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In the High Court of South Africa
(Western Cape Division, Cape Town)
Case No: 3358/2024
In the matter between:
DR Applicant
and
N M First Respondent
R L Second Respondent
Heard: 15 May 2024
Delivered electronically on 07 June 2024
JUDGMENT ON LEAVE TO APPEAL
LEKHULENI J
Introduction
[1] For the sake of convenience, the parties are cited as in the main application.
This is an application for leave to appeal launched by the first respondent to the full
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bench of the Western Cape High Court against part of the judgment of th is court,
which was delivered on 05 March 2024. In that judgment, this court ordered that the
office of th e family advocate be directed to conduct a care and contact assessment
with respect to the minor children to determine their best interests . The first
respondent wants to challenge this order and seeks leave to appeal against it . The
second respondent did not formally file an application for leave to appeal but , in
substance, aligns and supports the first respondent’s application.
Grounds of Appeal
[2] The grounds for leave to appeal asserted by the first respondent s are that this
court erred in ordering a care assessment by the office of the family advocate in
circumstances where the applicant had not sought such an assessment and had
withdrawn the application for a care assessment in respect of the minor children prior
to the hearing of the application. Secondly, the respondents assert that this court had
not found on the facts that a care assessment was required ; alternatively, the
applicant had failed to establish that such care assessment was required.
Facts germane to this Application
[3] To give context to this application and to th e order I make herein below, it is
necessary to briefly set out the facts which are dealt with in detail in th e main
judgment. The first respondent who seeks leave to appeal is a biological father of
two minors (WML and LM) and their primary carer. The first respondent is married to
the applicant in terms of th e Civil Union Act 17 of 2006 (‘the Civil Union Act’) . Their
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marriage is still in subsistence. The first respondent was previously married to the
second respondent in terms of the Civil Union Act, and their marriage was dissolved
by this court on 13 November 2020. A minor child , (WML) was born between them
through a surrogate motherhood agreement , and th e said child is currently in th e
care of the first respondent. The applicant and th e first respondent have been living
together, and their marriage broke down. Before they got married, the first
respondent had another child (LM) through a surrogate motherhood agreement. At
the hearing of the main application, the applicant and the first respondent were
separated.
[4] On 19 February 2024, the applicant brought an urgent application in which he
sought primary care of the two m inor children (WML and LM) in terms of section
23(1)(b) of the Children's Act 38 of 2005 (‘the Children’s Act’) . The application was
divided into two parts , Part A and Part B . In Part A, the applicant sought an order
that, pending the final determination of the relief sought in Part B, he shall be
awarded the primary care of two minor children, namely, WML, a girl born on 09
October 2018 and LM a boy born on 12 April 2022 in terms of section 23(1)(b) of the
Children's Act . The said minor children are currently in th e care of the first
respondent. In addition, the applicant sought an order that the minor children be
returned to him forthwith and that the first respondent is to have contact with the
minor children on Wednesday s and Friday s, from after school until 17h30 and on
Sundays from 09h00 to 17h30.
[5] The applicant also sought an order that the contact referred to hereinabove ,
be supervised and that the supervision should be conducted by a registered social
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worker in the employ of Child Assist; the cost associated therewith was to be shared
by the applicant and the first respondent. The applicant also implored this court to
direct that Leigh Pettigrew , a n educational psychologist be appointed to urgently
conduct a care and contact assessment and compile a report setting out her findings
and recommendations regarding future care and contact arrangements between the
parties and the minor children that would be in the best interest of the children.
[6] In the alternative to the above, the applicant sought an order that he be
awarded reasonable contact to the two minor children as envisaged in section
23(1)(a) of the Children's Act every Tuesday from after school until 08h00 on
Wednesday and every alternate weekend from after school on Friday until 08h00 on
Monday. In Part B, which was not before me, the applicant see ks an order to
implement Ms Pettigrew's recommendations pursuant to her assessment. This court
was only enjoined in considering Part A of the applicant's application.
[7] The respondents opposed the application ; however, at the hearing of th e
matter on 23 February 2024, the court was informed that the applicant was no longer
seeking the care of the minor children but instead, access to the minor children as
prayed for in the alternative. Mr Pincus SC, the applicant’s Counsel , informed the
court that the applicant s ought an order that the application be postponed sine die
and that pending the final determination of the relief sought in Part B, the applicant
shall exercise contact to the minor child LM on every alternative weekend from after
school on Friday until 08h00 on Monday. Regarding the girl, WML, the applicant
requested to contact her on such terms as the first and the second respondent may
agree.
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[8] After hearing argument, the court gave a written judgment on 05 March 2024.
The court made an order, among others, directing two experts to urgently conduct an
assessment and compile a report stating their findings and recommendations
regarding future contact arrangements between th e parties and the minor children
that would be in t he best interest of the minor children. In addition, th e court ordered
the office of the family advocate to investigate care and contact assessment
concerning the minor children and to determine their best interest s. It is the
appointment of the family advocate to investigate the care that the respondents seek
leave to appeal.
Principal Submissions by the parties
[9] At the hearing of the application for leave to appeal, both Ms Gassner SC and
Ms McCurdie SC submitted that this court erred in not confining the family
advocate’s assessment to contact assessment in line with th e scope of th e
assessment th e psychologist experts were asked to conduct and broadening th e
scope of th e family advocate’s enquiry to include a care assessment. Ms Gassner
SC particularly submitted that there is a reasonable prospect that the appeal court
will hold that this court erred in broadening the scope of the family advocate ’s
assessment to include care in that : first, at the beginning of the hearing of the main
application, the applicant abandoned the relief sought for primary care of the m inor
children and for the assessment to be conducted by the psychologist expe rt to
include care and limited assessment to contact. Without any considered finding
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justifying a care assessment, so the contention proceeded; there was no valid or
rational basis for including the aspect of care in the assessment order.
[10] Secondly, Counsel submitted that inasmuch as the final relief the applicant
may now be granted in terms of Part B, being an implementation of Ms Pettigrew’s
contact recommendation, at best, is rights of contact in respect of the minor children.
Ms Gassner SC further submitted that an order directing the family advocate to
conduct a care assessment was not competent in terms of section 29 (5)(a) as read
with section 29(1) and 23(1)(a) of the Children's Act.
[11] Ms McCurdie SC, on the other hand, submitted that there is no suggestion in
the court’s judgment that any matter pertaining to WML, other than the applicant’s
contact with her, required investigation or consideration either by the experts of the
office of the family advocate. According to M s McCurdie SC, the investigations by
the experts and the family advocate were anticipated to make findings and
recommendations as to whether the applicant should see WLM , not whether he
should care for her. In addition, Counsel contended that as it is the question of
contact that will be considered at the hearing, an assessment by the family advocate
in respect of the question of care would, first ly, extend beyond the purpose of the
hearing, secondly, be superfluous, and thirdly, subject the parties and the children to
unnecessary and unwarranted investigation.
[12] While Mr Pincus SC submitted on behalf of the applicant that in sitting as the
upper guardian of children , this court had a discretion in the n arrow sense, that is, it
could follow a number of available options (equally permissible alternatives), and an
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appeal court will not substitute its view even if it finds it preferable to do s o. Counsel
submitted that when a court sits as upper guardian of a child , it is not obliged to
follow, for example, the parties' wishes or any agreement between them . Mr Pincus
SC further submitted that if this court decided that it was in the children's best
interests that the family advocate investigate the care and contact of the children ,
then that is the end of the matter. No appeal court can or could set aside such an
order. In Counsel’s view, the first respondent’s application for leave to appeal is
accordingly doomed to fail.
Relevant Legal Principles and analysis
[13] Section 17 of the Superior Courts Act 10 of 2013 (‘the Superior Court’s Act’) ,
regulates an application for leave to appeal a decision of a High Court. It provides as
follows:
‘(1) Leave to appeal may only be given where the judge or judges concerned are of
the opinion that—
(a) (i) the appeal would have a reasonable prospect of success; or
(ii) there is some other compelling reason why the appeal should be heard, including
conflicting judgments on the matter under consideration;
(b) the decision sought on appeal does not fall within the ambit of section 16 (2) ( a);
and;
(c) Where the decision sought to be appealed does not dispose of all the issues in
the case, the appeal would lead to a just and prompt resolution of the real issues
between the parties.'
[14] The applicant’s application for leave to appeal is based squarely on section
17(1)(a) of the Superior Courts Act . Unlike the old Supreme Court Act 59 of 1959
(‘the Supreme Court Act’), section 17 of the Superior Courts Act imposes substantive
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law provisions applicable to applications for leave to appeal. In terms of this section,
leave to appeal may only be given if the court is satisfied that (i) the appeal would
have reasonable prospects of success or (ii) there is some other compelling reason
why the appeal should be heard, including conflicting judgments on the matter under
consideration.
[15] Coupled with this discretionary power endowed to a court, the Supreme Court
of Appeal has found that the use of the word ‘would’ in subsection 17(1)(i)(a)
Superior Courts Ac t imposes a more stringent threshold in terms of the Act,
compared to the provisions of the repealed Supreme Court Act. 1 Similarly, i n the
Mount Chevaux Trust [IT2012/28 v Tina Goosen and 18 Others ,2 Bertelsmann J
stated as follows:
“It is clear that the threshold for granting leave to appeal against a judgment of a High
Court has been raised in the new Act. The former test whether leave to appeal
should be granted was a reasonable prospect that another court may come to a
different conclusion. See Van Heerden v Cronwright and Others 1985 (2) SA 342 (T)
at 343H. The use of the word ‘would’ in the new statute indicates a measure of
certainty that another court would differ from the court whose judgment is sought to
be appealed against”.
[16] It is irrefutable that this case revolves around the best interest of the children.
As correctly pointed out by Mr Pincus SC, in sitting as an upper guardian of children ,
this court must consider all relevant considerations , and in reaching its decision , it
exercises its discretion in a narrow sense . Based on the issues raised in the
affidavits of the parties, at the hearing of the main application, this court informed the
1 See S v Notshokovu (157/15) [2016] ZASCA 112 (7 September 2016) at 2.
2 (LCC14R/2014, an unreported judgment from the Land Claims Court).
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parties that it would mero motu engage an expert to investigate th e children's best
interests. Pursuant thereto, the court directed that the office of the family advocate
conducts a care and contact assessment regarding the two minor children.
[17] The argument that there was no case made for th e investigation on care on
the papers cannot be correct. The court ordered the family advocate to investigate
care pursuant to the allegations that have been made in the affidavits of the parties.
Those allegations are dealt with in the main judgment and were succinctly captured
by Mr Pincus SC in his heads of argument. Crucially, the issue relating to the care
and contact of the minor children is palpably unmistakable on the applicant ’s
founding affidavit and the first respondent’s answering affidavit. The entire affidavit of
the applicant is replete with allegations that call into question the capacity of the first
respondent to care for the child ren. The applicant challenged the first respo ndent’s
parenting and mental functioning.
[18] Amongst others, the main judgment specifically indicates that the applicant’s
case was that the first respondent was failing to look after the minor children. The
applicant sought an order that care be awarded to him and that the first respondent
must have contact with the minor children under the supervision of a social worker.
The applicant asserted that the first respondent was unable to take the night shift
with LM as he was taking sleeping pills, and not even a screaming baby would
awaken him. The applicant also asserted that the first respondent’s mental health
declined in December 2022 and that his condition deteriorated, and he was admitted
to a psychiatric ward. The applicant also sta ted that in February 2024, the first
respondent was recently admitted to Ankers House, a rehabilitation facility. The
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applicant took over all the responsibilities of LM and WLM. All these allegations are
specifically dealt with in the main judgment. In response thereto, the first respondent
filed various affidavits refuting the applicant's averments.
[19] The main judgment specifically f ound that the applicant was very hands-on
with both children. The judgment found that the applicant has demonstrated love and
care for both children . Additionally, it was found that the applicant cared for both
children when he came home at night and that he has a strong bond with LM. The
judgment also noted that the applicant cared for LM and WML , and frequently
travelled with them far and wide. That the applicant’s children have a close bond with
LM and WML. The court essentially addressed the disputed issues in the main
judgment between the parties , particularly the applicant’s alternative prayer of
contact. However, in the context of this court's common -law powers to safeguard
the interests of minor children and keeping in mind the constitutional imperative
contained in s ection 28(2) of the Constitution, the court found that an investigation
had to be conducted, which included the two minor children to determine what is in
their best interest.
[20] Notably, t his court couldn’t turn a blind eye to the first respondent’s mental
and parenting ability, which was impugned by the applicant. Hence, it ordered the
family advocate to investigate the care and contact of the minor children. The
investigation by the family advocate was intended to safeguard the best interest of
the two minor children as specified in th e order. In my view, t he fact that the
applicant withdrew his claim for care at the hearing of the main application is n either
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here nor there. The fact that the applicant did not file a replying affidavit to the
answering affidavit to rebut the allegations made therein is also inconsequential.
[21] This court is not constrained or limited by the parties' wishes when it comes to
the children's best interests . In every matter involving minor children , the best
interest of children is paramount. I agree with the views expressed in Kotze v Kotze,3
that the High Court sits as upper guardian in matters involving th e best interests of
child (be it in custody matters or otherwise), and that it has extremely wide powers in
establishing what such best interest s are. It is not bound by procedural str ictures or
by the limitations of the evidence presented or by contentions advanced or not
advanced by the respective parties.
[22] As an upper guardian of all dependent and minor children , this court has an
inalienable right and authority to establish what is in the best interest of the children
and to make corresponding orders to ensure that such interests are effectively
served and safeguarded. No agreement between the parties can encroach on this
authority.4 This principle applies with more force in the present matter. Perhaps it is
important to remind ourselves that the applicant substantively sought care of the
minor children as his primary relief in the present matter . His affidavit specifically
addressed the care of the minor children and called into question the capability of the
first respondent to care for the two children.
[23] I have noted the argument raised by the respondents that an investigation of
the family advocate would be intrusive to the respondents and the children. In my
3 Kotze v Kotze 2003 (3) SA 628 (T) at 630F- I.
4 Girdwood v Girdwood 1995 (4) SA 696 (C) at 708J.
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view, this argument offends the paramountcy of the child’s best interest. In these
specific circumstances, the best interest of the children must take precedence over
the rights of the respondents . I am mindful that the second respondent and th e first
respondent have a parenting plan regarding WLM. In my view, that does not prevent
an investigation by th e office of th e family advocate where one of the parent’s
parenting skills is being challenged. It must be borne in mind that WML is in the care
of the first respondent. The first respondent’s mental and parenting skills have been
impugned.
[24] If the family advocate finds that it is in the best interest of the child, in this
case, WLM, that she be placed in the care of the second respondent , that will be to
the benefit of the child. The question of care and contact is not static. In my view, the
fact that there is a parenting plan between the first respondent and the second
respondent is not cast in stone. The overriding consideration is th e best interest of
the children. For this reason, in the main application, the second respondent filed a
conditional counterapplication seeking the care of WML if the court found that the
first respondent was incapable of caring for the minor child.
[25] As stated in the main judgment, the parenting abilities of the first respondent
have been challenged. In cases involving minors, the child's best interests should
always be the top priority. Therefore, the court has directed the family advocate to
investigate and assess the care and contact of the minor children. The family
advocate's investigation will not grant rights to any of the parties involved, nor will it
take away or revoke any rights. Instead, it will ensure that the best interests of the
minor children are jealously guarded. On a conspectus of all the facts, I believe there
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are no prospects of success in the respondent’s application for leave to appeal. Even
if I err in this regard, to my mind, the order this court granted is in the best interest of
the minor children.
[26] Finally, it is trite law that for an order to be appealable, it must be final in
effect, definitive of the parties’ rights, and dispose of a substantial portion of the relief
claimed. The interest s of justice and the potential for irreparable harm are also
considered.5 I am of the view that the order this court made appointing a family
advocate to conduct a care and contact assessment is interlocutory in nature and not
appealable. As correctly pointed out by Mr Pincus SC, it can hardly be argued that
the relief granted in part A of the applicant's application is not interim in nature. Th e
relief in Part A is intended only to be effective until such time as the investigations by
the relevant experts are completed , and the recommendations are implemented, as
contemplated in Part B of that application. The investigation by the office of the
family advocate is only intended to m ake recommendations to determine what is in
the children's best interest . A final determination of the matter will only arise at the
hearing of Part B of the main application at which time the court will benefit from the
expert’s recommendation. On that score alone , the respondents’ application for
leave to appeal falls to be dismissed.
[27] To top it all, it is in the best interest of the minor children for the family
advocate to conduct a care assessment . Thus, in my view, the paramountcy of the
children's best interest must take precedence over any other right in this case.
5 Tshwane City v Afriforum 2016 (6) SA 279 (CC).
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Order
[28] For all these reasons, the following order is granted.
28.1 The respondents’ application for leave to appeal is dismissed.
28.2 The respondents are ordered to pay the costs of this application jointly and
severally, including the costs occasioned by the employment of two counsels.
__________________________
LEKHULENI JD
JUDGE OF THE HIGH COURT
APPEARANCES
For the Applicant: Mr Pincus SC
Ms McCarthy
Instructed by: Bertus Preller (Maurice Phillips Wisenberg Attorneys)
Email: bertus@mpw.co.za
For the first Respondent: Ms Gassner SC
Ms Bezuidenhout
Instructed by Rael Goodkin (Werksmans Attorneys)
Email: rgootkin@werkmans.com
For the Second Respondent: Ms McCurdie SC
Instructed by: Elana Hannington (Norman Wink Stephens Attorneys)
Email: elana@nwslaw.co.za
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