A R v S S and Another (2019/8877) [2019] ZAGPJHC 98 (25 March 2019)

A R v S S and Another (2019/8877) [2019] ZAGPJHC 98 (25 March 2019)

The court found that the applicant failed to justify the urgency of the application, as the alleged threat of removal of the child from South Africa was unsubstantiated and the period of denied access was not exceptional. The applicant did not establish that the child was at risk of psychological harm or that the respondents were neglectful or incompetent in their care. The application was viewed as an abuse of process, relying on the assumption that all matters involving children are automatically urgent without proper factual motivation. The relief sought was considered grossly intrusive and unsupported by convincing evidence. Accordingly, the application was dismissed, and the...

Citation
[2019] ZAGPJHC 98
Parties
Applicant: A R; Respondent: S S; Respondent: D C
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
25 March 2019
Case Number
2019/8877
Procedural Posture
Urgent Application / Application for Access and Appointment of Expert
Outcome
Application dismissed with costs on the attorney and client scale.
Judges
Sutherland
Legal Topics
Child Access, Urgent Interdict, Abuse of Process, Attorney and Client Costs
Family and Children Civil Procedure Child Access Urgent Interdict Abuse of Process Attorney and Client Costs

Case Brief

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Parties

A R

Applicant

S S

Respondent

D C

Respondent

Procedural Posture

Urgent Application / Application for Access and Appointment of Expert

Legal Issues

  1. 1 Whether the application for urgent access to the child is justified on the facts.
  2. 2 Whether the applicant established sufficient grounds for the appointment of an expert to investigate psychological harm or alienation syndrome.
  3. 3 Whether the threat of removal of the child from South Africa was bona fide.

Ratio Decidendi

The court found that the applicant failed to justify the urgency of the application, as the alleged threat of removal of the child from South Africa was unsubstantiated and the period of denied access was not exceptional. The applicant did not establish that the child was at risk of psychological harm or that the respondents were neglectful or incompetent in their care. The application was viewed as an abuse of process, relying on the assumption that all matters involving children are automatically urgent without proper factual motivation. The relief sought was considered grossly intrusive and unsupported by convincing evidence. Accordingly, the application was dismissed, and the...

Court Disposition

Application dismissed with costs on the attorney and client scale.

Orders

  • The application is dismissed.
  • The applicant shall bear the respondents' costs on the attorney and client scale.