Van der Westhuizen and Another v Hauck (9695/08) [2009] ZAWCHC 199 (28 October 2009)

Van der Westhuizen and Another v Hauck (9695/08) [2009] ZAWCHC 199 (28 October 2009)

The court found that the applicants were represented by an experienced advocate who was given sufficient opportunity to address the court regarding the curator's recommendations. The failure to reply was not fatal and did not constitute grounds for appeal. All relevant documents were served on the children's commissioner and family advocate, rendering the criticism unfounded. The applicants did not cooperate with the reunification process, and their actions were not in Payton's best interests. Expert evidence indicated that continued litigation would be detrimental to Payton, and her current circumstances adequately meet her needs. The court concluded that there were no reasonable...

Citation
[2009] ZAWCHC 199
Parties
Applicant: Johannes Gysbertus Deon van der Westhuizen; Applicant: Cornelia Maria van der Westhuizen; Respondent: Heinz Gerhard Hauck
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
28 October 2009
Case Number
9695/08
Procedural Posture
Leave to Appeal / Application for Leave to Appeal to the Full Bench
Outcome
Application for leave to appeal dismissed with costs.
Judges
Goliath
Legal Topics
Best Interests of Child, Leave to Appeal, Custody and Access, Expert Evidence, Costs Award
Family and Children Civil Procedure Best Interests of Child Leave to Appeal Custody and Access Expert Evidence Costs Award

Case Brief

Summary, issues, holding and outcome

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Parties

Johannes Gysbertus Deon van der Westhuizen

Applicant

Cornelia Maria van der Westhuizen

Applicant

Heinz Gerhard Hauck

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal to the Full Bench

Legal Issues

  1. 1 Whether the court erred in its evaluation and interpretation of expert reports.
  2. 2 Whether the failure to hear viva voce evidence and to involve the children's commissioner and family advocate constituted grounds for appeal.
  3. 3 Whether the applicants' alleged lack of cooperation with the reunification process was correctly assessed.

Ratio Decidendi

The court found that the applicants were represented by an experienced advocate who was given sufficient opportunity to address the court regarding the curator's recommendations. The failure to reply was not fatal and did not constitute grounds for appeal. All relevant documents were served on the children's commissioner and family advocate, rendering the criticism unfounded. The applicants did not cooperate with the reunification process, and their actions were not in Payton's best interests. Expert evidence indicated that continued litigation would be detrimental to Payton, and her current circumstances adequately meet her needs. The court concluded that there were no reasonable...

Court Disposition

Application for leave to appeal dismissed with costs.

Orders

  • The application for leave to appeal is dismissed with costs.