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

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: South Gauteng High Court, Johannesburg South Africa: South Gauteng High Court, Johannesburg You are here: SAFLII >> Databases >> South Africa: South Gauteng High Court, Johannesburg >> 2024 >> [2024] ZAGPJHC 859 | Noteup | LawCite sino index ## J.S v Z.M (2024/090962) [2024] ZAGPJHC 859 (29 August 2024) J.S v Z.M (2024/090962) [2024] ZAGPJHC 859 (29 August 2024) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPJHC/Data/2024_859.html sino date 29 August 2024 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: 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. 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. sino noindex make_database footer start