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: 126003/2023
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
DATE: 08 April 2024
SIGNATURE
In the matter between:
F[...] H[...] APPLICANT
And
S[...] F[...] H[...] RESPONDENT
___________________________________________________________________
JUDGMENT-LEAVE TO APPEAL
LESO AJ,
INTRODUCTION
1. This is an application in terms of Rule 49(1)(b) of the Uniform Rules of the High
Court for leave to appeal to the Supreme Court of Appeal alternatively the Full
Court of the High Court against Orders 1,2 and 6 granted by the court on 20
December 2023 and the whole judgment dated 16 February 2024 including order
for costs.
BACKGROUND
2. The Orders made by the Court on 20 December 2023 read as follows:
1. The application is not urgent;
2. The application is dismissed;
3. Adv Chris Maree is appointed to conduct an investigation into the best
interest of the two minor children (the twins) with specific reference to their
relocation to Franschhoek Western Cape Province , their primary place of
residence and the scope and ambit of the applicant right and entitlement to
maintain contact with them;
4. The primary residence of the two minor children (the twins) remains with
the respondent and the applicant is entitled to maintain contact with them
as provided for in the settlement agreement which was made an order of
this court on 06 October 2022;
5. The applicant and the respondent are entitled to set this application down
for hearing after receipt of Adv Chris Maree report and recommendation on
conditions that the parties comply with the provisions of this court practice
directive;
6. The applicant is ordered to pay the costs of this application on the scale
between attorney and client scale.
3. The above order was made pursuant to the ex tempore judgment which was
later transcribed to be reduced to a written judgment on 16 February 2024 . I
will not reprise the reasons for my judgment save to state that the court stands
by the reasons in the ex tempore judgment.
The Orders as per ex tempore judgment of 16 February 2024
1. that the applicant (F[...])shall exercise reasonable contact rights with the
minor children as named in the papers, for physical visitation d uring
every alternate weekends, reasonable telephone calls and videos,
contact or as she deems necessary, with the physical contact to be
exercised within this Court's area of jurisdiction and under the
supervision of the suitable person as agreed to by the parties.
2. Christiaan Johannes Maree the duly independent suitably qualified
person will conduct the investigation relating to the interest of the minor
children including the relocation of the minor children and any other
issues concerning the well -being and interest of the minor children and
compile a report.
3. that the parties may approach this Court on the same papers duly
supplemented if necessary, after having received the report of
Christiaan Johannes Maree or the duly independent suitably qualified
person.
4. The primary residence of the minor children will remain with the
respondent (S[...]).
5. The applicant(F[...]) is to pay the cost on an attorney and client scale.
4. At first glance the latter Order there is no order for dismissal of the urgent
application when Orders 1 and 3 are amplified to read differently from the
initial order.
Grounds for leave to appeal (Court Orders 1,2 and 6)
5. The applicant filed leave to appeal and the supplementary leave to appeal
after receiving a written ex tempore judgment of 16 February 2024 that the
court erred in the following:
5.1 in finding that the application is not urgent after making the ruling during
the argument as follows: ‘I am going to grant condonation. I am satisfied
that a case has been made out and the matter is urgent’;
5.2 in dismissing the application notwithstanding the relief granted in
paragraphs 3,4 and 5 of the order;
5.3 In making an order in terms of which the parties may approach this Court
on the same papers duly supplemented if necessary, after having
received the report of Christiaan Johannes Maree notwithstanding that
the application was dismissed;
5.4 In granting an order in terms of which the applicant should pay the costs
of the application on the scale as between attorney and client, premised
on the fact that the merits of the application have not been canvassed or
dealt with.
Supplementary grounds for leave to appeal are as follows:
6. The applicant raised 10 grounds I will only make reference to the first two
grounds from the 10 grounds raised by the applicant in the supplementary
leave to appeal, the rest I will deal with under discussion later. The applicant's
additional grounds are as follows:
6.1 Leso AJ is functus officio and has no right to recall the order made on 20
December 2023;
6.2 Leso AJ to make the following additional order on Friday, February 2024;
1. The applicant (F[...]) shall exercise reasonable contact rights with the
minor children as named in the papers for physical visitation during
every alternative or alternate weekend, reasonable telephone calls
and videos, contact or as she deems necessary, with the physical
contact to be exercised within this Court's area of jurisdiction and
under the supervision of the suitable person as agreed to by the
parties.
SUBMISSIONS ON LEAVE TO APPEAL
7. In the application the applicant avers firstly, that the court should have found
that the application is urgent hence the order provided for on No. 3, 4 and 5 of
the Court Order and in the event that the application was not urgent, the judge
should have struck the application from the roll with appropriate costs. The
applicant avers secondly, that the dismissal of the application presupposes
that the court dealt with the merits of the application which brings the end to
the application. Lastly, the applicant avers that the Order made by the court is
ambiguous, strange confusing and bad in law. The applicant's counsel went
on to submit that o nce the application is dismissed the court cannot entertain
the application in the future or reconsider the merits of the application in the
future because the court is functus officio.
8. The applicants argued that the court erred in the orders contained in the ex
tempore judgment, to be specific, Order 1 which orders the applicant to
exercise his rights under the supervision and Order 3 which granted parties
leave to approach the court on the same papers duly supplemented if
necessary after having received the report of Christiaan Johannes Maree or
the duly independent suitably qualified person . The applicants and the
Respondent cou nsel submitted that Order was an error because the
applicant's rights to contact were not subject to supervision . The respondent's
counsel further submitted that the respondent , S[...] is aware of the error and
does not intend to enforce Order No.1.
ANALYSIS
9. This application rests mainly on the dismissal of the urgent application as
contained in Orders 1 and 2 of the order granted on 20 December 2023 and
the cost order contained in No. It is clear from the record which the applicant
is in possession of that orders 1 and 2 were a mistake as it is recorded that
the court had in fact made a ruling that the matter was urgent . The applicant
was aware that the application was not dismissed because the first Order was
a draft prepared by the counsel in agreement with the respondent's counsel.
In that Draft Order there was no order for dismissal. The applicant is outright
correct that the subsequent orders could not be made by the court if the court
found that the application was urgent but this is not the case in this matter. he
fact that the applicant insisted that the court ruled that the matter was not
urgent and yet he refers to the finding of the court which indicates that the
matter was not dismissed has no logic. The mistake on the Order was clarified
and corrected in the written judgmen t and the applicant's counsel takes no
issue with such correction, consequently the amended order stands.
10. I now proceed with the applicant's submissions on the ex tempore judgment
dated 16 February 2024 . The applicant took issue with the date on which the
court found that the minor children had relocated as 21 August 2023 instead
of 5 December 2023. The applicant is correct that the court erred on the date
because the evidence was that the intention to relocate was in August suffice
to state this reason on the judgment does not change the form or content of
the Order which is the operative part of the judgment. The is no basis for
appeal on this ground as it was held in SA Eagle Versekeringsmaatskappy
Bpk v Harford1 that ‘an order is what a losing party appeals against because
it is an the operative part of the judgmen t’. On the same theme this court
in Administrator, Cape, and Another v Ntshwaqela and Others 2 declared that
‘there can be an appeal only against a substantive order made by a court, not
against the reasons for judgment ’. This ground cannot stand because the
finding does not change the order nor does it deserve to be before another
court for hearing.
11. the applicant's rights of contact with the minor in order 1 is amplified with the
applicant exercising his rights under the supervision and in order 3 the parties
are granted leave to approach the court ‘on the same papers duly
supplemented if necessary after having received the report of Christiaan
1See SA Eagle Versekeringsmaatskappy Bpk. v Harford [1992] ZASCA 42.
2 See Administrator, Cape, & Another v. Ntshwaqela & Others, 1990(1) SA 705.
Johannes Maree or the duly independent suitably qualified person’. It is on the
basis of the above the applicant tiled a supplementary leave to appeal. It
came out during the submission by counsels that the re was an error in Order
No.1 where the applicants are to exercise ‘physical contact with the minor
children within this Court's area of jurisdiction and under the supervision of the
suitable person as agreed to by the parties’. When one compares the Order of
20 December 2023 and the current judgment there was no order of
supervision of the applicant's physical visitation in the previous order. Counsel
for the applicant conceded that when one compares th e two Orders it shows
that the O rder No. 1 on 16 February 2024 was a patent error because the
issue of supervision was not before this court. I was shocked when the
counsel proceeded to incorrectly submit that the court amended or varied the
court of 20 December 2023 without the party's consent. The applicant avers
that they erred by not complying with Rule 42(1) and (3) of the Uniform Rules
of the High Court by amending or varying or altering it made on 20 December
2024 without the parties' consent and made an order which neither the
applicant nor the respondent applied for and the courts acted irregular and
ultra vires constitutes prospect of success.
12. I note The counsel's submission follows the legal principle that the court has
become functus officio and its jurisdiction in the case having fully and finally
exercised its authority over the subject matter ceases. This general principle
of the common law applicable to the variation of orders of court were
summarised in Firestone South African (Pty) Ltd v Genticuro A.G. 3 In Para 11
the court with reference to Estate Garlick v Commissioner for Inland
Revenue 1934 AD 499 at 502 held that the general, well-established principle
is that ‘once the court has duly pronounced a final judgment or order, it has
itself no authority to set aside or to correct, alter or supplement it…In this case
there are however certain exceptions to general principle ’. In Daniel v
President of the Republic of South Africa and Another 2013 (11) BCLR 1241
(CC), the Constitutional Court stated that ‘rule 42 of the Uniform Rules creates
exceptions to this principle.’
3 See Firestone South Africa (Pty) Ltd v Genticuro A.G. 1977 (4) SA. 298.
13. I will deal later with the variation or alteration of Order No.1 of 16 February
2024 but first deal with exception(s) as found in the applicant submission that
the judgment of 16 February 2024 pre-supposes that the investigations are
not finalised because the judgment reads that ‘ the applicant and the
respondent may approach this Court on the same papers duly supplemented
if necessary, after having received the report of Christiaan Johannes Maree or
the duly independent suitably qualified person to ascertain the best interest of
the minor children concerned for the appropriate relief’ .. Firstly, the
submission by the counsel that the order is incorrect because the report on
the relocation of the minor children is pending and any party can approach the
court should any party wish to challenge such report. Secondly, t he
respondent counsel was correct when she submitted that there is a pending
litigation which the court was made aware of in the urgent application. In the
main application, the applicant contradicts himself that the report is finalized
while during oral submission the order that counsel flaunted in court that he
came up with the draft contained the provision of the report on relocation in
any event, in the judgment the court indicated that it was aware of the pending
litigation between the parties and the parties were merely given leave to
pursue this matter should they wish to do.
14. In Carter v Haworth 4 [2009] ZASCA 19 , the court dealt with the appealability
and non -appealable order where t he proceedings in the trial court were not
finally concluded. In para 10, with reference to Zweni v Minister of Law and
Order; Ndlovu v Santam Ltd [1992] ZASCA 197 ; the court found that an
appealable ‘judgment or order’ as intended by s 20(1) of the Supreme Court
Act 59 of 1959 has three attributes, first, it must be final in effect and not
susceptible to alteration by the court of first instance. Second, it must be
definitive of the rights of the parties in the sense that the person seeking relief
has, for example, been granted definite and distinct relief. Third, the ‘judgment
or order’ must have the effect of disposing of at least a substantial portion of
the relief claimed.
4 Carter v Haworth [2009] ZASCA 19.
15. I am conscious of the fact that t he conflicting order above is prejudicial to the
applicant because it affects the applicant's rights of visitation and contact with
the minor children as inscribed in the report of Adv Maree who recommended
that the ‘ contact enjoyed and specified in the divorce settlement between the
parties be reinstated…and that serious consideration be given to create more
opportunities for the applicant to share quality time with the minor. .’ the order
is not appe allable because I am of the view that the court has not finally
disposed of the matter because no definite and distinct relief as sought by the
applicant was granted unless the parties settle or agree otherwise after the
investigation.
16. The question of whether the court can vary, correct or alter the Orders of
December 2023 and February 2024 where it is found to have erred or made a
mistake. I am of the view that this cou rt has not finalized and therefore is
entitled to correct with ambiguities, errors and omissions found in the ex
tempore judgment. Rule 42 of the Uniform Rules provides for the court to
reconsider its decision because the court is not faultless or infallible. The court
is simply correcting its mistakes without extending its powers or acting u ltra
vires as the applicant suggested. It is in the interest of the proper
administration of justice that the court exercises its powers to correct the
Order.
17. The appeal would not have a reasonable prospect of success despite the
conflicting judgments on the matter under consideration as envisaged in
section 17(1)(a)(ii). The applicant has no automatic right to appeal, he faces a
legal challenge in terms of Section 17(1)(a)(i) or (ii) of the Superior Courts Act
10 of 2013 where leave to appeal may only be given where the judge
concerned is of the opinion that the appeal would have a reasonable prospect
of success, or there is some other compelling reason why it should be heard
including conflicting judgments on the matter under consideration.
18. Unfortunately, in this application, the law has changed and the bar has been
raised for the application to succeed. The test is not as simple as it used to
be, the law on appeal seek assurance than just a probability of a reasonable
success. The applicant prospects cannot be found wanting.
CONCLUSION
19. The purpose of the judgment on 16 February 2024 was to merely reduce the
ex tempore judgment to a word document without any alterations or
amendments. The appeal would not have a reasonable prospect of success
because the court is within its rights and power to correct Order 1 of 16
February 2024 by error by removing the supervision of the applicant’s rights to
read as follows:
Order No. 1 in the ex tempore judgment is amended to read:
‘The applicant ( F[...]) shall exercise reasonable contact rights with the
minor children as named in the papers for physical visitation during
every alternative or alternate weekend, reasonable telephone calls and
videos, contact or as she deems necessary, with the physical contact to
be exercised within this Court's area of jurisdiction’.
20. The amended Court Order of 20 December 2023 is the appropriate Order
granted by the court save for Orders No. 1 and 2.
COSTS
21. The applicant contends that the costs should have been reserved because the
merits are still to be determined. The question that arises from the above facts
is why the applicant filed this application despite him being aware that merits
were dealt with. I do not doubt that this application was motivated by costs
that the applicant envisaged he would recover in the appeal should he
succeed because during the oral submissions by the applicant's counsel, the
court voiced the view on this issue to which the applicant's counsel responded
‘… yes but the cost is not the only reason …’ If one pays attention to this
ground, there is no doubt that the applicant seeks an order to strike off the
application with the view that the costs order would have been reserved. This
finding is on the basis that the applicant proposes that the costs of the
application should be reserved for the final determination after the finalization
of the investigation and recommendation by Adv Chris Maree. It is not clear
what the applicant meant by an appropriate cost order upon dismissal of the
matter.
22. Despite the parties agreeing that the order has a patent error, the animosity
between the counsels was such that they could agree to on a nything that
could have simplified the process . I could not find a sound and rational basis
why the applicant would insist on the appeal while he could simply make the
court aware of the error for the court to correct it. The court did not shy away
from expressing its views on what the court believed was the reason the
application was brought, the costs order which the applicant thinks he will
recover should he succeed in the appeal. because more suspicious when the
applicant insisted on the SCA hearing the appeal. There are various less
costly ways to correct the judgment and the stance taken by the applicant
does not advance the noble cause of justice. The shouting of the name of the
Judge whose name is already on the Order and the conduct of the senior
counsel during both applications was too loud to ignore.
23. It is clear as a daylight that this part in inserted by mistake, there was no need
for the senior counsel theatrical about it. I was not surprised when there was a
confrontation in court between two counsels because the senior counsel
refused to withdraw the defamatory statement against the junior counsel and
continued to mock her accent . In Mkete v Mkutschu 5 the court held that ‘a
successful appellant may be deprived of the costs of appeal or be ordered to
pay the costs of appeal if the appellant's conduct has been mala fide or
malicious’ and in Maharaj v Balesar 6 the court found that ‘the appellant may
be refused the costs of appeal or even be ordered to pay such costs if the
appellant succeeds in obtaining only a minor variation in the form of correction
5 See Mkete v Mkutschu 1915 EDL 170.
6 See Maharaj v Balesar1931 NPD 370.
of a patent error or a very small reduction or a purely technical alteration but
fails on merits’.
24. I was surprised that the applicant started arguments about the interpretation of
sections 31 and 32 of the Children Act on whether consent is only necessary
for the relocation outside the Republic of South Africa and strongly argued
that this appeal should be referred to the SCA for this issue to be resolved as
it had been problematic. The issue here was that the respondent did not
comply with section 31(2) of the Children Act No. 38 of 200 5 because the
respondent had no right or entitlement to remove the minor children from the
court's area of jurisdiction. In the application, the SCA has been his court of
choice. The counsel who represented the applicant is Senior counsel who
during the submission made it a point that remind the court that when he sits
on the bench as the court he does things differently, in this case, his actions
were embarrassing for a person who sat on the bench never mind a senior
counsel.
I NOW MAKE THE FOLLOWING ORDER:
ORDER
1. The application for leave to appeal is dismissed;
2. Applicant to pay the costs of the application.
Leso J (Acting Judge of the
High Court Pretoria)
Date of hearing 04 March 2024
Date of judgment 08 April 2024
For the Applicant
Attorney: Van Der Merwe Attorneys Inc
Contacts: 087 700 3219/072 079 3614
reception@vdmlegal.com
Counsel: F W Botes SC
For the Respondent
Attorney: Strydom & Bredenkamp Inc
Contact: 012 460 1930
henk@lawsb.co.za
Counsel: Adv L Van Der Westhuisen
082 636 9121
This judgment is deposed of electr onically in terms of the Directives of the Judge
President of this Division by transmission of s copy to the parties legal
representatives and by uploading same on Caseline.