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2023
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[2023] ZAGPPHC 266
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Mutale v Child Welfare Kempton Park [2023] ZAGPPHC 266; 56490/2021 (6 April 2023)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 56490/2021
1.
REPORTABLE:
NO
/YES
2.
OF INTEREST TO OTHER JUDGES:
NO
/YES
3.
REVISED.
DATE:
06 APRIL 2023
In
the matter of:
CONSTANCE
MUTALE APPLICANT
and
CHILD
WELFARE KEMPTON PARK RESPONDENT
In
Re:
CONSTANCE
MUTALE PLAINTIFF
and
THE
MINISTER OF JUSTICE AND
CONSTITUTIONAL
DEVELOPMENT FIRST
DEFENDANT
MINISTER
OF SOCIAL DEVELOPMENT SECOND
DEFENDANT
CHILD
WELFARE KEMPTON PARK THIRD
DEFENDANT
RULING
ON APPLICATION FOR LEAVE TO APPEAL
A.
Introduction
1.
This is an unopposed application for leave
to appeal the order made by this court on 24 November 2022, refusing
default judgement
against the respondent. The applicant represented
herself during the proceedings of 24 November. She represented
herself during
the proceedings dealing with her application for leave
to appeal.
2.
The applicant says the court erred in
refusing to grant her constitutional damages against the respondent
in the amount of R 2 800
000.
3.
Although
the applicant contends that it is in the interests of justice that
her application be granted, I do not agree that this
is the test. The
test is that set out in
section 17
(1) (a) (i) and (ii) of the
Superior Courts Act 10 of 2013
[1]
.
Based on the applicant’s grounds, there are no prospects
whatsoever that another court would come to a different conclusion.
Thus, the application falls to be dismissed.
4.
For the sake of completion, I set out in
high level, the supposed grounds of appeal as appearing in the
applicant’s heads
of argument. After setting out the background
details of how she was granted judgement in the High Court in
Johannesburg in 2021,
the applicant says:
(i)
Her particulars of claim did set out how the
amount of R 2 800 000 had been quantified;
(ii)
Her ladyship did not understand the court order
granted by the Johannesburg High Court in March 2021;
(iii)
International instruments were not adhered to
during the adoption of her baby at the time; and
(iv)
Her ladyship led evidence ‘
with
Plascon Evans on behalf of the third
respondent and that a lot of prejudice will
accrue to the plaintiff
since the refusal to grant default judgement was mutatis
mutandis absolution from the
instance’.
(v)
Her ladyship did not furnish reasons or indicate
that such reasons will be provided upon her request.
(vi)
That it is in the interests of justice that leave
to appeal be granted.
5.
By way of background, the particulars of
claim annexed to the applicant’s (plaintiff’s) summons
disclose that she had
launched review proceedings through the
Johannesburg High Court to set aside an adoption. In March 2021, an
order was granted,
which she claims set aside the adoption. Following
the grant of the order, the applicant instituted action proceedings
claiming
what she terms constitutional damages against the
defendants.
6.
I refused judgement as the particulars of
claim disclosed no cause of action, alternatively, lacked the
necessary details to support
a cause of action.
B.
Order
7.
The
application for leave to appeal is dismissed with costs.
NN
BAM
JUDGE OF THE HIGH
COURT,
PRETORIA
Appearances:
Applicant:
In person
[1]
Super
Courts Act 10 of 2013.