E.D v H.D (2023/107780) [2024] ZAGPJHC 499 (24 May 2024)

E.D v H.D (2023/107780) [2024] ZAGPJHC 499 (24 May 2024)

The court found that the children had already been relocated to their father's care and enrolled in a new school in Parys pursuant to Meyer AJ's order. To order their immediate return to the applicant's care and previous school, only six days before the hearing of the application for leave to appeal, would result in a second major upheaval within five weeks, causing further disruption, stress, and emotional trauma. The court held that such a move would not be in the children's best interests. The judge further determined that it was not within his powers to stay the implementation of Meyer AJ's order, as this issue was properly to be decided by Meyer AJ during the hearing of the...

Citation
[2024] ZAGPJHC 499
Parties
Applicant: E[...] D[...]; Respondent: H[...] O[...] D[...]
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
24 May 2024
Case Number
2023/107780
Procedural Posture
Urgent Application / Opposed Application for Interim Relief Pending Appeal/review
Outcome
Application dismissed; costs reserved for determination by Meyer AJ in the application for leave to appeal.
Judges
Goodenough
Legal Topics
Interim Custody, Best Interests of Child, Rule 43 Orders, Stay of Execution, Parental Rights and Responsibilities
Family and Children Civil Procedure Interim Custody Best Interests of Child Rule 43 Orders Stay of Execution Parental Rights and Responsibilities

Case Brief

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Parties

E[...] D[...]

Applicant

H[...] O[...] D[...]

Respondent

Procedural Posture

Urgent Application / Opposed Application for Interim Relief Pending Appeal/review

Legal Issues

  1. 1 Whether the order of Bezuidenhout AJ dated 19 January 2023 should remain in force pending appeal or review of Meyer AJ's order dated 9 April 2024.
  2. 2 Whether it is in the best interests of the children to be returned to the applicant's care and previous school pending the outcome of leave to appeal.
  3. 3 Whether the court should intervene in the implementation of Meyer AJ's order prior to the hearing of the application for leave to appeal.

Ratio Decidendi

The court found that the children had already been relocated to their father's care and enrolled in a new school in Parys pursuant to Meyer AJ's order. To order their immediate return to the applicant's care and previous school, only six days before the hearing of the application for leave to appeal, would result in a second major upheaval within five weeks, causing further disruption, stress, and emotional trauma. The court held that such a move would not be in the children's best interests. The judge further determined that it was not within his powers to stay the implementation of Meyer AJ's order, as this issue was properly to be decided by Meyer AJ during the hearing of the...

Court Disposition

Application dismissed; costs reserved for determination by Meyer AJ in the application for leave to appeal.

Orders

  • The application is dismissed.
  • Costs are reserved for determination by the Honourable Acting Judge Meyer in the Application for Leave to Appeal set down for hearing on 28 May 2024.