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,
FREE STATE DIVISION, BLOEMFONTEIN
Reportable:                              YES/NO
Of Interest to other Judges:   YES/NO
Circulate to Magistrates:        YES/NO	

Case number: 1548/2020

In the matter between: 

M B 	         	 								        Applicant

and
 
R B 	    									    Respondent 

JUDGMENT BY:                         MHLAMBI J,

HEARD ON: Matter disposed of without oral hearing in terms of section        19(a) of the Superior Court Act 10 of 2013.	 		       

DELIEVERED ON: This judgment was handed down electronically by circulation to the parties’ legal representatives by email and release to SAFLI. The date and time for hand-down is deemed to have been 9h30 on 10 September 2020. 

APPLICATION FOR LEAVE TO APPEAL

MHLAMBI, J

[1]	The applicant applied for leave to appeal against the whole of the judgment and order I granted on 12 May 2020 in terms of which the application was dismissed with costs. The application is opposed. 

[2]	Applications for leave to appeal are governed by section 16 and 17 of the Superior Courts Act 10 of 2013. Section 17 makes provision for leave to appeal to be granted where the presiding judge is of the opinion that, either the appeal would have a reasonable prospect of success or there is some other compelling reason why the appeal should be heard, including whether or not there are conflicting judgments on the matter under consideration.

[3]	The applicant contended that the appeal has reasonable prospects of success and the application for leave to appeal was therefore premised on section 17(1)(a)(i) of the Superior Courts Act. The application is premised on nine grounds of appeal in which it is alleged that I erred in one or more of the following respects:
3.1	Failing to adhere to the stare decisis principle by not adjudicating the application in accordance with the principles contained in the judgment of the Free State High Court in Van Tonder vs. Van Tonder; 

3.2	Failed to place sufficient emphasis on the fact that the courts normally frowned upon a party who took the law into his/or her own hands and that a litigant should not be allowed to take the law into his/or her own hands;

3.3	Failed to adopt a robust approach towards any procedural constraints and to call for any further evidence which might have been required in order to exercise the discretion as an upper guardian;

3.4	Failed to place sufficient emphasis on the wider context in which the dispute was situated in that since September 2018 the de facto possession was that the minor child resided with the applicant and that this possession was unilaterally amended when the respondent refused to return the minor child to the applicant. The purpose of the relief sought was merely to restore the status quo until the Rule 58 application was finalised. 

3.5	Failed to place enough emphasis on the findings, conclusions and recommendations of Mrs Campbell (the occupational therapist) whose professional opinion was that the minor child’s emotional, overall development and functioning would regress if the status quo was not restored. 

3.6 	By accepting the allegations advanced by the respondent and concluding that it would be in the best interests of the child to reside at Klerksdorp notwithstanding the recommendations of Mrs Campbell. 

3.7	By attaching too much weight to the averments contained in the opposing affidavit and by drawing a negative inference from the applicant’s failure to file a substantial replying affidavit. By doing so the court neglected to keep in mind that the purpose of the current proceedings were not aimed at resolving those factual disputes while it was virtually impossible for the applicant to obtain further reports in order to rebut the conclusions contained in the reports appended to the opposing affidavit, considering that the applicant could not obtain any further experts reports regarding the best interests of the minor child seeing that the minor child was in Klerksdorp since March 2020 and the lock-down regulations made this virtually impossible;

3.8	By not excising it discretion in a correct and judicial manner;

3.9	By dismissing the application with costs. 

[4]	Section 17 of the Superior Courts Act 10 of 2013 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.

[5]	Section 16(2)(a)(i) provides that when at the hearing of an appeal, the issues are of such a nature that the decision sought will be of no practical effect or result, the appeal may be dismissed on this ground alone. 

[6] 	Before traversing the grounds as well as the heads of argument, I pause to mention that it would appear that, after the applicant delivered her application for leave to appeal against the judgment on 22 May 2020, both the applicant and the respondent reached an agreement on 24 July 2020 regarding the primary care and residence of the minor child, pending the finalisation of the part-heard Rule 58 application in the Regional court. 

[7]	In his heads of argument, the applicant’s counsel included a sub-heading styled “The interpretation of the judgment” in which the following was recorded:
“5.1	As mentioned above the purpose of the relief sought by the applicant was never aimed at circumventing and/or to replace the Rule 58 proceedings, but rather to restore the status quo pending the finalisation of the Rule 58 application in Regional court. 

5.2	In his Provisional Counterclaim, the respondent also requested the Honourable Court to grant an order in terms of which the primary place of residence of the minor chid is awarded to him “pending judgment in the application in terms of Rule 58 of the Magistrates court Rules between the above parties in the Regional court of Klerksdorp”.

5.3	In other words irrespective of whether the relief sought in the Notice of Motion or in the Provisional Counter Application was granted, both parties contemplated that the order so obtained would have been of an interim nature pending the finalisation of the Rule 58 application in the Regional court.

5.4	The honourable court concluded, however, that ‘… it would therefore not be in his best interest that he should be removed from such an environment until the pending dispute between the parties has been finalised’, while no order was granted in terms of the provisional counter application.”

[8]	It was submitted that the use of words “pending dispute” in paragraph 23 of the judgment were unclear and led to uncertainty which had its genesis in the pending divorce action between the parties and a pending Rule 58 application between the  same parties in the Regional court. As the parties were involved in a Rule 58 application and two High Court applications, this gave rise to an ambiguity which would lead to a further dispute. 

[9]	As correctly pointed out by the respondent’s counsel in his heads of argument, the allegation of “ambiguity” is therefore contrived and opportunistic. A referral by counsel to paragraph 23 is selective and indeed opportunistic. Paragraphs 24 and 25 of the judgment read as follows:

“24.	Having considered the papers and the applicant’s conduct I get the impression that she was dissatisfied with the process before the Regional Court, and tried to circumvent the Rule 58 proceedings, thereby delaying the finalisation thereof. The earlier the parties realise that they must have the minor child’s best interests at heart, the sooner will they insure the finalisation and resolution of the matter pending between them. 

25.	In conclusion, I find that this application should be dismissed on the basis that the applicant failed to show that it would be in the best interests of the minor child should an order be granted as prayed for. In light of the above she should pay the respondent’s costs.” The application was therefore dismissed with costs.

[10]	The main thrust of the applicant’s argument for leave to appeal is based entirely on the decision of Van Tonder vs. Van Tonder, a decision (as correctly pointed out by the respondent’s counsel), predated the peremptory provisions of section 7, 9 and 23 of the Children’s Act and in which case the best interest of the minor child had seemingly either not been in dispute, or not being considered, and which was ostensibly primary concerned with jurisdiction. it is therefore incorrect to suggest that this matter was not adjudicated in accordance with the principles contained in the judgment of Van Tonder vs. Van Tonder as it is stated in paragraph 13 of the judgment that “similarly, and in the light of Van Tonder, supra, the decision of the North West High Court and the provisions of the Children’s Act, the preliminary point relating to the lack of jurisdiction in respect of territory and subject matter are without merit and should be dismissed”. The Van Tonder decision was applicable to a point in the matter under consideration and it is trite that each and every case is decided on its own merits. 

[11]	The second, third, fourth, fifth, sixth and seventh grounds have been traversed in my judgment and, save for some observations, they will not be dealt with in depth. The applicant approached the court on an urgent basis, its case based on, inter alia, section 23 of the Children’s Act which required the court to consider the best interests of the minor child. The applicant failed to make out a case that, pending the finalisation of the Rule 58 application, the minor child’s best interests would, in the circumstances as set out in the papers, be served by uprooting the child from his siblings and father. Much hue and cry was made of my having attached weight to the averments contained in the opposing affidavit and by drawing a negative inference from the applicant’s failure to file a “substantial replying affidavit”. Surely the applicant, in approaching the court with the haste that she did, should have appreciated that the court would consider that the child’s best interests are of paramount importance in every matter concerning the child.

[12]	It is significant to note that in the applicant’s heads of argument, the following is stated:
“4
The second ground: The dispute of facts and the merits of the two versions advanced:

4.1	It is indeed correct that the best interest of the minor child is of paramount importance and the Constitutional Court concluded that the interests of minor children should not be held ransom for the sake of legal rules and procedures while the best interests of the minor children should not mechanically be sacrificed on the altar of jurisdictional formalism. (My emphasis).

4.2	It is a trite principle of our law that “once a court has been persuaded to invoke its powers as upper guardian, it will generally adopt a robust approach towards procedural constraints” and that the honourable court has extremely wide powers to act in the best interest of minor children. As such the honourable court is not bound by procedural strictures, the normal Law of Evidence, the limitation of evidence presented by the parties, the contentions advanced by the respective parties in their papers in that the honourable court may have recourse to any information, of whatever nature, which may assist the honourable court in resolving the dispute. (Footnotes omitted).

[13]	It is evident from the above that, despite the counsel’s dogged adherence to the Van Tonder case, he acknowledged the constitutional jurisprudence and the importance of the concept of the best interests of the minor child. It is significant to note that nowhere in his argument does the applicant’s counsel challenge the correctness of the order based on the finding of the child’s best interest principle.  The applicant refused to address the extensive allegations in the opposing affidavit and expects the court to consider the desirability of hearing oral evidence and that the court should be dissuaded from applying the Plascon- Evans rule. 

[14]	As regards the eighth ground of appeal, it is not clear in which manner was the discretion not exercised in a correct and judicial manner. I find the following words by Murphy, J in Cunningham vs. Pretorius,  as raised in the respondent’s heads of argument, appropriate in respect of the judicial discretion to be exercised when decisions pertaining to the best interests of the children are to be made, that one has to have an overall impression and bring a fair mind to the facts set out by the parties. “The relevant facts, opinions and circumstances must be assessed in a balanced fashion and the Court must render a finding of mixed fact and opinion, in the final analysis a structured value judgment, about what it considers will be in the best interests of the minor child”. The aspect as to costs speaks for itself. It is trite that the successful party is entitled to the costs. 

[15]	As indicated above a consent order was made by the Klerksdorp Regional court on 24 July 2020 and provided as follows:
	“Whereas the legal representatives on behalf of the applicant and the respondent had been heard on 24 July 2020 the honourable court orders as follows:
1.	That, pendente lite the finalisation of the Rule 58 application: 
1.1	The primary residence, custody and control in respect of the minor child C B, born on […] 2012 and R B born on […] 2004 (hereafter jointly referred to as the “minor children”) shall vest with the respondent;

1.2	The applicant may take the minor children with her on every alternative weekend from Friday at 16h00 until the following Monday 8h00;

1.3	The applicant may take the minor children with her every alternative school holiday subject thereto that long school holidays be divided equally between the parties; and 

1.4	The applicant shall enjoy reasonable telephonic contact with the minor children, which includes video contact. 

2.	The costs of the interim order shall be costs in the main application.”

[16]	It follows therefore that the case is moot and therefore not justiciable as it no longer presents an existing or live controversy.  The settlement reached between the parties on 24 July 2020 and made an order of court disposed of the lis between the parties. There is therefore no issue to be decided on appeal. The application for leave to appeal should therefore be dismissed on this ground alone. 
[17]	I am convinced that on the merits there are no reasonable prospects that the appeal would succeed and that the application stands to be dismissed on this ground also. 

[18]	I therefore make the following order:

Order:
The application for leave to appeal is dismissed with costs.              	     

_______________
JJ MHLAMBI, J

Counsel for Plaintiff:             Adv. Jac   Coetzer
Instructed by: 			        Honey Attorneys
			        Honey Chambers
			        Northridge Mall
			        Kenneth Kaunda Road
			        Bloemfontein

Counsel for 1st Defendant:    Adv. MG Hitge      	
Instructed by: 			         Phatshoane Henney Attorneys
				35 Markgraaff Street 
				Bloemfontein