Factual Matrix: Relocation Assessment and Parental Cooperation in Cross-Border Child Relocation
The factual foundation of this Western Cape High Court decision reveals the complex procedural and substantive challenges inherent in international child relocation disputes where parental cooperation is contested. The applicant mother sought judicial intervention to compel the respondent father’s participation in a relocation assessment conducted by Dr Basil Carnie, her appointed expert, to evaluate whether her intended permanent relocation to the United States would serve their minor child’s best interests.
The dispute arose against the backdrop of existing Children’s Court proceedings concerning contact arrangements between the respondent and the child. The mother’s urgency stemmed from the respondent’s refusal to cooperate with the proposed expert assessment, which she argued was essential for preparing a comprehensive relocation application addressing all factors contemplated in section 7 of the Children’s Act 38 of 2005.
The court’s intervention became necessary when correspondence between the parties regarding the assessment parameters failed to secure voluntary cooperation. The applicant demonstrated that a social worker and therapist had already been appointed to prepare the child for the intended relocation, but no formal expert assessment addressing the relocation’s merits had been conducted.
Sarkas AJ granted relief requiring the respondent to cooperate in relocation assessments undertaken by Dr Carnie on reasonable notice of seven days. Critically, the order contained a conditional element whereby the cooperation obligation would fall away if the applicant failed to institute her relocation application within thirty days of the court order.
The respondent’s resistance to the assessment process formed part of broader preliminary objections including urgency challenges, lis alibi pendens arguments based on concurrent Children’s Court proceedings, and non-joinder contentions regarding Dr Carnie’s absence as a party to the proceedings. These factual complexities created the procedural matrix requiring judicial determination of competing jurisdictional and substantive claims in child relocation matters involving cross-border movements and expert assessments.
The Stringent Test for Leave to Appeal: Reasonable Prospects of Success under Section 17 of the Superior Courts Act
Leave to appeal applications in South African superior courts are governed by a deliberately restrictive statutory framework designed to prevent meritless appeals from clogging the appellate system. Section 17(1) of the Superior Courts Act 10 of 2013 establishes the foundational criteria requiring either reasonable prospects of success or compelling reasons justifying appellate consideration.
The Supreme Court of Appeal’s authoritative guidance in MEC for Health, Eastern Cape v Mkhitha 2016 JDR 2214 (SCA) emphasises that leave to appeal must not be granted unless there truly exists a reasonable prospect of success. The appellate court stressed that applicants must convince the court on proper grounds that a realistic chance of success exists, rejecting mere possibilities of success, arguable cases, or matters that are simply not hopeless as insufficient grounds for granting leave.
This stringent threshold requires a sound, rational basis for concluding that reasonable prospects of success exist on appeal. The Mkhitha decision reflects judicial policy prioritising finality in litigation while ensuring appellate resources address only meritorious challenges to lower court decisions.
The test’s rigorous application was further refined in Four Wheel Drive Accessory Distributors CC v Rattan NO 2019 (3) SA 451 (SCA), which reinforced the requirement for proper grounds demonstrating realistic chances of appellate success. Where prospects of success cannot be established, courts must still enquire whether compelling reasons warrant entertaining the appeal, though Caratco (Pty) Ltd v Independent Advisory (Pty) Ltd 2020 (5) SA 35 (SCA) confirmed that the merits remain vitally important and often decisive even when compelling reasons are advanced.
Sarkas AJ’s analysis demonstrates judicial adherence to this restrictive approach, systematically examining each ground of appeal against the established threshold requirements. The judgment illustrates how appellate prospects must be assessed through objective legal analysis rather than subjective hope for different outcomes, ensuring that only genuinely meritorious appeals receive judicial consideration at higher court levels.
Jurisdictional Demarcation: High Court’s Exclusive Jurisdiction over Child Relocation versus Children’s Court Powers
South African family law operates within a carefully structured jurisdictional framework that delineates the respective competencies of different courts in child-related matters. The respondent’s lis alibi pendens argument failed fundamentally because it misunderstood this statutory division of judicial authority between High Courts and Children’s Courts.
Section 45(3)(d) of the Children’s Act 38 of 2005 unambiguously grants High Courts and Divorce Courts exclusive jurisdiction over child departure, removal or abduction from the Republic. This exclusive competence exists pending the establishment of family courts by parliamentary legislation. The Children’s Court proceedings concerning contact arrangements between the respondent and child therefore operated within an entirely separate jurisdictional sphere.
The Supreme Court of Appeal’s decision in Nestlé (SA) (Pty) Ltd v Mars Incorporated [2001] 4 All SA 315 (A) established that lis alibi pendens applies only where identical disputes between identical parties are placed before tribunals with equal competence to end disputes authoritatively. The Nestlé principle requires examination of whether different tribunals possess the requisite statutory authority to resolve the same legal issues.
Sarkas AJ’s statutory interpretation analysis followed established methodology from Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) and Capitec Bank Holdings Limited and Another v Coral Lagoon Investments 194 (Pty) Ltd and Others 2022 (1) SA 100 (SCA), examining legislative language, context, and apparent purpose simultaneously.
Section 18(3)(c)(iii) of the Children’s Act requires parental consent for a child’s departure from the Republic, while section 18(5) specifies that only a competent court may order otherwise when consent is withheld. Section 46 details Children’s Court powers but conspicuously omits relocation authority. The respondent’s argument that Children’s Courts must possess relocation jurisdiction through their guardianship powers under section 45(3B) conflicted with the exclusive jurisdiction provision and the express limitation of Children’s Court authority.
This jurisdictional architecture prevents forum shopping while ensuring specialised courts address matters within their statutory competence, maintaining coherent family law administration across different judicial levels.
The High Court’s Wide Powers as Upper Guardian: Procedural Flexibility in Protecting Children’s Best Interests
The High Court’s role as upper guardian of minor children confers extraordinary judicial powers that transcend conventional procedural limitations and evidentiary constraints. This inherent jurisdiction enables courts to craft innovative remedies when children’s welfare demands creative judicial intervention.
Section 28(2) of the Constitution of the Republic of South Africa, 1996 establishes that children’s best interests are of paramount importance in every matter concerning them. This constitutional imperative, reinforced by section 9 of the Children’s Act 38 of 2005, empowers High Courts to exercise expansive discretionary authority when determining appropriate relief in child-related disputes.
The Full Court’s recent affirmation in M.D.P v W.T.P and Another (Appeal) (A139/2024) [2025] ZAWCHC 300 emphasised that High Courts possess wide powers to establish children’s best interests without being bound by procedural strictures or evidentiary limitations presented by parties. Courts may access any information source capable of assisting in resolving custody and related disputes, requiring consideration of relevant factors and future circumstances when making orders.
This expansive approach received further articulation in DR v NM and Another (3358/2024) [2024] ZAWCHC 165, which recognised the High Court’s inalienable right and authority as upper guardian to establish children’s best interests and make corresponding orders ensuring such interests are effectively served and safeguarded.
The Constitutional Court’s decision in PFE International Inc (BVI) and Others v Industrial Development Corporation of South Africa Ltd 2013 (1) SA 1 (CC) reinforced that superior courts enjoy inherent power to regulate their processes considering justice interests. This power makes every superior court master of its own process, enabling deviation from prescribed rules when justice demands alternative procedures.
Sarkas AJ’s conditional order requiring cooperation in relocation assessments exemplified this flexible approach. The order’s innovative structure addressed the practical reality that meaningful relocation applications require comprehensive expert evaluation while respecting parental autonomy regarding whether to pursue relocation proceedings. The F v F 2006 (3) SA 42 (SCA) recognition of custodian parents’ fundamental rights to dignity, privacy and freedom of movement informed this balanced approach, acknowledging that thwarting such rights might severely impact child welfare.
Urgency in Child-Related Litigation: When Does the Involvement of Minors Justify Departure from Ordinary Court Processes
Urgency determinations in family law matters require careful judicial balance between protecting children’s welfare and preventing abuse of expedited procedures. Courts must distinguish between genuine urgency warranting immediate judicial intervention and manufactured crises designed to circumvent ordinary litigation processes.
The Western Cape High Court’s decision in E.S and Others v P.S and Another (16138/24) [2024] ZAWCHC 201 established that mere involvement of children does not automatically confer urgency on applications. However, the E.S v P.S court acknowledged well-established jurisprudence recognising matters involving child welfare as often inherently urgent, requiring case-specific analysis of particular circumstances.
The E.S v P.S judgment declined to follow the approach in Xtraprops 66 (Pty) Ltd v Phiopater Supplies (Pty) Ltd (20228/14) [2014] ZAWCHC 177, where Binns-Ward J proceeded despite recognising borderline urgency due to complete papers and counsel readiness. The different contextual factors in E.S v P.S distinguished that precedent, demonstrating that urgency assessments are inherently fact-specific rather than formulaic.
Self-created urgency presents particular analytical challenges. MM v NM and Others [2023] ZAKZPHC 117 illustrates how courts examine whether applicants’ own conduct or delay generated the perceived crisis. The MM v NM decision’s finding of “self-evidently self-created” urgency turned on those specific factual circumstances rather than establishing broad principles applicable across different contexts.
Appellate review of urgency determinations operates within constrained parameters recognising trial courts’ superior factual appreciation. The Supreme Court of Appeal in Cornerstone Logistics (Pty) Ltd v Zacpak Cape Town Depot (Pty) Ltd [2022] 2 All SA 13 (SCA) confirmed that urgency determinations involve wide judicial discretion, with appellate interference only warranted where manifest misdirection occurs.
Sarkas AJ’s urgency analysis considered multiple factors including the detailed correspondence between parties regarding Dr Carnie’s assessment, the absence of undue delay by the applicant, the potential for inadequate future redress, and the practical reality of complete papers with prepared counsel. The Cornerstone Logistics principle that urgency decisions cannot be undone once made reinforced the finality of properly exercised discretionary determinations, even where appellate courts might have reached different conclusions on identical facts.
Questions and Answers
What statutory provisions govern leave to appeal applications in the Superior Courts?
Leave to appeal is governed by section 17(1) of the Superior Courts Act 10 of 2013, which requires either reasonable prospects of success or compelling reasons why the appeal should be heard, including conflicting judgments on the matter under consideration.
What standard must applicants meet to demonstrate reasonable prospects of success on appeal?
Applicants must establish a sound, rational basis for concluding there are reasonable prospects of success. A mere possibility of success, an arguable case, or one that is not hopeless is insufficient. The Mkhitha case established that there must be a realistic chance of success with proper grounds supporting this conclusion.
Which courts have jurisdiction over child relocation matters in South Africa?
Section 45(3)(d) of the Children’s Act grants High Courts and Divorce Courts exclusive jurisdiction over the departure, removal or abduction of children from the Republic, pending the establishment of family courts by Act of Parliament.
Can Children’s Courts authorise international child relocation?
No, Children’s Courts lack jurisdiction over child relocation matters. Section 46 of the Children’s Act details the orders Children’s Courts may make and does not include relocation authority, while section 45(3)(d) grants exclusive jurisdiction to High Courts and Divorce Courts.
When does the principle of lis alibi pendens apply in litigation?
The Nestlé case established that lis alibi pendens applies only where the same dispute between the same parties is placed before tribunals with equal competence to end the dispute authoritatively. Different tribunals with different functions and powers cannot create duplication of actions.
What constitutes the High Court’s role as upper guardian of minor children?
The High Court’s upper guardian role, reinforced by the constitutional principle that children’s best interests are paramount, grants wide powers to establish what serves children’s best interests without being bound by procedural strictures or evidentiary limitations presented by parties.
What factors determine urgency in child-related applications?
The E.S v P.S case confirmed that child welfare matters are often inherently urgent, but mere involvement of children does not automatically confer urgency. Courts must examine specific circumstances, including whether urgency is self-created and whether applicants acted without undue delay.
How do appellate courts review trial court discretionary decisions on urgency?
The Cornerstone Logistics case established that urgency determinations involve wide judicial discretion, with appellate interference only justified where manifest misdirection occurs. Trial courts’ factual appreciation receives considerable deference.
What are the requirements for obtaining a final interdict?
Final interdict requires establishing a clear right, injury actually committed or reasonably apprehended, and the absence of similar protection by any other ordinary remedy. The Hotz case confirmed these traditional requirements remain applicable.
What constitutes compelling reasons for granting leave to appeal?
Compelling reasons include substantial public interest, important questions of law, differing judicial interpretations, or discrete issues of statutory interpretation with implications for future cases, though the Caratco case emphasises that merits remain often decisive.
How do courts determine whether expert assessments serve children’s best interests?
Courts consider whether assessments provide necessary information for informed decision-making about children’s welfare. The F v F case recognised that thwarting custodian parents’ fundamental rights might severely impact child welfare, requiring balanced consideration.
What power do superior courts possess to regulate their own processes?
The PFE International case confirmed that superior courts enjoy inherent power to regulate their processes considering justice interests, enabling deviation from prescribed rules when circumstances warrant alternative procedures.
When must all guardians consent to a child’s departure from South Africa?
Section 18(5) of the Children’s Act requires consent of all persons with guardianship unless a competent court orders otherwise, while section 18(3)(c)(iii) specifically addresses consent to departure or removal from the Republic.
What test applies to non-joinder objections in litigation?
The Judicial Service Commission case established that joinder is required where a party has a direct and substantial interest in the subject matter – a legal interest that may be prejudicially affected by the court’s judgment.
Can courts make conditional orders requiring future litigation steps?
Yes, provided such orders serve legitimate judicial purposes and respect party autonomy. Courts may structure relief to address practical realities while maintaining procedural fairness, particularly where children’s best interests require phased or conditional intervention.
Written by Bertus Preller, a Family Law and Divorce Law attorney and Mediator at Maurice Phillips Wisenberg in Cape Town and founder of DivorceOnline and iANC. A blog, managed by SplashLaw, for more information on Family Law read more here. For free and useful Family Law tech applications visit Maintenance Calculator and Accrual Calculator.
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