M.U v W.H (2022/026981) [2023] ZAGPJHC 79 (6 February 2023)

M.U v W.H (2022/026981) [2023] ZAGPJHC 79 (6 February 2023)

The court found that the respondent's grounds for leave to appeal were without merit. The Deputy Judge President's directive did not bar the applicant's urgent application, as it was intended to preserve the status quo and not to prevent the applicant from seeking relief against the respondent's unilateral conduct. The agreement for the return of the children was entered into freely and voluntarily, and the respondent's claim of duress was inconsistent with his own admissions. The affidavits alleging abuse were inadmissible as they were produced after judgment and not previously raised, denying the applicant an opportunity to respond. The refusal to admit the putative amicus curiae was...

Citation
[2023] ZAGPJHC 79
Parties
Applicant: MU; Respondent: WH
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
6 February 2023
Case Number
2022/026981
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Urgent Order for Return of Children
Outcome
Leave to appeal refused; second application for leave to appeal struck from the roll with costs.
Judges
S D J Wilson
Legal Topics
Urgent Child Return, Leave to Appeal, Interim Custody Arrangement, Amicus Curiae, Enforcement of Court Order
Family and Children Civil Procedure Urgent Child Return Leave to Appeal Interim Custody Arrangement Amicus Curiae Enforcement of Court Order

Case Brief

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Parties

MU

Applicant

WH

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Following Urgent Order for Return of Children

Legal Issues

  1. 1 Whether the applicant's urgent application for return of children was barred by the Deputy Judge President's directive.
  2. 2 Whether the agreement for return of children was entered into under duress.
  3. 3 Whether exclusion of late affidavits alleging abuse was proper.

Ratio Decidendi

The court found that the respondent's grounds for leave to appeal were without merit. The Deputy Judge President's directive did not bar the applicant's urgent application, as it was intended to preserve the status quo and not to prevent the applicant from seeking relief against the respondent's unilateral conduct. The agreement for the return of the children was entered into freely and voluntarily, and the respondent's claim of duress was inconsistent with his own admissions. The affidavits alleging abuse were inadmissible as they were produced after judgment and not previously raised, denying the applicant an opportunity to respond. The refusal to admit the putative amicus curiae was...

Court Disposition

Leave to appeal refused; second application for leave to appeal struck from the roll with costs.

Orders

  • The application for leave to appeal is dismissed.
  • The South African Police Services are directed to execute the order of 11 January 2023 for the return of the children to the applicant.