S.P v C.W and Another (Leave to Appeal) (88660/2019) [2024] ZAGPPHC 1244 (5 December 2024)
- Citation
- [2024] ZAGPPHC 1244
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- North Gauteng High Court, Pretoria
- Panel
- Millar
- Case number
- 88660/2019
More details
- Court
- North Gauteng High Court, Pretoria
- Panel
- Millar
- Case number
- 88660/2019
On this page
Professional case brief
Research organized from the available case record
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 GeyerW[…], C[…] J[…]
Respondent Counsel: Adv. R FerreiraW[…], B[…]
Respondent Counsel: Adv. R Ferreira03
Procedural history
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
- 01
Whether the applicant has demonstrated reasonable prospects of success on appeal against the order removing him as guardian and awarding primary residence and care to the respondents.
- 02
Whether there is any other compelling reason for leave to appeal to be granted under section 17(1) of the Superior Courts Act.
- 03
Whether the applicant's compliance with the order constitutes acquiescence or peremption of his right to appeal.
- 04
Whether costs should be awarded on an attorney and client scale.
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
Legal principles
- 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.
North Gauteng High Court, Pretoria
Judgment
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.
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