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South Africa Judgment

South Gauteng High Court, Johannesburg

J.S v Z.M (2024/090962) [2024] ZAGPJHC 859 (29 August 2024)

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Source document

01

Holding and result

The court found that at the time the application was instituted, both the respondent and the minor child had already relocated to KwaZulu Natal and were no longer ordinarily resident within the jurisdiction of the South Gauteng High Court. Jurisdiction is determined by residence at the time of institution of proceedings, not by domicile or previous residence. The applicant was notified of the respondent’s relocation prior to proceeding but chose to continue regardless. The court held that it lacked jurisdiction to hear the matter and struck the application from the roll. The cost order reflects the applicant’s decision to proceed after being informed of the jurisdictional issue.

Court disposition

Application struck from the roll for lack of jurisdiction. Costs apportioned as specified.

Orders

  • The matter is struck from the roll for lack of jurisdiction.
  • The parties are to pay their own costs up to the serving of the urgent application.
  • The applicant is to pay the costs of the respondent after the serving of the urgent application.

02

Material facts

Parties

J[...] S[...]

Applicant Counsel: G Olwagen-Meyer

Z[...] M[...]

Respondent Counsel: XT van Niekerk

03

Procedural history

  1. Posture

    Urgent Application / Struck Off Roll for Lack of Jurisdiction

04

Questions and positions

Legal issues

Party arguments

Applicant
The applicant sought the appointment of an expert to evaluate the parties and provide recommendations regarding parental alienation and care and contact with the minor child. At the time of instituting proceedings, the applicant believed the respondent was only temporarily in KwaZulu Natal and still ordinarily resident within the court's jurisdiction.
Respondent
The respondent argued that both she and the minor child had permanently relocated to KwaZulu Natal prior to the institution of proceedings. She relied on section 21(1) of the Superior Courts Act and section 29 of the Children’s Act, contending that the High Court only has jurisdiction where the parties and the child are ordinarily resident. The respondent’s attorneys notified the applicant of the relocation and questioned whether the applicant wished to proceed, given the lack of jurisdiction.

05

Court’s reasoning

  1. 01

    Section 21(1) of the Superior Courts Act 10 of 2013

    Jurisdiction of the High Court is determined by the ordinary residence of the parties at the time proceedings are instituted, not by domicile.

  2. 02

    Section 29(1) of the Children’s Act 38 of 2005

    The High Court with jurisdiction over matters concerning a child is that in which the child is ordinarily resident.

  3. 03

    Mayne v Main 2001 (2) SA 1239 (SCA) paras 3–6

    Jurisdiction is determined at the time proceedings are instituted; if the parties have relocated, the court loses jurisdiction.

  4. 04

    Taitz, J (1985) The Inherent Jurisdiction of the Supreme Court, 1

    The court has inherent jurisdiction to ensure due process and a fair trial, but such discretion is exercised only where just and equitable.

06

Ratio, limits and disposition

Ratio decidendi

The court found that at the time the application was instituted, both the respondent and the minor child had already relocated to KwaZulu Natal and were no longer ordinarily resident within the jurisdiction of the South Gauteng High Court. Jurisdiction is determined by residence at the time of institution of proceedings, not by domicile or previous residence. The applicant was notified of the respondent’s relocation prior to proceeding but chose to continue regardless. The court held that it lacked jurisdiction to hear the matter and struck the application from the roll. The cost order reflects the applicant’s decision to proceed after being informed of the jurisdictional issue.

Obiter and limits

  • The court noted that its inherent jurisdiction may be invoked to ensure due process or a fair trial, but this was not a case warranting such intervention.
  • The applicant’s mistaken belief regarding the respondent’s residence was not sufficient to confer jurisdiction on the court.

Court disposition

Application struck from the roll for lack of jurisdiction. Costs apportioned as specified.

  • The matter is struck from the roll for lack of jurisdiction.
  • The parties are to pay their own costs up to the serving of the urgent application.
  • The applicant is to pay the costs of the respondent after the serving of the urgent application.

Source and reliance status

South Gauteng High Court, Johannesburg

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Judgment text

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Source document

South Gauteng High Court, Johannesburg

Judgment

[2024] ZAGPJHC 859

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

THE

HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, JOHANNESBURG

Case 2024/090962

1. REPORTABLE: Yes☐/ No ☐

2. OF INTEREST TO OTHER JUDGES: Yes☐ / No ☐

3. REVISED: Yes ☐ / No ☐

29 August 2024

In the matter between:

J[…] S[…] (ID Nr 9[…]) First Applicant and Z[…] M[…] (ID Nr 9[…]) First Respondent

Coram: Du Plessis AJ

This judgment has been delivered by uploading it to the CaseLines digital data base of the Gauteng Division of the High Court of South Africa, Johannesburg, and by email to the attorneys of record of the parties. The deemed date and time of the delivery is 10H00 on 29 August 2024.

Heard on: 27 August 2024

Decided on: 29 August 2024

ORDER

The following order is made:

1. The matter is struck from the roll for lack of jurisdiction.

2. The parties are to pay their own costs up to the serving of the urgent application.

3. The applicant is to pay the costs of the respondent after the serving of the urgent application.

JUDGMENT

DU PLESSIS AJ

Introduction

[1] This urgent application relates to a minor child born from a relationship between the parties. At the time of hearing the matter,

the child just turned one.

[2] The application was launched as an application to appoint an expert to evaluate the parties and to investigate and provide a report and recommendations in the best interest of the minor child regarding parental alienation and care and contact between the applicant and the minor child.

[3] The respondent raised the issue of jurisdiction, which needs to be addressed first. She terminated her employment in Randburg in

June 2024, after which she moved back to her parents in Rustenburg. They all permanently relocated to KwaZulu Natal on 12 August 2024. The application was issued on 19 August 2024. The respondent’s attorneys informed the applicant’s attorneys of this fact as soon as the application was served. The applicant, nevertheless, decided to continue with the application.

[4] Respondent relies only on s 21(1) of the Superior Courts Act,[1] and s 29 of the Children’s Act[2] with regards to jurisdiction. The requirement for jurisdiction in terms of the Superior Courts Act is that all persons must reside or be in the area of jurisdiction. It does not refer to domicile, but rather where one sleeps after a day’s work.[3] Similarly, s 29(1) of the Children’s Act requires that the High Court where the child concerned “is ordinarily resident”

is the court with jurisdiction.

[5] The respondent’s answering affidavit shows that she has moved to KwaZulu Natal to live with her parents. The child is thus no longer a resident of the North West Province (Rustenburg) or the Gauteng Province (Johannesburg). Since jurisdiction is determined by the time the proceedings are instituted, and because the respondent had already been residing in KwaZulu Natal for a week when the proceedings were instituted, this court no longer has jurisdiction to hear the matter. The matter must thus be struck from the roll for lack of jurisdiction.

[6] I am aware that the court has inherent jurisdiction[4] that it can draw on if it is just and equitable to do so, also to ensure the observance of due process of law, or to secure a fair

trial between the parties. However, this is not such a case.

[7] Up to the moment when the urgent application was served to the respondent, the applicant was still under the impression that the

respondent went on holiday to KwaZulu Natal, as this was communicated to his mother. When he instituted the proceedings, he was thus under the impression that she still resides in the court's jurisdiction, although that impression was erroneous. However, the respondent’s attorneys informed him that this was no longer the case when they received the application, and they expressly asked if the applicant wished to proceed knowing this. The applicant proceeded. This will have an implication on the cost order that I make.

Order

[28] The following order is made:

WJ du Plessis

Acting Judge of the High Court

For the Applicants:

G Olwagen-Meyer instructed by Cumming Attorneys

For the Respondents:

XT van Niekerk instructed by Martin Vermaak Attorneys

[1] 10 of 2013.

[2] 38 of 2005.

[3] Mayne v Main 2001 (2) SA 1239 SCA paras 3 – 6.

[4] Taitz, J (1985) The Inherent Jurisdiction of the Supreme Court, 1.

Source wording is retained. Consult the source document for its original formatting and pagination.

Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

Mayne v Main 2001 (2) SA 1239 (SCA)

Case cited

Superior Courts Act 10 of 2013

Legislation

Legislation referenced in the available case record.

Children’s Act 38 of 2005

Legislation

Legislation referenced in the available case record.

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