B.S v M.J.J.D.J and Another (2024/061371) [2024] ZAGPPHC 1372 (26 December 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

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

CASE NO: 2024/061371

(1) REPORTABLE: NO

(2) OF INTEREST TO OTHER JUDGES: NO

(3) REVISED: NO

Date: 26 December 2024

In the matter between:

B[...] S[...]

Applicant

and

M[...] J[...] J[...] D[...] J[...]

First Respondent

D[...] D[...] J[...]

Second Respondent

JUDGMENT

DE VOS AJ

[1] The applicant is D[...]’s biological mother. D[...] was placed with the respondents immediately after his birth and they have been taking care of him since birth. He is now four years old. D[...] has special medical needs as a result of his exposure to drugs in utero. This is not disputed. The respondents are currently addressing D[...]'s medical needs, guided by Dr Phelps, a paediatrician. The Children's Court has approved Dr Phelps' position as D[...]’s paediatrician.

[2] The applicant approached the Court seeking the following core relief:

“No medical decisions shall be taken by the respondents in the absence of written consent of the biological mother, which consent shall not be unreasonably withheld, and if after the intervention by the curator, the respondents may approach the Court for the required consent.”

[3] Effectively, the applicant requests the Court to grant her the final medical decision over young D[...]. The factual basis for seeking this relief is that the applicant contends the respondents are providing D[...] with strong medications.

[4] The Court was not satisfied that the applicant had made out a case for this relief and dismissed the application. The applicant now seeks leave to appeal against the Court’s order. The applicant filed substantive heads of argument on the date of the hearing of the matter. The respondents had not had sight to the submissions prior to the hearing. In fairness to the respondents, the Court granted the respondents an opportunity to file submissions in response.

[5] The Court has considered the written and oral submissions made by the parties. The Court is not of the view that the application bears prospects of success for the reasons that follow.

[6] The applicant contends that it is in the best interest of young D[...], for the applicant to have the final say over his medical care. The applicant has to provide a factual basis for this case. The high-watermark of the applicant’s factual case is that the medications which D[...] is receiving are “strong”. The applicant does not contend the medicine is not necessary. The applicant does not contend that the respondents are providing the medicine outside the advice of medical professionals. The applicant is not even contending that the medicines are not needed. The core of the applicant’s complaint is that D[...] is receiving “strong” medication. There is no allegation that the medicines are not in D[...]’s best interests. The applicant concedes she lacks the know- how to even make such an allegation. The only facts relied on by the applicant is that the medicines prescribed by D[...]’s doctors are “strong”.

[7] The applicant also does not make out a case that if the medicines are strong – why she should have the final say. The applicant has not made out a case why it would be in young D[...]’s best interests for her to have a final say over his medical care. No facts have been presented on which a court can conclude that it would be in D[...]’s best interests for the applicant to have a final say over his medical care.

[8] The court is not persuaded that, even if one were to ignore the respondents’ evidence – which is substantial, the applicant will convince an appellate court that the relief being sought is in D[...]’s best interests.

[9] The respondents’ evidence however is overwhelming. They have presented a consistent and substantiated case that the medicines which D[...] receives are prescribed, needed and in D[...]’s best interests. The respondents have presented the Court with reports from medical doctors, psychologists and sociologists, all indicating a child in need of interventionist medical care. These reports were obtained in the context of the respondents – over the past four years – seeking to ensure young D[...] is developing appropriately. The respondents have been able to show that the medicines are not only necessary, but prescribed by paediatricians to treat a medical condition caused by D[...] being exposed to drugs – including meth - whilst in utero.

[10] In addition, the applicant has met with D[...]’s paediatrician – who explained the need for the medicines. The paediatrician’s notes of this consultation showed that the applicant indicated a lack of interest in D[...]’s medical needs – and rather that her focus was on seeking to disprove that D[...]’s medical needs were as a result of her drug use. Despite this visit and explanation, the applicant persists in the speculation that there is something untoward in the medical care which D[...] is receiving.

[11] The respondents’ evidence – which are objective and by medical professionals – clearly show that D[...] needs the medicines which he is receiving.

[12] There are no prospects of success of the applicant proving to an appellate court that the relief being sought is in D[...]’s best interests. Factually, no such case has been made out and in any event, the respondents have proven clearly that the medicines are being prescribed in D[...]’s best interests.

[13] In addition to the absence of a factual case being made out, the applicant’s cause of action is unclear. The applicant’s representatives presents the case as benign as one solely involving the appointment of a curator.

[14] The notice of motion indicates the contrary. The notice of motion stipulates the relief being sought: the applicant wishes to have the final say over the medical care of young D[...]. The applicant has failed to show the Court what provision of law it relies on for this relief – as such relief certainly falls outside Rule 57 dealing with the appointment of a curator ad litem. The applicant has approached the Court seeking relief which Rule 57 does not contemplate.

[15] The applicant has not only failed to make out any factual case at all, but in addition has failed to bring the relief it seeks within the four corners of Rule 57. The case lacks both the facts and the legal basis to sustain the relief being sought. On this basis as well, the Court concludes there are no prospects of the applicant persuading an appellate court to grant the relief sought.

[16] Lastly, this Court held that the legislative framework does not provide the applicant with the right to have a final say over D[...]’s medical care. The Court went further and held that even if this interpretation of section 129 (4) of the Children’s Act was wrong, on the facts of this case – consent for medical treatment could not be unreasonably withheld.

[17] The Court found – on the facts of this case that the applicant was unreasonably withholding consent. In considering whether consent was being reasonably withheld – the Court had regard to the factual context of the case. This included that the applicant halted D[...]’s occupational therapy solely because the therapist would not testify in support of the applicant at the adoption proceedings.

[18] D[...] requires this therapy as a result of being exposed to drugs in utero. The respondents are providing this therapy. The applicant refuses this therapy on the basis that the therapist would not testify in her favour at court proceedings. This refusal is unreasonable and not guided by what is D[...]’s best interests – but rather by what favours the applicant at the adoption proceedings.

[19] In addition, the applicant refusing medical care by a court appointed practitioner – absent any factual basis – is also unreasonable. Particularly, as the respondents tendered for the applicant to obtain a second medical opinion.

[20] There are no prospects of the applicant being able to persuade an appellate court that the applicant’s refusal of medical care is reasonable.

[21] As to costs, the applicant is entitled to approach this Court seeking leave to appeal. The abusive nature of the urgent application – including the absence of a letter of demand and instituting urgent proceedings a year after the event complained of - does not attach to the application for leave to appeal. For this reason, the court does not grant any costs in the application for leave to appeal.

Conclusion

[22] The Court orders that:

a) The application is dismissed.

I de Vos Acting

Judge of the High Court

Delivered: This judgment is handed down electronically by uploading it to the electronic file of this matter on CaseLines. As a courtesy gesture, it will be emailed to the parties/their legal representatives.

Counsel for the applicant: R Orr Instructed by: Jenkins Incorporated Attorneys Counsel for the respondents: Telicia Meintjies Instructed by Heuer Attorneys Date of the hearing: 19 November 2024 Date of respondents written submissions: 10 December 2024 Date of judgment: 26 December 2024