van Schalkwyk v Nell ; In re: M v M (57215/2017) [2019] ZAGPPHC 1107 (21 August 2019)

van Schalkwyk v Nell ; In re: M v M (57215/2017) [2019] ZAGPPHC 1107 (21 August 2019)

The court found that Ms Nell did not have a direct and substantial interest in the proceedings sufficient to justify intervention, as her interests were limited to her own professional and financial concerns and did not affect the interests of the children or parties to the main application. The court held that the discretion to disallow costs was properly exercised and did not amount to a punitive order akin to a de bonis propriis order. The ex parte and main applications were considered to fall within the ambit of Rule 43 and Section 16(3) of the Superior Courts Act, precluding an appeal. The threshold for granting leave to appeal was not met, as there was no reasonable prospect that...

Citation
[2019] ZAGPPHC 1107
Parties
Appellant: Adv Chanel van Schalkwyk; Appellant: Sussarah Maria Elizabeth Nell; Applicant: D[....] M[....]; Respondent: O[....] M[....]
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
21 August 2019
Case Number
57215/2017
Procedural Posture
Leave to Appeal / Application for Leave to Appeal and Intervention Following Main Judgment
Outcome
Applications for leave to intervene and leave to appeal are refused.
Judges
L C Haupt
Legal Topics
Children's Act, Parental Alienation, Expert Evidence, Costs Award, Intervention Application
Family and Children Civil Procedure Children's Act Parental Alienation Expert Evidence Costs Award Intervention Application

Case Brief

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Parties

Adv Chanel van Schalkwyk

Appellant

Sussarah Maria Elizabeth Nell

Appellant

D[....] M[....]

Applicant

O[....] M[....]

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal and Intervention Following Main Judgment

Legal Issues

  1. 1 Whether the social worker, Ms Nell, should be granted leave to intervene for purposes of applying for leave to appeal.
  2. 2 Whether Adv van Schalkwyk and Ms Nell should be granted leave to appeal the disallowance of their fees and, in Ms Nell's case, her referral to her professional body.
  3. 3 Whether the ex parte application and main application fell within the ambit of Rule 43 and Section 16(3) of the Superior Courts Act.

Ratio Decidendi

The court found that Ms Nell did not have a direct and substantial interest in the proceedings sufficient to justify intervention, as her interests were limited to her own professional and financial concerns and did not affect the interests of the children or parties to the main application. The court held that the discretion to disallow costs was properly exercised and did not amount to a punitive order akin to a de bonis propriis order. The ex parte and main applications were considered to fall within the ambit of Rule 43 and Section 16(3) of the Superior Courts Act, precluding an appeal. The threshold for granting leave to appeal was not met, as there was no reasonable prospect that...

Court Disposition

Applications for leave to intervene and leave to appeal are refused.

Orders

  • The application for leave to intervene by the social worker, Sussarah Elizabeth Nell, is refused.
  • The application for leave to appeal by Adv Chanel Van Schalkwyk is refused.