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[2021] ZAGPPHC 86
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TM v CW N.O and Others (Leave to Appeal) (22553/2019) [2021] ZAGPPHC 86 (3 March 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE NO:
22553/2019
3/3/2021
In
the matter between :-
T
M
APPPLICANT
AND
C
W
N.O
FIRST RESPONDENT
N
M D
SECOND RESPONDENT
T
E D
THIRD RESPONDENT
THE
MASTER OF THE HIGH COURT
FOURTH RESPONDENT
JUDGMENT
(APPLICATION FOR LEAVE TO APPEAL)
Kollapen
J
[1]
This is judgment in the application for leave to
appeal against the whole of the judgment and order of this court of
the 16 November
2020. The grounds on which the application is
advanced are fully set out in the application for leave to appeal
filed and dated
the 7 December 2020 and they include that:-
a)
The Court erred in making a factual finding that
the applicant never assumed any parental responsibilities and rights
and did not
contribute in any manner to the raising of M, as to his
maintenance or any other costs involved in his upbringing whilst
there
was a factual dispute on the papers in relation to this.
b)
That the Court erred both in fact and in law in
finding that based upon such factual finding, that the applicant was
accordingly
not M’s parent and did not qualify as a parent in
terms of the Intestate Succession Act 81 of 1987 ("the ISA").
c)
The Court erred in not holding that the word
"parent" in the
Intestate Succession Act is
a reference to
blood relationships.
[2]
The first respondent abides the decision of the Court while the
second and third respondents
oppose the application.
[3]
Section 17(1)
of the
Superior Courts Act 10 of 2013
provides that the
test to be applied in determining whether leave to appeal should be
granted is whether the judge is “of
the opinion that the appeal
would have a reasonable prospect of success or there is some other
compelling reasons why the appeal
should be heard”. The Supreme
Court of Appeal stressed in
S v Smith
2012 (1) SACR 567
(SCA) AT
PAR 7
:
“
What the
test of reasonable prospects of success postulates is dispassionate
decision, based on the facts and the law, that a court
of appeal
could reasonably arrive at a conclusion different to that of the
trial court. In order to succeed, therefore, the
appellant must
convince this court on proper grounds that he has prospects of
success on appeal and that those prospects are not
remote but have a
realistic chance of succeeding. More is required to be established
than that there is a mere possibility of success,
that the case is
arguable on appeal or that the case cannot be categorised as
hopeless. There must, in other words, be a sound,
rational basis for
the conclusion that there are prospects of success on appeal.”
[4]
It is against these principles that the application before this Court
falls to be
considered.
[5]
The applicant has made much of what he has termed a factual dispute
with regard to
whether he assumed parental responsibilities in
respect of the minor child M. In this regard and notwithstanding what
he may say
with regard to his alleged contribution, the reality of
the matter and the legal position is far from being in dispute.
The
applicant did not acquire any parental rights in respect of M in
terms of
Section 21
of the Children’s Act Number 38 of 2005 and
if it could be said that he acquired any rights which in law he could
have acquired,
such rights were terminated in express terms by the
order of this Court of 26 April 2018. That order remains unchallenged
and there
has been no application for the restoration of any such
rights as contemplated in that order.
[6]
Accordingly whatever the applicant may say in advance of the argument
that a factual
dispute exists is academic in the light of the
findings made by this Court on the 26 April 2018 that he held no such
rights. There
is no prospect that another court would come to
different conclusion.
[7]
On the question of the interpretation of the ISA and the insistence
of the applicant
that ‘parent’ much always mean
biological parent, for the reasons given in the main judgment such an
interpretation
would be offensive to both the provisions of the
Constitution and the Children’s Act and it cannot be said that
there is
a reasonable prospect that another court would come to a
different on this issue.
[8]
Finally, the applicant contended that there is a compelling reason
why leave should
be granted as the matter involved the determination
of a novel point. Leaving aside the question of whether novelty
should trigger
the grant of leave, the decision of this Court
involved the application and interpretation of the ISA in the context
of known and
acceptable principles of our law and jurisprudence as
they relate to children and their parents (as defined by the law) and
accordingly
raised nothing new as a matter of law which may require
the granting of leave.
[9]
The application for leave to appeal accordingly falls to be
dismissed.
Order
I
make the following order:
The
application for leave to appeal is dismissed with costs.
NJ.
KOLLAPEN
JUDGE
OF THE HIGH COURT, PRETORIA
APPEARANCES
COUNSEL
FOR THE APPLICANT
:
Adv G DOBIE
Instructed
by
: TWALA
ATTORNEYS
COUNSEL
FOR THE 1
ST
RESPONDENT
: Adv M
VAN ROOYEN
(WATCHING BRIEF)
Instructed
by
: VDT
ATTORNEYS INC.
COUNSEL
FOR THE
2
ND
, 3
RD
RESPONDENT :
Adv F GROBLER SC
Instructed
by
: FRIEDMAN
ATTORNEYS
DATE
OF HEARING
: 18
FEBRUARY 2021
DATE
OF JUDGMENT
: