C (22143/2018), R v [2022] ZAGPJHC 624 (28 August 2022)

C (22143/2018), R v [2022] ZAGPJHC 624 (28 August 2022)

The court held that the Rule 43(6) order granted by Nyathi AJ is interlocutory and not final in effect, and therefore not suspended by the pending appeal on the lis pendens point. Section 16(3) of the Superior Courts Act prohibits appeals against Rule 43 orders, and section 18(2) provides that interlocutory orders...

Source-derived case information.

Citation
[2022] ZAGPJHC 624
Parties
Applicant: R [....] 1, R [....] 2, R [....] 3; Respondent: C [....] : A [....]
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
28 August 2022
Case Number
22143/2018
Procedural Posture
Urgent Application / Opposed Motion for Declaratory Relief and Ancillary Orders Following Rule 43(6) Order in Divorce Proceedings
Outcome
Application granted in part. Declarator issued that the Rule 43(6) order is not suspended pending appeal. Costs awarded to applicant on attorney and client scale. Passport surrender refused.
Judges
Van Aswegen
Legal Topics
Rule 43 Orders, Interim Contact Rights, Lis Pendens, Best Interests of Child, Passport Surrender, Contempt of Court
Family and Children Civil Procedure Rule 43 Orders Interim Contact Rights Lis Pendens Best Interests of Child Passport Surrender Contempt of Court

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Summary, issues, holding and outcome

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Parties

R [....] 1, R [....] 2, R [....] 3

Applicant

C [....] : A [....]

Respondent

Procedural Posture

Urgent Application / Opposed Motion for Declaratory Relief and Ancillary Orders Following Rule 43(6) Order in Divorce Proceedings

Legal Issues

  1. 1 Whether the Rule 43(6) order regulating parental contact is suspended pending an appeal on a point in limine (lis pendens).
  2. 2 Whether the respondent is in contempt of the Rule 43(6) order for non-compliance.
  3. 3 Whether the children's passports should be surrendered for safekeeping pending the divorce proceedings.

Ratio Decidendi

The court held that the Rule 43(6) order granted by Nyathi AJ is interlocutory and not final in effect, and therefore not suspended by the pending appeal on the lis pendens point. Section 16(3) of the Superior Courts Act prohibits appeals against Rule 43 orders, and section 18(2) provides that interlocutory orders remain operative unless the court orders otherwise under exceptional circumstances. The respondent's appeal relates only to the dismissal of the lis pendens point and not to the merits of the Rule 43(6) order. The court found that the respondent's actions in delaying implementation of the order were contrary to the best interests of the minor children, whose rights to contact...

Court Disposition

Application granted in part. Declarator issued that the Rule 43(6) order is not suspended pending appeal. Costs awarded to applicant on attorney and client scale. Passport surrender refused.

Orders

  • Prayers 2, 3 and 5 of the Notice of Motion dated 18 February 2022 are postponed sine die.
  • It is declared that the Rule 43(6) order of Nyathi AJ is not suspended and that the applicant and respondent must forthwith comply with the said order and its implementation in the best interests of the minor children.