J.L.M v K.W.K.M (2023-002520) [2023] ZAGPPHC 41 (29 January 2023)

J.L.M v K.W.K.M (2023-002520) [2023] ZAGPPHC 41 (29 January 2023)

The court found that the order granted by Nyathi J on 27 January 2023 is an interim order under Rule 43 and falls squarely within the ambit of section 16(3) of the Superior Courts Act, which prohibits appeals from such orders. The respondent's application for leave to appeal does not suspend the operation and execution of the order. The respondent's refusal to return the children, while based on a mistaken belief regarding appealability, did not amount to wilful contempt as there was reasonable doubt regarding mala fides. The counter-application was dismissed as the respondent failed to establish a basis for altering the interim residence arrangements. Costs were awarded against the...

Citation
[2023] ZAGPPHC 41
Parties
Applicant: J.L.M; Respondent: K.W.K.M
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
29 January 2023
Case Number
2023-002520
Procedural Posture
Urgent Application / Application for Declaratory and Enforcement Orders Following Urgent Rule 43 Proceedings
Outcome
Application granted in part; declaratory and enforcement orders issued; contempt application and counter-application dismissed; costs awarded against respondent.
Judges
E van der Schyff
Legal Topics
Rule 43 Interim Relief, Child Custody, Appealability of Interim Orders, Contempt of Court, Costs Orders
Family and Children Civil Procedure Rule 43 Interim Relief Child Custody Appealability of Interim Orders Contempt of Court Costs Orders

Case Brief

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Parties

J.L.M

Applicant

K.W.K.M

Respondent

Procedural Posture

Urgent Application / Application for Declaratory and Enforcement Orders Following Urgent Rule 43 Proceedings

Legal Issues

  1. 1 Whether the order granted by Nyathi J on 27 January 2023 is appealable under section 16(3) of the Superior Courts Act.
  2. 2 Whether the respondent's application for leave to appeal suspends the operation and execution of the interim order.
  3. 3 Whether the respondent's refusal to return the minor children constitutes contempt of court.

Ratio Decidendi

The court found that the order granted by Nyathi J on 27 January 2023 is an interim order under Rule 43 and falls squarely within the ambit of section 16(3) of the Superior Courts Act, which prohibits appeals from such orders. The respondent's application for leave to appeal does not suspend the operation and execution of the order. The respondent's refusal to return the children, while based on a mistaken belief regarding appealability, did not amount to wilful contempt as there was reasonable doubt regarding mala fides. The counter-application was dismissed as the respondent failed to establish a basis for altering the interim residence arrangements. Costs were awarded against the...

Court Disposition

Application granted in part; declaratory and enforcement orders issued; contempt application and counter-application dismissed; costs awarded against respondent.

Orders

  • The applicant's non-compliance with the Uniform Rules of Court is condoned; the application is heard as urgent.
  • It is declared that no appeal lies from the judgment and order handed down by Nyathi J on 27 January 2023.