N S v J N

The appellant (father) and respondent (mother) are the unmarried biological parents of a minor child born in 2018. The child ordinarily resided with the mother in Malaysia. During COVID-19 travel restrictions in March 2020, the child remained in South Africa with the father, who later refused to return the child when travel reopened. This led to multiple urgent and counter applications in the Gauteng Division of the High Court concerning parental rights, primary residence, contact, and the child’s removal from South Africa. Mosopa J ordered the return of the child to the mother and permitted her to leave South Africa. Conflicting subsequent orders were issued by Sardiwalla J. Lamprecht AJ later set aside Sardiwalla J’s orders, held that Mosopa J’s order was not suspended by an application for leave to appeal, dismissed certain relief sought by the father, and made a punitive costs order against him. By the time leave to appeal was considered, the mother and child had already left South Africa.

The appeal was dismissed in terms of s 16(2)(a)(i) of the Superior Courts Act. The appellant was ordered to pay costs, including the costs of two counsel, on the attorney and client scale.

The case reaffirms the application of the mootness doctrine in South African appellate practice and underscores the Supreme Court of Appeal’s reluctance to entertain appeals that have no practical effect. It also illustrates the Court’s willingness to impose punitive costs where litigation is vexatious, even in sensitive family law disputes involving children.