
equivalent
to the irreparable harm that is required before the
granting of an interim relief. It is something less. He
may still
obtain redress in an application in due course, but it may
not be substantial. Whether an Applicant will not be able to
obtain
substantial redress in an application in due course will be
determined by the facts of each case. An Applicant must make
out its case in this regard
[1].
[8].____ There are thus
two requirements that must be set forth in the Founding Affidavit in
order to satisfy the requirements of
the Rule
[2].
Whether an Applicant has succeeded in satisfying the requirements for
urgency must be determined from the contents of the
Founding
Affidavit
[3].
[9]
In
LUNA MEUBELVERVAARDIGERS (PTY) LTD V MAKIN & ANOTHER
1977[4]
Coetzee J held with reference to Rule 6(12)(b) the
following:
“
Mere lip
service to the requirement of Rule 6(12)(b) will not do, and an
Applicant must make out a case in the Founding Affidavit
to justify
the particular extent of the departure from the norm which is
involved in the time and day for which the matter be set
down.”
[16]
The test, insofar as it relates to urgency, remains, at its core,
whether,
if the Court does not deal with the matter at the current
juncture and allows the matter to be heard in the normal course, the
Applicant will be able to obtain substantial redress.
Substantial redress will depend on the facts of each specific matter.
[5]
[17]
The Court takes judicial notice of the fact that should a matter be
enrolled
to be heard on the opposed Motion Court roll as at the date
of this judgment, the date obtained from the Registrar will be
approximately
one year from the date of such enrolment.
[18]
Under the circumstances, if the Applicant was to wait for the matter
to be heard on the normal roll, a period in excess of approximately
eight months after the Applicant’s wedding would have
passed by
the time the application is ultimately heard.
[19]
It cannot seriously be contended by the Respondent that substantial
redress
would be forthcoming if the matter is heard in the normal
cause.
[20]
The only other aspect the Court needed to evaluate was whether the
urgency
in respect of the matter was self-created.
[21]
After setting the wedding date, the Respondent was immediately
approached
for his consent, and the Court cannot find that the
application was not brought within a suitable time after the
Applicant exhausted
all reasonable measures to attempt to resolve the
matter without the need for litigation. The urgency cannot be
said to be
self-created.
[22]
The Respondents contend that there exists non-compliance with the
practice
directives of this Court.
[23]
Practice Directives and the Rules of Court serve as a guiding
principle
to facilitate the finalisation of matters. The Courts
will not be tied down to Practice Directives or Rules where a
deviation
therefrom is justified or required.
[24]
In the current matter, the Respondents complain that the full bundles
in respect of the matter ought to have been filed both by the
Applicant and the Respondent by 12h00 on Thursday preceding the
hearing date. Failing the aforesaid, the matter should be
regarded as non-compliant and should be struck from the roll.
[25]
I do not agree with the Respondent's contentions. The Practice
Directives indicate that a matter ought to be enrolled by 12h00 on a
Thursday preceding the hearing date of a matter on the coming
Tuesday
in this Division. This is not, however, a rule that cannot be
circumvented, and in appropriate circumstances and
upon explanation
by the parties, a deviation in respect hereof can be granted.
[26]
To find that a matter would only be enrolled once all the papers in
respect
of the matter had been filed by a certain date in Urgent
Court proceedings would make no practical sense, as it would open the
door for a Respondent to merely delay the finalisation and filing of
their own answering papers to ensure non-compliance and to
ensure
that a matter would not proceed.
[27]
Insofar as it is necessary, the Court states that the Respondent's
reasoning
is not an acceptable evaluation or interpretation of the
Practice Directives.
[28]
When the matter was brought to Court, ultimately all the issues were
thoroughly canvassed, and full affidavits with supporting documents
were filed by the respective parties. Given further the
very
crisp issues involved in respect of the matter, and the fact that the
application and the relief sought are in essence not
opposed by the
Respondent, the allegations of prejudice as averred by the Respondent
are simply non-existent.
[29]
For all the aforesaid reasons the matter was found to be urgent and
was
dealt with as such.
APPLICABLE
LEGAL PRINCIPLES:
BEST
INTEREST OF THE MINOR CHILD:
[30]
Both the Applicant and the Respondent vehemently contended that the
matter
at hand concerned the best interest of the minor child.
[31]
This Court aligns itself with the Court in
LA v EFV
[6]
where Moshoana J indicated that there is a marked difference between
the best interest of a minor child and the interest of the
parents.
[32]
The Court in the aforesaid matter expressed a strong view that
matters
such as the one at hand do not concern the best interest of a
minor child but rather the exercise of parental responsibilities and
rights. During argument in respect of the matter, this Court
similarly expressed the same view with the respective legal
representatives and indicated, as it hereby does again, that the
current matter, although dealing with the travel arrangements
pertaining to a minor child, does not concern the best interest of a
minor child, but rather the interest of the respective parents.
[33]
In coming to the conclusion the Court ultimately does, the Court
needs
to consider whether such a decision could adversely affect the
rights of the minor child, but the motives in respect of the matter
both by the Applicant and the Respondent are not premised, on the
evidence presented to me, in what would be the best interest
of the
minor child; it is evidently rather a case of the respective parties
trying to enforce their own rights.
[34]
In
LW v DB
,
[7]
the learned Satchwell J
stated the following:
“
The ‘best
interest’ principle is used to provide a framework for
addressing the entire range of major issues affecting
children. The
principle may be invoked in relation to and in the context of the
separation of the child from the family setting,
adoption and
comparable practices, parental responsibility for the upbringing and
development of the child, the child’s involvement
with the
police and the justice system, the provision of housing and social
services, access to schooling and so on.”
[35]
The learned Satchwell J continued and stated the following:
[8]
“
A child’s
best interest is the pre-eminent consideration amongst all other
considerations. However, the Legislature did not
intend the “best
interest” of a child to be the sole or exclusive aspect to be
considered because it did not prescribe
that the child’s “best
interests” are the only factors to be considered or the sole
determinant of the exercise
of the court’s discretion. The
‘best interests’ is the paramount consideration within
the hierarchy or concatenation
of factors but it is not always the
only factor receiving consideration in matters concerning children.”
[36]
This Court further aligns itself with the view in LA v EFV
supra
that applications in terms of Section 18(5) are not designed to be an
application to compel a party to provide consent. Even
though
the Court might not agree with a party's refusal to provide consent,
that is the reason the Court is then approached to
intervene.
[37]
Nothing in the papers indicates that the views of the minor child
were
obtained in respect of the matter at hand. Nothing before this
court indicated that the minor child would not want to attend the
wedding of her mother. It seems as if the minor child will be a
flower girl at the wedding and that she will form part of the core
functionaries at the occasion.
EVALUATION:
[38]
During argument it was canvassed with the Respondent’s legal
representative
that what the Respondent is seeking in the current
application is, in essence, an order against L[...] to protect the
minor child
from potential harmful behaviour at the hands of L[...]
and that such an Order would not be competent under circumstances
where
L[...] has not been joined to the proceedings.
[39]
The principles pertaining to
audi alteram partem
form one of
the cornerstones of the South African Procedural Law.
[40]
If the Respondent intended to seek an Order against L[...] or any of
the attendees of the Applicant’s wedding, then the Respondent
ought to have joined such parties to the current proceedings
and
ought to have sought relief in that respect by way of
counterapplication.
[41]
L[...] was neither joined in the proceedings nor is any relief sought
against him, and as such the requirements the Respondent wishes to
impose on L[...] cannot competently be granted by this Court.
[42]
The Respondents further seek that the Court impose a
proviso
on the Applicant that the Applicant shall ensure that no harm befalls
the minor child during the period in question. The
Court
expressed its concern with this
proviso
with the Respondent in
that the
proviso
was unspecified and extremely wide and would
be open to abuse by the Respondent. The Respondent fails to
indicate what would
ultimately constitute harm to be suffered by the
minor child, and if such a
proviso
is ultimately inserted by
the Court, any single occurrence in the minor child’s life
during the period in question which
is not to the liking of the minor
child could lead to the Applicant being found in contempt of the
Order of Court the Respondent
seeks. The Court is mindful that
there are eventualities of life, and despite the best efforts of any
parent, unforeseen
circumstances might arise.
[43]
The Orders the Respondent seeks to incorporate would be incorporated
if the Court is persuaded to believe that the Applicant as the mother
of the child, should be directed and guided on how to deal
with the
minor child, absent which the Court would believe harm could befall
the minor child, and that as the upper guardian of
the minor child
the Court would need to impose certain conditions and restrictions.
[44]
It is noteworthy and cannot be contested that the minor child
ordinarily
resides with the Applicant and L[...]. Although the
Respondent indicates that the complained of actions generally occur
when
the Applicant and L[...] are on holiday in Mozambique with the
minor child, if the complained of actions were of such a serious
nature, the Court would have expected that the Applicant would have
sought immediate action against the Applicant and L[...] for
the
removal of the minor child from their care.
[45]
The Respondent further does not oppose the minor child attending the
wedding in Mozambique, and evaluating same against the aforesaid
backdrop, the Court finds no reason why certain conditions or
requirements ought to be inserted into the Order of Court as
conditions to the minor child being removed from this jurisdiction.
[46]
If the concerns of the Respondent were of such a serious nature, then
surely the Respondent would have opposed the removal from this
jurisdiction for the period concerned and would not have allowed
the
minor child to travel with the Applicant and L[...] under any
circumstances.
[47]
The court cannot accept that a concerned parent who seriously
believes
his child is being physically harmed by another man and has
been for a period of time, somehow becomes rest assured that his
child
will be kept safe upon the written undertaking, not by that
person but by another person. The court further fails to appreciate
how a written undertaking not to harm a child serves any purpose. If
an individual is of such a deprived state of mind that they
harm
children, a previous written undertaking not to do so by their legal
representatives would not suddenly change their minds
to refrain from
such actions.
[48]
The complained-of incidents are unproven and, at this stage, amount
to
speculation on the part of the Respondent.
[49]
The Court finds difficulty in imposing the requirements the
Respondent
seeks under circumstances where the Respondent has
continuously allowed the removal of the minor child to attend holiday
with the
Applicant and L[...] and allows the minor child to remain
ordinarily resident with the Applicant and L[...], but, when it
pertains
to the attending of the Applicant’s wedding, certain
restrictions ought to be applied.
[50]
It is an unthinkable proposition that the Applicant would wilfully
allow
any sort of harm to befall her minor child.
[51]
Given the concern the Respondent has displayed in respect of the
matter,
the Court is satisfied that, should any harmful action occur,
the Respondent will be well within his rights to immediately approach
this Court to vindicate the rights of the minor child.
[52]
None of the rights of the Respondent or the minor child will in any
way
be foregone if the conditions as sought by the Respondent are not
imposed on the Applicant in the order ultimately made.
[53]
It is evident that the Respondent appreciates the importance of the
Applicant’s
wedding and the fact that the Applicant wants her
minor child to attend this day. The Respondent's requirements
to impose
certain restrictions on the removal of the minor child, and
specifically the manner in which those requirements have been
phrased,
are not justified.
[54]
If the Respondent seriously wished the Court to impose such
sanctions,
the Respondent ought to have joined L[...] in these
proceedings and made an application against L[...] to protect the
interests
of the minor child which the Court could then evaluate.
[55]
The argument could be raised that the Court should take an
over-cautious
approach and insert the required prayers into the Court
Order as prayed for by the Respondent. The difficulty with the
aforesaid
approach would be that such an order would remain open to
possible abuse and would encourage a principle whereby orders are
granted
by the Court at a party's mere say-so under circumstances
where such orders are not justified.
[56]
An order of Court should be granted upon justified facts and
principles.
[57]
In the current matter, it is not justified that the restrictions the
Respondent wishes to impose are incorporated into the order
ultimately made.
COSTS:
[58]
During argument, it was conceded by the respective counsels, given
the
nature of the matter and the existing litigation between the
respective parties, that it would be in the interest of justice for
no cost order to be made. The Court aligns itself with this
view.
CONCLUSION:
[59]
The Respondent indicates that he has never refused consent for the
minor
to attend the wedding of the Applicant in the Republic of
Mozambique. By failing to sign the relevant documentation, the
Respondent’s actions amount to nothing short of a denial of
consent.
[60]
The refusal to sign the required documentation is not justified and
as
such the relief as sought by the Applicant is to be granted.
ORDER:
[61]
For all the reasons as stated before, the following Order is made:
61.1
The forms, service, and time periods provided by
the Uniform
Rules of Court are dispensed with, and this application
is heard as one of urgency in terms of Rule 6(12).
61.2
In respect of
Section 18(5)
of the
Children's Act,
38 of 2005
, the requirement for the Respondent’s consent as
contemplated in
Section 18(3)(c)(iii)
of the said Act is dispensed
with for departure of the minor, Z[...] v[...] V[...], a girl born on
8 October 2018, with Identity
Number: 1[...] (the “minor
child”) from the Republic of South Africa for the period of 7
August 2026 to 10 August 2026.
61.3
The Applicant is authorised to remove the minor child from the
Republic of South Africa for the purpose of travelling with the
Applicant to Villa Mhabanga, Bilen, in the Republic of Mozambique
for
the period of 7 August 2026, and the Applicant is directed to return
the minor child to the Republic of South Africa on or
before 10
August 2026.
61.4
It is directed that this Order, alternatively a certified copy
thereof, shall stand in the place of the Respondent’s parental
consent affidavit for all purposes contemplated in the
Children's
Act, 38 of 2005
, the
Immigration Act, 13 of 2002
and the Regulations
promulgated thereunder and that same may be presented to the
Department of Home Affairs, and Immigrational
Board or Official of
the Republic of South Africa, any official of the Republic of
Mozambique, and any carrier or any other person
enquiring proof of
parental consent for the travel referred to in Order 3 above.
61.5
This Order shall be translated into Portuguese for the purposes
of
same being made available to the relevant officials of the Republic
of Mozambique.
61.6
Each party shall pay their own costs.
H
F FOURIE AJ
ACTING
JUDGE OF HIGH COURT, MBOMBELA
Counsel for the
Plaintiff:
Adv C Barreiro
Instructed by:
Rosa Van Niekerk
Attorneys
Tel:
010 110 9500
Email Address:
[email protected]
Counsel for the
Defendant:
Adv GM Gomes De
Jesus
Instructed by:
Natasha Auret
Attorneys
Tel :
013 243 0284
Email Address
[email protected]
Matter heard on:
28 JULY 2026
Judgement delivered
on:
30 JULY 2026
[1]
Eastrock Trading 7 (Pty) Ltd & Another v Eagle Valley Granite
(Pty) Ltd & Others (11133767) [2011] ZAGPJHC 196 (23 September
2011)
[2]
Salt & Another v Smith
1991 (2) SA 186
(NM) at 197 A
[3]
Il & B Marcow Caterers v Greatermans SA
1981 (4) SA 108
(C)
at 111 A
[4]
Luna Meubelvervaardigers (Pty) Ltd v Makin & Another
1977 (4)
SA 135
(W) at
137 F
[5
]
Swanepoel v Harris and Others
[2025] JOL 73077
(MM)
[6]
LA v EFV (2024-017275) [2024] ZAGPPHC 213 (11
March 2024)
[7]
LW v DB
20 (1) SA 169
(GJ)
[8]
Id at para 61