N S v J N

The appellant (father) and respondent (mother) are unmarried biological parents of a minor child, D, born 4 May 2018. The mother, a South African citizen, is a permanent resident of Malaysia where the child resided with her since birth. The parties had functional arrangements for parental rights until March 2020 when COVID-19 lockdown travel restrictions were imposed. On 7 March 2020, the father fetched the child from the mother in South Africa with the understanding he would return the child to Malaysia on 21 March 2020. However, due to travel restrictions and later the father's refusal, the child was not returned to Malaysia. This led to multiple court applications by both parties. Mosopa J ordered on 1 October 2020 that the father restore care and primary residence to the mother and permit her to return to Malaysia with the child. Sardiwalla J subsequently issued contradictory orders. The respondent then brought an urgent application to set aside Sardiwalla J's orders, which Lamprecht AJ granted on 11 November 2020, also dismissing the appellant's application regarding contact. By the time of the leave to appeal application, the mother and child had already returned to Malaysia, and at the time of the SCA hearing, they were residing in Singapore with the mother's husband and another child.

• Whether the appeal should be dismissed as moot under section 16(2)(a)(i) of the Superior Courts Act 10 of 2013
• Whether paragraphs 2 and 3 of Lamprecht AJ's order were dispositive of real issues between the parties, determinative of their rights, and final in effect so as to be appealable
• Whether the appeal had been rendered academic given that the respondent and child had left South Africa
• Whether it would be in the interests of justice to hear a moot appeal
• Whether a punitive costs order should be made

The appeal was dismissed with costs, including the costs of two counsel to be paid on the attorney and client scale.

An appeal will be dismissed as moot under section 16(2)(a)(i) of the Superior Courts Act 10 of 2013 where the decision sought will have no practical effect or result, and the appellant fails to establish that it would be in the interests of justice to hear the appeal despite its mootness. Courts exist to settle concrete controversies and actual infringements of rights, not to pronounce upon abstract questions or provide advisory opinions. Where circumstances have changed such that any order the court might make would be futile (such as where an order to prevent a party from leaving the jurisdiction is sought but that party has already left), the appeal should be dismissed on grounds of mootness.

The Court made observations about vexatious litigation in the family law context, noting that proceedings may be regarded as vexatious even where a party enters into litigation with upright purpose and firm belief in the justice of their cause, if those proceedings put the other side to unnecessary trouble and expense which they ought not to bear. The Court also observed that the appellant, despite believing he was acting in the child's best interests, had in fact lost sight of those interests and focused on his own interests through the multiple applications he launched. The Court further noted the practical difficulty that would arise in having the Family Advocate investigate and report where the child and respondent are outside South Africa's borders, reinforcing the futility of the appeal.

This case reinforces the application of section 16(2)(a)(i) of the Superior Courts Act 10 of 2013, which allows courts to dismiss appeals where the decision sought would have no practical effect or result. It demonstrates the judiciary's commitment to efficient use of judicial resources and refusal to pronounce on abstract or academic questions, particularly in family law matters involving cross-border parental disputes. The case also illustrates the court's willingness to impose punitive costs orders where a party persists with litigation that is vexatious and causes the other party unnecessary trouble and expense, even where the party believes they are acting in good faith or in the child's best interests. It provides guidance on when courts will decline to hear moot appeals and the factors to consider when determining whether it is in the interests of justice to entertain such appeals.