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[2020] ZAGPJHC 379
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R[....] v R[....] (44169/2019) [2020] ZAGPJHC 379 (2 December 2020)
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 LOCAL
DIVISION, JOHANNESBURG
(1)
REPORTABLE:
YES
/NO
(2)
OF INTEREST TO OTHER JUDGES: YES/NO
(3)
REVISED
CASE
NO: 44169/2019
In
the matter between:
K[....]
R[....]
Applicant
and
K[....]
M[....] R[....]
Respondent
In
re the ex parte application of:
K[....]
R[....]
Applicant
and
C[....]
P[....]
First
Respondent
K[....]
M[....] R[....]
Second Respondent
R[....]
M[....] B[....]
Third Respondent
(in
re: N[....] M[....] A[....] R[....])
JUDGEMENT
SEGAL AJ
1.
This matter concerns
the interests of a 7-year-old boy, N[....] R[....]. N[....]’s
grandmother K[....] R[....] and his mother
K[....] R[....] are the
main parties to the litigation.
2.
Consequent upon hearing
the opposed urgent application which was allocated to me during the
week of 12 October 2020, I delivered
judgment in this matter on 3
November 2020.
3.
In that judgment there
are two important features that have a bearing on this matter. In the
first instance I found that the matter
was urgent. Secondly, I made
an interim order in terms of Part A of the Notice of Motion, pending
the finalisation of Part B.
4.
Given the manifest
urgency of the matter, I made provisions in my order for the hearing
of Part B to be accelerated and for priority
to be given to its
conclusion via oral evidence.
5.
On 4 November 2020, the
Applicant in the Appeal, K[....] M[....] R[....] (hereinafter
referred to as “
K[....]
”)
delivered an Application for Leave to Appeal which was set down for
hearing on 18 November 2020.
6.
The Application for
Leave to Appeal was opposed by the Respondent in the Application for
Leave to Appeal, K[....] R[....] (hereinafter
referred to as
“
K[....]
”).
In addition to the Application for Leave to Appeal, four other
applications were brought before me as follows:-
6.1
K[....] R[....]
brought:
6.1.1
an Application to
adduce further evidence brought on 17 November 2020;
6.1.2
an Application in terms
of Section 18 of the Superior Courts Act (which Application
incorporated an Application for the appointment
of a curator ad
litem) for an order declaring the order of 4 November 2020 to be
final and dispositive in effect and thus suspending
the operation
and/or execution of the order pending the outcome of an Appeal,
alternatively suspending the operation of the order
pending the
outcome of the Appeal process in terms of Section 18 (2) and/or 18
(3) of the
Superior Courts Act of 2013
.
7.
The Applicant sought an
order that the Application for Leave to Appeal be postponed to enable
K[....] to file papers in the
Application in terms of
Section
18
of the
Superior Courts Act and
in the Application to adduce
further evidence. Counsel for K[....], Ms De Wet SC, requested that
all three matters to be dealt
with on an alternative date in December
2020.
8.
The biological father
of N[....], Mr R[....] M[....] B[....] (hereinafter referred to as
“
Mr B[....]
”)
brought an Application for Leave to intervene in the Application and
I was advised that at the hearing, Mr B[....] sought
a postponement
of the Application for Leave to Appeal to enable him to join Part A
and file papers in this regard.
9.
In my judgment of 3
November 2020, I ordered K[....] to serve a copy of the order on Mr
B[....] and provided an opportunity for
him to apply for Leave to
intervene in Part B within 20 court days of service of the order upon
him.
10.
K[....] did not oppose
Mr B[....] being joined and counsel for her, Advocate Bishop in fact
contended that he had already been joined.
I accordingly joined
him to the proceedings as the Second Respondent by agreement between
the parties.
11.
Mr B[....]’s
Counsel, Ms Hartford SC, proposed that the matter be postponed to
December 2020 alternatively to mid-January
2021 to allow Mr B[....]
to file papers in respect of Part A of the application. Her
contention was that my making an order in
terms of part A in the
absence of Mr B[....], severely infringed upon his rights as
N[....]’s father. What remains unexplained
is why Mr B[....]
now seeks to join the Appeal after having taken no steps whatsoever
in the matter since December 2019.
12.
Insofar as the
Application to admit new evidence is concerned, I am of the view that
I am
functus officio
and that given the fact that my acting appointment has come to an
end, it is beyond my competence to deal with this application.
13.
The most important
consideration from the perspective of the court is the protection of
N[....]. His rights trump those of either
of his parents or those of
his grandmother. The matter is urgent and having already found Part A
to be urgent, nothing persuades
me to the contrary. The
considerations for N[....]’s welfare and emotional stability
outweigh such other considerations as
may be advanced to delay the
implementation of the order.
14.
I
consider the Application for Leave to Appeal to be urgent and
contrary to N[....]’s best interests to postpone. I now turn
to
what I consider to be the fundamental issue in the Application for
Leave to Appeal namely, whether my order in terms of Part
A is
Appealable. As a general rule, for a decision to be Appealable, it
has to have three attributes. It has to be final in effect,
has to be
definitive of the rights of the parties and has to have the effect of
disposing of at least a substantial portion of
the relief claimed in
the main proceedings.
[1]
The
order that I made in terms of Part A has none of these features.
15.
As a general rule,
interdicts granted pending final relief are not Appealable.
Interlocutory orders despite being interim in form
might qualify as
being “
final
in effect
”.
“
Final in
effect
” means
that an issue in the suit had been effected by the order such that
the issue could not be revisited either by the
court of first
instance or the court hearing the Appeal. The order made in respect
of part A has none of these attributes.
16.
In
Cronshaw & Another v Coin Security Group (Pty) Ltd
[2]
Schutz JA stated the position as follows:-
“
From
a practical point of view it seems preferable that the merits of the
interdict be left for final determination at the trial
and that the
interim relief to which the balance of convenience is relevant, be
considered only once. The net effect of a contrary
rule, allowing an
Appeal against the grant of interim orders, could be the undermining
of necessarily imperfect procedure which
is none the less usually
best designed to achieve justice.
”
17.
Counsel for K[....]
contended that the matter should not be postponed and that the Leave
to Appeal application be proceeded with
urgently. He contended that
Mr B[....] had been made aware of the December 2019 Application and
the order issued in consequence
thereof and that Mr B[....] had also
been made well aware of the September 2020 application. In that
regard, on 6 October 2020,
he deposed to a self-standing substantive
affidavit in support of K[....]. Mr B[....]’s affidavit was
attached to K[....]’s
answering affidavit as “AA6 and
AA7”.
18.
Notwithstanding the
fact that Mr B[....] knew of:-
18.1
the December 2019
Application and order;
18.2
the fact that Dr Robyn
Fasser was to be appointed to conduct a full forensic investigation;
18.3
the existence of the
September 2020 Application;
18.4
the nature and effect
thereof and despite having participated in part A of the application
by filing an Affidavit, he took no other
steps whatsoever to
participate in Part A or in the investigation conducted by Dr Fasser.
19.
Counsel for K[....]
argued that Mr B[....] will not be prejudiced by participating only
in Part B of the Application particularly
in light of the fact that
he chose not to participate in Part A. He argued that the tactics
being employed by K[....] and Mr B[....]
are completely contrary to
N[....]’s best interests. Of further concern is the fact that
Advocate Bishop indicated that the
order of 3 November had been
obstructed by K[....] who went to great lengths to impede its
execution by
inter
alia
going into
hiding with N[....]. The crux of his argument was that the
application for postponement by both K[....] and Mr B[....]
was not
bona fide
and
that it is a stratagem to obstruct the operation of the order.
20.
I cannot help but form
the distinct impression that the applications brought by K[....] are
an undisguised attempt to stultify my
order of 3 November 2020. It is
plain that the 3 November 2020 order is interim in nature,
unappealable and that its operation
would not be suspended by an
application for Leave to Appeal (even were Leave to Appeal to have
been granted). The vast majority
of the issues in dispute remain open
for determination in part B of the application which neither party
appears to have taken any
steps to advance.
21.
Given that the
Application for Leave to Appeal must fail, it follows axiomatically
that so to must the Application in terms of
Section 18(2)
and
18
(3)
of the
Superior Courts Act.
>
22.
Mr B[....], now joined
to the application will have an opportunity to deal with the matter
in Part B. The effect of what he seeks
me to order at this stage
(that he file papers in respect of part A and that I essentially
rehear part A) is nothing short of an
appeal of my own order in
respect of part A. I am not persuaded that this is an appropriate
course of action to follow.
23.
K[....] seeks the
appointment of Advocate Rose as a curator ad -litem to represent
N[....] in these proceedings. I was also informed
that Advocate Rose
had interviewed N[....] and that she had filed a report for court
although her appointment had not been court
ordered. Counsel for
K[....] contended that K[....] would agree to Advocate Rose’s
appointment but only for the application
for leave to appeal and not
thereafter. Furthermore, the issue of payment of the
curator
ad litem’s
fees
and the powers to be furnished to the curator ad litem are also in
dispute.
24.
There is no reason why
this issue should be dealt with in this court (being a court sitting
for the limited purpose of hearing an
application for Leave to
Appeal). This court is
functus
officio
other than
in respect of the question of Leave to Appeal. My acting appointment
is at an end and it is accordingly beyond my competence
to grant this
order. In any event, there are clear disputes between the parties,
the filing of papers is not yet complete and there
is every reason
for the parties to refer the determination of this matter to the
ordinary motion court if they are unable to come
to terms. I do not
intend to make any order in respect of the appointment of the
curator
ad litem
.
In the circumstances
I make the following order: -
1.
Mr B[....] is, by
agreement between the parties, joined to the main Application as the
Second Respondent.
2.
The Application for
Leave to Appeal is dismissed with costs.
3.
The Application in
terms of
Section 18
(2) and (3) of the superior Courts Act is
dismissed with costs.
SEGAL AJ
Acting Judge of the
High Court: Gauteng Local Division Johannesburg
Date
of hearing:
18/11/2020
Date
of delivery:
02/12/2020
Counsel
for the Applicant:
K
Meyer
Instructed
by:
Louis
and Associates
Email
address:
kevinl@louisttorneys.com
Tel:
011 023
9690
Counsel
for the Respondent/s:
Ms N Rambachan-Naidoo
Instructed
by:
Nelson Borman and Partners Inc
Email
address:
johan@nelsonborman.co.za
Tel:
011 886
3675
[1]
Cipla
Agrimed (Pty) Ltd v Merk Sharp Dohme Corporation
2018 (6) SA 440
SCA
and Zweni v Minister of Law and Order 1993 (1) SA 523 (A)
[2]
[1996] ZASCA 38
;
1996 (3) SA 686
(A)