C.W and Another v S.P and Others (Section 18) (88660/2019) [2024] ZAGPPHC 1242 (5 December 2024)

C.W and Another v S.P and Others (Section 18) (88660/2019) [2024] ZAGPPHC 1242 (5 December 2024)

The court found that exceptional circumstances exist, including the respondent's persistent non-compliance with court orders, repeated appeals intended to frustrate execution, and the urgent need for therapy for the minor children, which has been denied due to the respondent's conduct. The presence of the daughter's fiancé in the family home poses a potential threat to the minor female child, and expert evidence indicates the respondent may lack the capacity to care for the children. The applicants have demonstrated willingness to provide necessary care and therapy. The best interests of the children require immediate implementation of the order to avoid further harm and developmental...

Citation
[2024] ZAGPPHC 1242
Parties
Applicant: C[...] W[...]; Applicant: B[...] W[...]; Respondent: S[...] P[...]; Respondent: H[...] P[...]; Respondent: Aminaah Khan N.O. (in her capacity as nominee for ABSA Trust Ltd, the duly appointed trustee of the C[...] J[...] W[...] Testamentary Trust); Respondent: ABSA Trust Limited N.O. (in their capacity as the appointed executor); Respondent: ABSA Pension Fund; Respondent: Master of the High Court
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
5 December 2024
Case Number
88660/2019
Procedural Posture
Urgent Application / Section 18(3) Application for Execution Pending Appeal
Outcome
Application in terms of Section 18(3) of the Superior Courts Act 10 of 2013 granted; execution of the order pending appeal ordered.
Judges
Millar
Legal Topics
Guardianship, Section 18 Execution Pending Appeal, Best Interests of Child, Irreparable Harm, Therapy for Minors
Family and Children Civil Procedure Guardianship Section 18 Execution Pending Appeal Best Interests of Child Irreparable Harm Therapy for Minors

Case Brief

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Parties

C[...] W[...]

Applicant

B[...] W[...]

Applicant

S[...] P[...]

Respondent

H[...] P[...]

Respondent

Aminaah Khan N.O. (in her capacity as nominee for ABSA Trust Ltd, the duly appointed trustee of the C[...] J[...] W[...] Testamentary Trust)

Respondent

ABSA Trust Limited N.O. (in their capacity as the appointed executor)

Respondent

ABSA Pension Fund

Respondent

Master of the High Court

Respondent

Procedural Posture

Urgent Application / Section 18(3) Application for Execution Pending Appeal

Legal Issues

  1. 1 Whether exceptional circumstances exist to justify execution of the order pending appeal.
  2. 2 Whether the applicants will suffer irreparable harm if the order is not executed.
  3. 3 Whether the respondent will suffer irreparable harm if the order is executed.

Ratio Decidendi

The court found that exceptional circumstances exist, including the respondent's persistent non-compliance with court orders, repeated appeals intended to frustrate execution, and the urgent need for therapy for the minor children, which has been denied due to the respondent's conduct. The presence of the daughter's fiancé in the family home poses a potential threat to the minor female child, and expert evidence indicates the respondent may lack the capacity to care for the children. The applicants have demonstrated willingness to provide necessary care and therapy. The best interests of the children require immediate implementation of the order to avoid further harm and developmental...

Court Disposition

Application in terms of Section 18(3) of the Superior Courts Act 10 of 2013 granted; execution of the order pending appeal ordered.

Orders

  • The application in terms of Section 18(3) of the Superior Courts Act 10 of 2013 is granted.
  • If the first respondent launches an application for leave to appeal to the Supreme Court of Appeal, then pending final determination of such application and any appeal, the order made by this court on 2 December 2024 is to be put into operation immediately.