REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NO : 2024 -142336
DATE : 5 MARCH 2025
In the matter between:
A M D Applicant
and
C D D First Respondent
ACTING MAGI STRATE PIETERSE -KRIEL N O Second Respondent
TANYA KRIEL Third Respondent
ADVOCATE N STRATH ERN N O Fourth Respondent
ADVOCATE ELIZABETH NIEWOUDT N O Fifth Respondent
ADVOCATE KAREN GREEN N O Sixth Respondent
Neutral Citation : D v D and Others (2024/142336 ) [2025] ZAGPJHC --- (5
March 2025)
Coram : Adams J
Heard : 5 March 2025 – ‘virtually’ as a videoconference on Microsoft Teams
Delivered: 5 March 2025 – This judgment was handed down electronically by
circulation to the parties' representatives by email, by being
2
uploaded to CaseLines and by release to SAFLII. The date and time
for hand -down is deemed to be 11:30 on 5 March 2025.
Summary: Application for leave to appeal costs order – s 17(1)(a)(i) of the
Superior Courts Act 10 of 2013 – an applicant now faces a higher and a more
stringent threshold –
Appeals against costs orders – trial judge exercises a ‘true’ discretion – to be
exercised judicially – while a court of appeal has the power to alter a decision as
to costs, it will exercise this power sparingly – before an appeal court will interfere
with an order as to costs it must be satisfied that there has not been a judicial
exercise of the lower court's discretion – appeal court will interfere where the
exercise of the discretion has not been proper or where it was exercised based
upon a wrong principle or upon a wrong view of the facts –
Leave to appeal refused .
3
ORDER
(1) The applicant’s application for leave to appeal is dismissed with costs .
(2) The applicant shall pay the first respondent’s costs of this application for
leave to appeal, including Counsel’s charges on scale ‘B’ of the Tariff
applicable in terms of the Uniform Rules of Court.
JUDGMENT [APPLICATION FOR LEAVE TO APPEAL]
Adams J:
[1]. I shall refer to the parties as referred to in the original urgent application
by the applicant for inter alia an order setting aside an interim order of the
Children’s Court in Randburg. The applicant is the applicant in this application for
leave to appeal and the respondent herein was the first respondent in the urgent
application.
[2]. On 10 December 2024 I handed down an ex-tempore judgment in that
application and granted an order in the following terms:
‘(1) The applicant’s non -compliance with the Uniform Rules of Court relating to time
periods, service and filing is condoned, and the matter is to be heard as one of
urgency in terms of Rule 6(12).
(2) The interim order granted by the second respondent in the Randburg Children’s
Court on 2 December 2024, under Case No 14/1/4/2 -355/2024, be and is hereby
reviewed and set aside.
(3) It be and is hereby declared that the Children’s Court application pending in the
Randburg Magistrate’s Court under Case No 14/1/4/2 -355/24 is void ab initio and
terminated.
(4) It be and is hereby d eclared that the second respondent acted ultra vires by
suspending the applicant’s contact with the children in terms of the existing Rule
43(6) Order of the above Honourable Court, and further in directing overnight
restrictions to such contact contrary to the existing High Court Rule 43(6) order.
4
(5) The applicant’s care and contact rights in accordance with the High Court’s Rule
43(6) order be and are hereby restored.
(6) The applicant and the first respondent shall remain liable, in equal shares, for
payment of the costs and charges to date of this order of the curatrix ad litem (Ms
Strathern) and the social worker (Ms Kriel), including Ms Strathern’s charges in
relation to her appearance at the hearing of the urgent application on 10 December
2024.
(7) Each party shall bear her/his own costs of this urgent application. ’
[3]. The applicant applies for leave to appeal against my above costs order s
as per paragraphs 6 and 7 of the above Order which I granted on 10 December
2024 . The grounds on which the applicant’s application for leave to appeal are
based are the following: (a) T he curatrix ad litem (Advocate Strathern) did not
deliver a notice of intention to oppose the relief claimed by the applicant nor did
she deliver any opposing affidavit; (2) Advocate Strathern uploaded her report
dated 2 December 2024 to CaseLines (absent any request for her to do so) and
delivered a practice note in which she did not indicate that she opposed the relief
sought; and (c) Advocate Strathern attended the virtual hearing on 10 December
2024 and made submissions to the Court in support of a dismissal of the
applicant's application .
[4]. Ms De Wet SC, Counsel for t he applicant , accordingly, submits that I erred
in granting the costs order in paragraph 6 above. I failed to exercise a judicial
discretion, so it is contended on behalf of the applicant, in granting the said costs
order and/or I was influenced by wrong principles and/or my decision could not
have been reasonably reached by a Court properly directing itself to the relevant
facts, circumstances and principles before the Court.
[5]. The applicant also argues that exceptional circumstances exist for the
granting of leave to appeal in that the issue relating to the costs of Advocate
Strathern were not an issue in the application before me. Moreover, so the
argument continues, the appointment of Advocate Strathern was a nullity by
virtue of the fact that the Magistrate's Court lacked jurisdiction to entertain the
5
application and/or lacked jurisdiction to appoint as curatrix ad litem Advocate
Strathern, who, in any event, unsuccessfully made representations to the Court
in opposi tion to the relief claimed by the applicant . The applicant also contend
that I made the Order in circumstances prejudicial to her and she did not have an
opportunity to set out under oath the facts and circumstances in relation to the
appointment of Advocate Strathern . Such facts include a request made to
Advocate Strathern by the applicant's attorney to resign prior to her report dated
2 December 2024 , as well as the fact that the Magistrate's Court had no
jurisdiction to appoint a curator ad litem and no jurisdiction to entertain the
application before it. Furthermore, the costs charged by Advocate Strathern are
not insignificant.
[6]. As for the social worker ( Mrs Kriel) , the applicant contends that she was
appointed by the Learned Children’s Court Magistrate and s he did not deliver a
notice of intention to oppose the relief claimed by the applicant nor did she deliver
any opposing affidavit. The issue of the costs of Mrs Kriel was, so the applicant
contends, also not an issue in the application before me and the costs order was
likewise made in circumstances prejudicial to the applicant who had no
opportunity to set out under oath the f acts and circumstances in regard to the
appointment of Mrs Kriel and her mandate. The appointment of Mrs Kriel , so the
applicant contends, was also a nullity by virtue of the fact that the Magistrate's
Court lacked jurisdiction to entertain the application and/or lacked jurisdiction to
appoint Mrs Kriel.
[7]. The applicant therefore contend s that I should accordingly not have made
the Order in paragraph 6 of the Order.
[8]. As for the order made in paragraph 7 of the Court Order, the applicant
contends that I erred in the exercise of my discretion in relation to costs and that
I did not exercise my discretion judicially but that I was influenced by wrong
principles . My costs order, so the contention goes, is not a decision that ` could
reasonably have been reached by a Court properly directing itself to the relevant
circumstances, facts and principles. Those grounds , according to the applicant,
6
include the following exceptional circumstances: (a) the applicant did not seek an
order for costs against any of the respondents (including the first respondent)
save in the event of opposition; and (b) the first respondent opposed the
application and h is opposition was without any merit. The relief claimed by her,
so the applicant submits, should have been conceded by the first respondent both
in respect of urgency and on the merits. Instead, the first respondent sought an
order striking the applica tion from the roll for lack of urgency , alternatively , an
order dismissing the application together with a punitive order for costs against
the applicant .
[9]. The applicant also contend s that the first respondent's opposition was
frivolous and the relief claimed by the applicant should have been conceded by
him. In any event, so the applicant’s argument is concluded, she was successful
in her urgent application and she ought to have been awarded the costs as the
successful party.
[10]. On the other hand, Ms Bedeker, who appeared on behalf of the first
respondent , submitted that the application for leave to appeal should be
dismissed as the court a quo , in granting the impugned costs orders 6 and 7 ,
exercised a ‘true’ or ‘narrow’ discretion, which it did judicially. I did not err, so the
contention on behalf of the first respondent goes, as, in the exercise of my
discretion, I ordered costs ‘ in a fair, just and reasonable manner taking into
account the undisputed facts of the application ’. According to the first respondent,
I had correctly adopted the view that the curatrix ad litem (fourth respondent) and
the social worker (Mrs Kriel), having been appointed by the Children’s Court, are
entitled to their fees and charges as a result of their appointment by the Children’s
Court.
[11]. I find myself in agreement with these contentions by Ms Bedeker . In the
exercise of my discretion, I had regard to the fact that neither of the parties can
be said to have been responsible for the sequence of events which followed after
the applicant initiated the proceedings in the Children’s Court in terms of section
150 of the Children’s Act. What weighed heavily on my mind is the fact the
7
applicant herself initiated the proceedings, which ultimately culminated in the
interim order granted by the Children’s Court on 2 December 2024.
[12]. The traditional test in deciding whether leave to appeal should be granted
was whether there is a reasonable prospect that another court may come to a
different conclusion to that reached by me in my judgment. This approach has
now been codified in s 17(1)(a)(i) of the Superior Courts Act 10 of 2013, which
came into operation on the 23rd of August 2013, and which provides that 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’.
[13]. In Ramakatsa and Others v African National Congress and Another1, the
SCA held that the test of reasonable prospects of success postulates a
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. These
prospects of success must not be remote, but there must exist a reasonable
chance of succeeding. An applicant who applies for leave to appeal must show
that there is a sound and rational basis for the conclusion that there are prospects
of success.
[14]. The ratio in Ramakatsa simply followed S v Smith 2012 (1) SACR 567
(SCA), [2011] ZASCA 15, in which Plasket AJA (Cloete JA and Maya JA
concurring), held as follows at para 7:
‘What the test of reasonable prospects of success postulates is a dispassionate decision,
based on the facts and the law that the 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
1 Ramakatsa and Others v African National Congress and Another (724/2019) [2021] ZASCA 31 (31 March
2021);
8
must, in other words, be a sound, rational basis for the conclusion that there are
prospects of success on appeal.’
[15]. In Mont Chevaux Trust v Tina Goosen2, the Land Claims Court held (in an
obiter dictum ) that the wording of this subsection raised the bar of the test that
now has to be applied to the merits of the proposed appeal before leave should
be granted. I agree with that view, which has also now been endorsed by the
SCA in an unreported judgment i n Notshokovu v S3. In that matter the SCA
remarked that an appellant now faces a higher and a more stringent threshold, in
terms of the Superior Court Act 10 of 2013 compared to that under the provisions
of the repealed Supreme Court Act 59 of 1959. The applicable legal pr inciple as
enunciated in Mont Chevaux has also now been endorsed by the Full Court of
the Gauteng Division of the High Court in Pretoria in Acting National Director of
Public Prosecutions and Others v Democratic Alliance in Re: Democratic Alliance
v Acting National Director of Public Prosecutions and Others4.
[16]. I am not persuaded that the issues raised by the applicant in her
application for leave to appeal are issues in respect of which another court is
likely to reach conclusions different to those reached by me. The simple point
about this application for leave to appeal is that, while a court of appeal has the
power to alter a decision as to costs, it will exercise this power sparingly. Before
a court of appeal will interfere with an order as to costs , it must be satisfied that
there has not been a judicial exercise of the a quo court's discretion.5 The court
on appeal will interfere where the exercise of the discretion has not been proper6,
or has been based upon a wrong principle or upon a wrong view of the facts .
2 Mont Chevaux Trust v Tina Goosen, LCC 14R/2014 (unreported).
3 Notshokovu v S, case no: 157/2015 [2016] ZASCA 112 (7 September 2016).
4 Acting National Director of Public Prosecutions and Others v Democratic Alliance In Re: Democratic
Alliance v Acting National Director of Public Prosecutions and Others (19577/09) [2016] ZAGPPHC 489
(24 June 2016).
5 Merber v Merber 1948 (1) SA 446 (A) .
6 Kruger v Le Roux 1987 (1) SA 866 (A) at 871F -G.
9
[17]. In my view, and having regard to the foregoing principles, it cannot be said
with any conviction that I had not exercised my discretion judiciously or that there
has been an improper exercise of judicial discretion, that being a vitiating of the
award of costs by irregularity or misdirection, or that the costs award was
disquietingly inappropriate.
[18]. In National Coalition for Gay and Lesbian Equality and Others v Minister
of Home Affairs and Others7, the Constitutional Court held as follows: -
‘A Court of appeal is not entitled to set aside the decision of a lower court granting or
refusing a postponement in the exercise of its discretion merely because the Court of
appeal would itself, on the facts of the matter before the lower court, have come to a
different conclusion; it may interfere only when it appears that the lower court had not
exercised its discretion judicially, or t hat it had been influenced by wrong principles or a
misdirection on the facts, or that it had reached a decision which in the result could not
reasonably have been made by a court properly directing itself to all the rel evant facts
and principles.'
[19]. Applying the foregoing principles to this application for leave to appeal, I
conclude that there are no reasonable prospects of another court coming to legal
conclusions in relation to the costs order at variance with the order I granted in
relation to costs . The appeal, therefore, in my view, does not have a reasonable
prospect of success.
[20]. Leave to appeal should therefore be refused .
Order
[21]. In the circumstances, the following order is made:
(1) The applicant’s application for leave to appeal is dismissed with costs.
7 National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others 2000
(2) SA 1 (CC) .
10
(2) The applicant shall pay the first respondent’s costs of this application for
leave to appeal, including Counsel’s charges on scale ‘B’ of the Tariff
applicable in terms of the Uniform Rules of Court.
______________________ ______
L R ADAMS
Judge of the High Court
Gauteng Division, Johannesburg
11
HEARD ON: 5 March 2025
JUDGMENT DATE: 5 March 2025 – judgment handed down
electronically
FOR THE APPLICANT : A De Wet SC
INSTRUCTED BY: Billy Gundelfinger Attorneys,
Melrose Arch, Johannesburg
FOR THE FIRST RESPONDENT: L Bedeker
INSTRUCTED BY: Van Zyl Johnson Incorporated,
Woodmead, Sandton
CURATRIX AD LITEM: N Strathern