MEIKLE AJ
Introduction
1. The Respondent applies for leave to appeal against paragraphs 1,2 and 3 of
my order made on 5 February 2025.

2. For ease of reference, I will continue to refer to the parties as I did in my original
reasons for judgment and to the minor child as T.

Grounds for leave to appeal
3. The Respondent advanced various grounds for leave to appeal in his Notice of
Application for Leave to Appeal, in this regard raising four main arguments
against my order in the main, namely that:

3.1 the Applicants prematurely launched this application and should have
first sought to mediate with the Respondent the issue of their contact
with T;

3.2 the Applicants have been untruthful in their approach. It is only the
grandparents who contend that it is in the best interests of T that they
have the extensive contact with the child as ordered. There is no expert
evidence to support this;



3.3 that the existing case law pertaining to contact between grandparents
and children, since the passing of the Children’s Act, does not support
the excessive contact which I have awarded; and

3.4 there is cause for concern that the First Applicant tried to manipulate T,
and that T was afraid that the Applicants want to take her away.

Firstly:
4. I am not persuaded that mediation would have resolved the issues between the
Applicants and the Respondent in a manner which would have satisfactorily
ensured the actual best interests of T as far as contact with her grandparents,
who had played an integra l role in her life since birth, is concerned. There was
no reason for the Applicants not to proceed with this application as and when
they did.

5. In fact, as time progressed, as the relationship between the Applicants and the
Respondent become more acerbic, the contact which T enjoyed with the
Applicants was reduced and thereafter disallowed altogether by the
Respondent because they launched this ap plication. As the primary caregiver,
the Respondent, himself, sought no expert guidance to ensure that his actions
were in the best interests of T.





Secondly:
6. It was argued, inter alia , that Applicants have painted a skew picture when they
say that the contact they are seeking is in the best interests of T. This is their
opinion only. It was argued that they proffered no expert evidence to show this
was the case.

7. The Respondent is T’s primary caregiver. He had more than sufficient
opportunity to enlist the services of an expert to show how his actions in
reducing and thereafter terminating T’s contact with the Applicants were in fact
in the child’s best interests. He could have even approached the Office of the
Family Advocate to conduct an investigation in order to serve the best interests
of T. He did none of this.


Thirdly:
8. I do not agree that the facts in the decisions mentioned on behalf of the
Respondent, as justification to curtail the extent of the contact I have awarded
the Applicant and the contact between children and grandparents in those cited
decisions, can be comp ared to the facts of this matter. T grew up in the home
of her grandparents who had contact with her virtually every day of her life.

9. The contact awarded in my order, I believe is reasonable in the circumstances
and as with any matter concerning children, if circumstances change, there are


a number of avenues for the parties to follow, including approaching a court to
vary the order if circumstances permit.

10. I do not agree that the contact provisions afforded to the Applicants in the order
made by me are excessive, regard being had to T’s welfare and her right to
have this contact with her grandparents. It is the child’s right not her father’s.
There is no evidence before me that this contact is excessive save for the
Respondent’s say -so.

Fourthly:
11. Again, there is no foundation for this complaint of alleged manipulation by the
First Applicant of T, other than the Respondent’s say -so.

12. Surely, if it was the case that T had been so manipulated or that she feared that
the Applicants would take her away, why did the Respondent, who has a legal
duty to protect T, not have these allegations investigated and provided the court
with concrete fa cts and expert evidence that T had been manipulated, how this
manipulation is affecting T and that the Applicant’s contact should be restricted.

13. During argument of this application, the parties were asked whether, since the
granting of my order, T has had any contact with the Applicants. I was advised
that contact has taken place i.e. one weekend a month on a Saturday from 9h00
to 16h00 and a Sunda y from 9h00 to 16h00, with no sleepovers and on other
special occasions.


14. By virtue of the aforesaid, I was not made aware of any detrimental events /
factors with regards to the exercise by the Applicants of this contact with T. As
such, T having had such contact, there is no cogent reason why the contact as
ordered should not be exercised.

15. In my view, and against the background of the facts in the matter, the
application for leave to appeal is made on no bona fide grounds.

16. The prospects of success on appeal must not be remote, but there must exist
a reasonable chance of succeeding, as was held by the Supreme Court of
Appeal. 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
on appeal. In other words, the Court must be conv inced by an applicant on
proper grounds that he has prospects of success on appeal and that those
prospects are not remote, but have a realistic chance if succeeding.1

17. In Dexgroup (Pty) Ltd v Trustco Group International (Pty) Ltd and Others,2
Wallis JA stated that “ a Court should not grant leave to appeal and indeed is
under a duty not to do so where the threshold which warrants such leave has
not been cleared by an applicant in an application for leave to appeal ”.3 “More
is required than a mere possibility of success, or that the case is arguable on
appeal, or that the case cannot be categorised as hopeless ”.4

1 Alf’s Tippers CC V Baloyi and Others (19556/2020)[2023] at [5] with reference to Ramakatsa and Others v
African National Congress and Another (724/29) [2021] ZASCA 31 (31 March 2021).
2 2013 (6) SA 520 (SCA)
3 Alf’s Tippers (note 1 above) at [6] with reference to Dexgroup (note 2 above) at [24]
4 Alf’s Tippers (note 1 above) with reference to S v Smith 2012(1) SACR (SCA)


FOR THE APPLICANT: ADV HB MARAIS SC
ADV T EICHNER
Instructed by SCHICKERLING BOWEN & HESSELINK INC

FOR THE RESPONDENT: ADV H VAN ZYL Instructed by
DOWLING GROBLER ATTORNEYS
DATE OF HEARING: 5 February 2025
DATE OF JUDGMENT : 27 June 202 5