K.Y.O v M.S (Leave to Appeal) (2024-021334) [2025] ZAGPPHC 655 (13 June 2025)

K.Y.O v M.S (Leave to Appeal) (2024-021334) [2025] ZAGPPHC 655 (13 June 2025)

The court found that it had acted within its inquisitorial powers as upper guardian in matters concerning minor children, and that the process followed did not disregard the audi alterem partem principle. Both parties were given ample opportunity to supplement their papers and arguments, including responding to the Family Advocate's report. The court was not obliged to call the expert to give oral evidence, especially as neither party requested referral to oral evidence. The Family Advocate's involvement was mandated by previous orders and legislation, and the court properly considered both the expert's and the Family Advocate's reports in determining the best interests of the child. The...

Citation
[2025] ZAGPPHC 655
Parties
Applicant: K.Y.O; Respondent: M.S
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
13 June 2025
Case Number
2024-021334
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Dismissal of Variation Application in Family Law Matter
Outcome
Application for leave to appeal refused with costs on Scale B.
Judges
Haupt, AJ
Legal Topics
Parental Rights and Responsibilities, Variation of Custody, Expert Evidence, Role of Family Advocate, Leave to Appeal
Family and Children Civil Procedure Parental Rights and Responsibilities Variation of Custody Expert Evidence Role of Family Advocate Leave to Appeal

Case Brief

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Parties

K.Y.O

Applicant

M.S

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Following Dismissal of Variation Application in Family Law Matter

Legal Issues

  1. 1 Whether the court a quo improperly descended into the arena and disregarded the audi alterem partem principle.
  2. 2 Whether undue reliance was placed on the Family Advocate's report and recommendations over the expert's report.
  3. 3 Whether the punitive costs order was a proper exercise of judicial discretion.

Ratio Decidendi

The court found that it had acted within its inquisitorial powers as upper guardian in matters concerning minor children, and that the process followed did not disregard the audi alterem partem principle. Both parties were given ample opportunity to supplement their papers and arguments, including responding to the Family Advocate's report. The court was not obliged to call the expert to give oral evidence, especially as neither party requested referral to oral evidence. The Family Advocate's involvement was mandated by previous orders and legislation, and the court properly considered both the expert's and the Family Advocate's reports in determining the best interests of the child. The...

Court Disposition

Application for leave to appeal refused with costs on Scale B.

Orders

  • The application for leave to appeal is refused with costs on Scale B.