Johnson and Another v Degenaar and Another (39906/2017) [2017] ZAECGHC 103 (13 September 2017)
- Citation
- [2017] ZAECGHC 103
- Status
- Order
- Jurisdiction
- South Africa
- Court
- Eastern Cape High Court, Grahamstown
- Panel
- N G Beshe, J M Roberson
- Case number
- 39906/2017
More details
- Court
- Eastern Cape High Court, Grahamstown
- Panel
- N G Beshe, J M Roberson
- Case number
- 39906/2017
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that the applicants had made out a case for urgent interim relief. The decisions of the Children’s Court dated 4 September 2017 were suspended pending the finalization of the review application, as the applicants demonstrated that the setting aside of the parental plan and the dismissal of the application for primary care could have prejudicial effects on the minor child. The court emphasized the paramountcy of the child’s best interests and held that the status quo should be restored until the review is determined. The applicants’ non-compliance with the Rules of Court was condoned due to the urgency and the potential harm to the child if relief was delayed. The first respondent was ordered to return the minor child to the second applicant within 48 hours, and the applicants were directed to institute review proceedings within ten days, failing which the interim relief would lapse.
Court disposition
Interim relief granted; decisions of the Children’s Court suspended pending review; minor child to be returned to second applicant; applicants to institute review within ten days.
Orders
- The applicants’ non-compliance with the Rules of Court is condoned.
- The decisions of the second respondent dated 4 September 2017 are suspended pending review.
- The first respondent is directed to return Phoenix Gabriel Meiring to the second applicant within 48 hours of this order, pending review.
- The applicants must institute review proceedings within ten days, failing which the interim relief lapses.
- No order as to costs.
02
Material facts
Parties
John-Barry Johnson
Applicant Counsel: Adv I J Smuts SCIsabelle Meiring
Applicant Counsel: Adv I J Smuts SCChanel Louise Degenaar
Respondent Counsel: Adv S Sephton with Adv M FinnThe Learned Magistrate Nomine Officio in the Children’s Court for the District of Albany
Respondent03
Procedural history
Posture
Urgent Application / Interim Order Pending Review
04
Questions and positions
Legal issues
- 01
Whether the applicants are entitled to interim relief suspending the decisions of the Children’s Court pending review.
- 02
Whether the first respondent must return the minor child to the second applicant pending review.
- 03
Whether non-compliance with the Rules of Court should be condoned in urgent circumstances.
Party arguments
- Applicant
- The applicants argued that the decisions of the Children’s Court on 4 September 2017 were prejudicial and should be suspended pending a review. They contended that the parental plan was set aside without proper consideration and that the first applicant’s application to be appointed as primary carer was dismissed unfairly. They sought urgent interim relief to restore the status quo and requested condonation for non-compliance with procedural rules due to the urgency of the matter.
- Respondent
- The first respondent opposed the interim relief, arguing that the Children’s Court’s decisions were valid and should remain in force. She contended that the applicants had not demonstrated sufficient grounds for urgent intervention and that the return of the minor child would not be in his best interests. The second respondent abided by the court’s decision.
05
Court’s reasoning
Legal principles
- 01
Children’s Act 38 of 2005
Interim relief may be granted to preserve the status quo pending the outcome of review proceedings, especially where the best interests of a minor child are at stake.
- 02
Uniform Rules of Court, Rule 6(12)
Non-compliance with procedural rules may be condoned in urgent applications where strict adherence would defeat the ends of justice.
- 03
Section 28(2) of the Constitution of the Republic of South Africa, 1996
The best interests of the child are paramount in all matters concerning children.
06
Ratio, limits and disposition
Ratio decidendi
The court found that the applicants had made out a case for urgent interim relief. The decisions of the Children’s Court dated 4 September 2017 were suspended pending the finalization of the review application, as the applicants demonstrated that the setting aside of the parental plan and the dismissal of the application for primary care could have prejudicial effects on the minor child. The court emphasized the paramountcy of the child’s best interests and held that the status quo should be restored until the review is determined. The applicants’ non-compliance with the Rules of Court was condoned due to the urgency and the potential harm to the child if relief was delayed. The first respondent was ordered to return the minor child to the second applicant within 48 hours, and the applicants were directed to institute review proceedings within ten days, failing which the interim relief would lapse.
Obiter and limits
- The court noted that reasons for the order would follow in a separate judgment.
- No order as to costs was made, considering the nature of the dispute and the interests of the minor child.
Court disposition
Interim relief granted; decisions of the Children’s Court suspended pending review; minor child to be returned to second applicant; applicants to institute review within ten days.
- The applicants’ non-compliance with the Rules of Court is condoned.
- The decisions of the second respondent dated 4 September 2017 are suspended pending review.
- The first respondent is directed to return Phoenix Gabriel Meiring to the second applicant within 48 hours of this order, pending review.
- The applicants must institute review proceedings within ten days, failing which the interim relief lapses.
- No order as to costs.
Source and reliance status
Eastern Cape High Court, Grahamstown
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
Eastern Cape High Court, Grahamstown
Order
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION, GRAHAMSTOWN
CASE NO: 39906/2017
Date Heard: 12/09/2017
Date delivered 13/09/2017
In the matter between
JOHN-BARRY
JOHNSON
1ST
APPLICANT
ISABELLE
MEIRING
2ND
APPLICANT
and
CHANEL
LOUISE
DEGENAAR
1ST
RESPONDENT
THE
LEARNED MAGISTRATE NOMINE
OFFICIO IN THE CHILDREN’S COURT FOR
THE
DISTRICT OF ALBANY IN CASE
NUMBER 14/1/4 – 66/2017
2ND RESPONDENT
ORDER
BESHE J:-
The following order will issue:
1. The applicants’ non-compliance with the Rules of Court relating to service, time periods and forms is condoned.
2. The decisions of the second respondent of the 4th of September 2017 to;
2.1 set aside the parental plan signed by the applicants on the 30th and 31st August 2017;
2.2 not uphold the first applicant’s application to be appointed primary carer of Phoenix Gabriel Meiring in terms of the parental plan;
2.3 to dismiss the first applicant’s application that Phoenix Gabriel Meiring be returned to the second applicant within 48 hours of the granting of an order, alternatively, for a period deemed meet by the Children’s Court; and
2.4 to extend the order granted by agreement on the 21st of July 2017,
are hereby suspended pending the finalization of the applicants’ review of the decisions of the second respondent dated 4th of September 2017;
3. The first respondent is directed to return Phoenix Gabriel Meiring to the second applicant within 48 hours of the granting of this order, pending the finalization of the applicants’ review application against the second respondent’s decisions of the 4th of September 2017;
4. The applicants are directed to institute the aforesaid review proceedings against the decisions of the second respondent of 4th September 2017 within ten (10) days of the date of this order, or such longer period as may be agreed between the parties, failing
which the interdict and prayers (2) and (3) above shall finally lapse;
5. There is no order as to costs.
6. Reasons for this order are to follow.
__
N
G BESHE
JUDGE
OF THE HIGH COURT
ROBERSON J:-
I agree
______
J
M ROBERSON
Appearances:
For the Applicants: Adv I J Smuts SC, instructed by Wheeldon, Rushmere & Cole Incorporated, Grahamstown
For the Minor Child: Ms J Hillier Grahamstown Justice Centre
For the 1st Respondent: Adv S Sephton with Adv M Finn Legal Resources Centre, Grahamstown
Case-aware research
Ask AI about this case
The judgment and available research above are public. New questions open in a separate private conversation grounded in this case.