Download PDF

South Africa Judgment

North Gauteng High Court, Pretoria

S.P v C.W and Another (Leave to Appeal) (88660/2019) [2024] ZAGPPHC 1244 (5 December 2024)

On this page

Professional case brief

Research organized from the available case record

Source document

01

Holding and result

The court found that the grounds advanced for leave to appeal were a repetition of arguments already considered and rejected in the main judgment. The applicant's compliance with the order regarding the placement of the minor child did not amount to acquiescence or peremption of his right to appeal. After considering the submissions and the voluminous record, the court was not persuaded that another court would reach a different conclusion or that there was any compelling reason to grant leave to appeal. The application was therefore refused, and costs were awarded against the applicant on the attorney and client scale, including costs for the curatrix.

Court disposition

Application for leave to appeal refused with costs on the attorney and client scale.

Orders

  • The application for leave to appeal is refused with costs on the scale as between attorney and client.
  • The costs of counsel for the respondents in this application as well as for the curatrix are awarded on scale C.

02

Material facts

Parties

P[...], S[...] J[...]

Applicant Counsel: Adv. H Geyer

W[…], C[…] J[…]

Respondent Counsel: Adv. R Ferreira

W[…], B[…]

Respondent Counsel: Adv. R Ferreira

03

Procedural history

  1. Posture

    Leave to Appeal / Application for Leave to Appeal Following Judgment and Order Handed Down on 2 December 2024.

04

Questions and positions

Legal issues

Party arguments

Applicant
The applicant contended that the grounds for leave to appeal were not novel but repeated arguments previously advanced in the main case. He argued that compliance with the order regarding the placement of the minor child did not amount to acquiescence or peremption of his right to appeal. The applicant maintained that the findings against him warranted reconsideration by another court.
Respondent
The respondents argued that the application for leave to appeal merely reiterated unsuccessful arguments from the main case and did not raise any new or compelling grounds. They submitted that there were no reasonable prospects of success and that the applicant's conduct justified a costs order on an attorney and client scale, consistent with the main judgment.

05

Court’s reasoning

  1. 01

    Section 17(1) of the Superior Courts Act 10 of 2013

    Leave to appeal may only be granted if the appeal would have a reasonable prospect of success or if there is some other compelling reason for the appeal to be heard, including conflicting judgments on the matter.

06

Ratio, limits and disposition

Ratio decidendi

The court found that the grounds advanced for leave to appeal were a repetition of arguments already considered and rejected in the main judgment. The applicant's compliance with the order regarding the placement of the minor child did not amount to acquiescence or peremption of his right to appeal. After considering the submissions and the voluminous record, the court was not persuaded that another court would reach a different conclusion or that there was any compelling reason to grant leave to appeal. The application was therefore refused, and costs were awarded against the applicant on the attorney and client scale, including costs for the curatrix.

Obiter and limits

  • The court noted the persistent conduct of the applicant in launching unmeritorious attacks on previous courts and the curatrix, both in the main case and in the application for leave to appeal.
  • The judgment clarified that compliance with a court order does not necessarily constitute acquiescence or peremption of the right to appeal, especially where compliance is compelled by the order itself.

Court disposition

Application for leave to appeal refused with costs on the attorney and client scale.

  • The application for leave to appeal is refused with costs on the scale as between attorney and client.
  • The costs of counsel for the respondents in this application as well as for the curatrix are awarded on scale C.

Source and reliance status

North Gauteng High Court, Pretoria

This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.

Judgment reading view

Judgment text

The complete available source text.

Source document

North Gauteng High Court, Pretoria

Judgment

[2024] ZAGPPHC 1244

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT

OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

CASE NUMBER: 88660/2019

(1) REPORTABLE: YES/NO

(2) OF INTEREST TO OTHER JUDGES: YES/NO

(3) REVISED

DATE: 5 DECEMBER 2024

SIGNATURE:

In the matter between: P[...], S[...] J[...]

APPLICANT and W[…], C[…] J[…]

FIRST

RESPONDENT W[…], B[…]

SECOND

RESPONDENT

In re: W[…], C[…] J[…]

FIRST

APPLICANT W[…], B[…]

SECOND

APPLICANT and P[...], S[...] J[...]

FIRST

RESPONDENT P[...], H[...] I[...]

SECOND

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)

THIRD

RESPONDENT

ABSA TRUST LIMITED N.O. (in their capacity as the appointed executor)

FOURTH

RESPONDENT

ABSA PENSION FUND

FIFTH

RESPONDENT

MASTER OF THE HIGH

COURT

SIXTH

RESPONDENT In re: ADV LC HAUPT SC in her capacity as curator ad litem for the minor children - M[…] W[…] (born on 12 June 2009) R[…] W[…] (born on 07 May 2015)

Coram:

Millar J

Heard on:

5 December 2024

Delivered:

5 December 2024 - This judgment was handed down electronically by circulation to the parties' representatives by email, by being uploaded to the CaseLines system of the GD and by release to SAFLII. The date and time for hand-down is deemed to be 14H00 on 5 December 2024.

JUDGMENT

MILLAR J

[1] This is an application for leave to appeal against a judgment and order handed down on 2 December 2024. The judgment and order provide inter alia for the removal of Mr. P[...] as guardian of two minor children and for the appointment of Mr. W[…] in his stead. The order also provides that the primary residence and care are also awarded to Mr. W[…] and his wife. There are in addition ancillary orders relating to the engagement between the guardian and primary care giver/s and the Trust established for the minor children by their late father.

[2] Pursuant to the order, arrangements were made for the youngest of the two minor children to take up residence with Mr. and Mrs. W[…]. Presently, no such arrangement has occurred in respect of the older child as she has been away on a school sporting camp and will only return today.

[3] Counsel for Mr. P[...] was at pains to explain that although this application for leave to appeal was only served after the youngest child had already been placed in the care of Mr. and Mrs. W[…], this had occurred in order to comply with the court order and was not to be interpreted as an acquiescence to the order which would have had the effect of perempting Mr. P[...]’s right to apply for leave to appeal.

[4] I accept that this is so. When this application for leave to appeal was called, there was also at the same time, brought by Mr. and Mrs W[…], an application in terms of section 18(1) and (3) of the Superior Courts Act. I heard both applications and reserved judgement. This judgement deals only with the application for leave to appeal. The second application will be dealt with by me in a separate judgement.

[5] The test for granting leave to appeal pertinent to the present matter is set out in section 17(1) of the Superior Courts Act[1] as follows:

“(1) Leave to appeal may only be given where the judge or judges concerned are of the opinion that

(a) (i) the appeal would have a reasonable prospect of success or

(ii) there is some other compelling reason why the appeal should be heard, including conflicting judgments on the matter under consideration”

[6] I have considered the grounds upon which the application has been brought. None of the grounds are novel and are in their terms a repetition of the arguments made on behalf of Mr. P[...] in the main case. It suffices to states that the grounds upon which the application is predicated apply to every finding made that did not support the case made out on behalf of Mr. P[...].

[7] In the reasons given by me in the judgment for the orders granted, I addressed the case advanced for Mr. P[...]. I indicated in the judgment that the papers in the matter extended to 4726 pages and furthermore that I did not intend to deal with every incident that had happened over the 5 years of this litigation. Mr. P[...] sought to present the main case on this basis and similarly so, his application for leave to appeal.

[8] I have considered the grounds upon which the application for leave to appeal has been advanced and the reasons given by me in the judgment for the orders that were granted. I have also considered the submissions made by counsel for the respective parties as well as the curatrix in the present application.

[9] I am not persuaded that another court would come to a different conclusion or that there is some other compelling reason why leave to appeal should be granted.

[10] The costs will follow the result. It is necessary to mention that the same course of conduct with regards to unmeritorious attacks on previous courts and on the curatrix that was adopted in the main case, has been adopted in this application and hence the order for costs will be on the same basis as that granted in the main application.

[11] In the circumstances, I make the following order:

[11.1] The application for leave to appeal is refused with costs on the scale as between attorney and client. The costs of counsel for the respondents in this application as well as for the curatrix are awarded on scale C.

A MILLAR

JUDGE

OF THE HIGH COURT

GAUTENG DIVISION,

PRETORIA

HEARD ON:

5 DECEMBER 2024

JUDGMENT DELIVERED ON:

5 DECEMBER 2024

IN THE APPLICATION FOR

LEAVE TO APPEAL

CURATRIX AD LITEM:

ADV. L HAUPT SC

ATTORNEY FOR CURATRIX AD LITEM:

SANET DE LANGE ATTORNEYS

REFERENCE:

MS. N FOURIE

COUNSEL FOR APPLICANT:

ADV. H GEYER

INSTRUCTED BY:

GROHOVAZ ATTORNEYS INC.

REFERENCE:

MS. A GEYER

COUNSEL FOR THE RESPONDENTS: ADV. R FERREIRA

INSTRUCTED BY:

VDT ATTORNEYS

REFERENCE:

MR. D FISCHER

[1] 10 of 2013.

Source wording is retained. Consult the source document for its original formatting and pagination.

Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

Superior Courts Act 10 of 2013

Legislation

Legislation referenced in the available case record.

Case-aware research

Ask AI about this case

The judgment and available research above are public. New questions open in a separate private conversation grounded in this case.

About this LexChat collection

This page organizes the available case record for research. Verify quotations, current status, and subsequent treatment against the source document. Corrections can be reported to hello@esheria.ai.

Legal information, not legal advice. Research summaries do not replace the judgment.