B v B (2007/5408) [2007] ZAGPHC 306; 2008 (4) SA 535 (W) (18 December 2007)

B v B (2007/5408) [2007] ZAGPHC 306; 2008 (4) SA 535 (W) (18 December 2007)

The High Court has inherent jurisdiction as upper guardian of minor children and is empowered to adjudicate matters concerning their best interests, including setting aside interim protection orders issued by the Magistrate's Court under the Domestic Violence Act. The evidence, including psychological and Family Advocate reports, established that the applicant posed no danger to herself or the children and that the respondent's allegations were unfounded. The respondent's conduct in denying access and removing the children was contrary to previous court orders and not in the children's best interests. The best interests of the minor children require their custody to be awarded to the...

Citation
[2007] ZAGPHC 306
Parties
Applicant: B, C S; Respondent: B, C
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
18 December 2007
Case Number
2007/5408
Procedural Posture
Urgent Application / Interim Relief Application Under Rule 43 Pending Divorce Action
Outcome
Application granted. Interim custody of the minor children awarded to the applicant pending divorce action. Interim protection orders against the applicant set aside. Respondent granted reasonable access. Costs awarded to applicant on party and party scale.
Judges
D S S Moshidi
Legal Topics
Interim Custody, Domestic Violence Act, Best Interests of Child, Rule 43 Application, Parental Responsibilities, Protection Order Variation
Family and Children Civil Procedure Interim Custody Domestic Violence Act Best Interests of Child Rule 43 Application Parental Responsibilities Protection Order Variation

Case Brief

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Parties

B, C S

Applicant

B, C

Respondent

Procedural Posture

Urgent Application / Interim Relief Application Under Rule 43 Pending Divorce Action

Legal Issues

  1. 1 Whether the High Court has jurisdiction to set aside interim protection orders issued by the Magistrate's Court under the Domestic Violence Act while proceedings are pending in the lower court.
  2. 2 Whether the applicant is entitled to interim custody of the minor children pending the divorce action.
  3. 3 What is in the best interests of the minor children regarding custody and access.

Ratio Decidendi

The High Court has inherent jurisdiction as upper guardian of minor children and is empowered to adjudicate matters concerning their best interests, including setting aside interim protection orders issued by the Magistrate's Court under the Domestic Violence Act. The evidence, including psychological and Family Advocate reports, established that the applicant posed no danger to herself or the children and that the respondent's allegations were unfounded. The respondent's conduct in denying access and removing the children was contrary to previous court orders and not in the children's best interests. The best interests of the minor children require their custody to be awarded to the...

Court Disposition

Application granted. Interim custody of the minor children awarded to the applicant pending divorce action. Interim protection orders against the applicant set aside. Respondent granted reasonable access. Costs awarded to applicant on party and party scale.

Orders

  • Interim custody of the minor children is awarded to the applicant pending finalisation of the divorce action.
  • The interim protection orders issued against the applicant under Case No. 263/2007 on 21 February 2007 and Case No. 1166/2007 on 30 October 2007 are set aside.