ZO v JO (2022/14941) [2022] ZAGPJHC 511 (15 June 2022)

ZO v JO (2022/14941) [2022] ZAGPJHC 511 (15 June 2022)

The court found that the order of 10 May 2022 authorizing the respondent to relocate with the minor children to the Western Cape was final in nature, as it disposed of the crucial issue of the children's residence and did not provide a mechanism for reconsideration absent fresh proceedings. Accordingly, the filing of an application for leave to appeal automatically suspended the operation and execution of the relocation order. The respondent failed to bring an application under section 18(3) to implement the order pending appeal, and even if such an application had been made, the court was not satisfied that exceptional circumstances existed or that the applicant would not suffer...

Citation
[2022] ZAGPJHC 511
Parties
Applicant: Z [....] I [....] O [....]; Respondent: J [....] S [....] O [....]
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
15 June 2022
Case Number
2022/14941
Procedural Posture
Urgent Application / Application for Declaratory Relief and Mandatory Interdict
Outcome
Declaratory relief granted; respondent ordered to return minor children to Gauteng; costs awarded against respondent.
Judges
JJC Swanepoel
Legal Topics
Child Relocation, Best Interests of Child, Automatic Suspension of Order, Rule 43 Proceedings, Section 18 Suspension, Parental Contact
Family and Children Civil Procedure Child Relocation Best Interests of Child Automatic Suspension of Order Rule 43 Proceedings Section 18 Suspension Parental Contact

Case Brief

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Parties

Z [....] I [....] O [....]

Applicant

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

Respondent

Procedural Posture

Urgent Application / Application for Declaratory Relief and Mandatory Interdict

Legal Issues

  1. 1 Whether the order of 10 May 2022 permitting relocation of minor children is automatically suspended pending an application for leave to appeal.
  2. 2 Whether the respondent must return the minor children to Gauteng pending the appeal process.
  3. 3 Whether the respondent or applicant would suffer irreparable harm if the relocation order is suspended or implemented.

Ratio Decidendi

The court found that the order of 10 May 2022 authorizing the respondent to relocate with the minor children to the Western Cape was final in nature, as it disposed of the crucial issue of the children's residence and did not provide a mechanism for reconsideration absent fresh proceedings. Accordingly, the filing of an application for leave to appeal automatically suspended the operation and execution of the relocation order. The respondent failed to bring an application under section 18(3) to implement the order pending appeal, and even if such an application had been made, the court was not satisfied that exceptional circumstances existed or that the applicant would not suffer...

Court Disposition

Declaratory relief granted; respondent ordered to return minor children to Gauteng; costs awarded against respondent.

Orders

  • It is declared that the operation and execution of paragraphs 2 and 6 of the order under case number 2022/14941 is automatically suspended pending the applicant’s application for leave to appeal to the Supreme Court of Appeal, and if leave to appeal is granted, pending the outcome of the appeal.
  • Respondent is ordered to return the minor children to Gauteng.