D.R.R v S.D.R and Another (8947/2022P) [2025] ZAKZPHC 54 (28 May 2025)

IN
THE HIGH COURT OF SOUTH AFRICA

KWAZULU-NATAL
DIVISION, PIETERMARITZBURG

Case
number: 8947/2022P

In the matter between:

D[…] R[…]
R[…]                                                                                              

[6]            
On
first reading, I was dubious that the consent order was in the best
interests of S and M. I accordingly called for written argument
on
whether I should grant that order. I received the requested written
argument and after considering it and the facts of the matter,
I
delivered judgment on 13 March 2025.[1]
In my judgment, I declined to grant the consent order and found that
the answer to the question framed in paragraph 1.5 of the
court order
of 27 September 2022 was in the negative: the minor children should
not continue to be separated. In my view, the consent
order was not
in the best interests of S and M. I consequently directed that their
primary care be awarded to the first respondent
and that both
children would have their primary place of residence with her. I also
set out the applicant’s rights of contact
with S and M.

[7]            
The applicant, dissatisfied with my order,
seeks leave to appeal against it.

The
Superior Courts Act and the applicable test

[8]            
Section
17(1) of the Superior Courts Act[2]
(the
Act) provides as follows:

‘17(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.’

[9]            
How
that section of the Act should be applied was considered by the
Supreme Court of Appeal in MEC
for Health, Eastern Cape v Mkhita,[3]
with the court commenting as follows:

‘[16]    
Once again it is necessary to say that leave to appeal, especially to
this court, must not be granted
unless there truly is a reasonable
prospect of success.
Section 17(1)(a) of the Superior Courts Act 10 of 2013 makes it
clear 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; or there is some other compelling
reason why it should be heard. 

[17]     
An applicant for leave to appeal must convince the court on proper
grounds that there is a reasonable
prospect or realistic chance of
success on appeal. A mere possibility of success, an arguable case or
one that is not hopeless,
is not enough. There must be a sound,
rational basis to conclude that there is a reasonable prospect of
success on appeal.’

[10]        
In bringing an
application for leave to appeal, an applicant must identify a
material misdirection, or misdirections, on the part
of the judicial
officer whose decision is sought to be appealed against that would
warrant an appeal being allowed. These misdirections,
ordinarily,
will be identified in the applicant’s notice of application for
leave to appeal.

The
applicant’s notice of application for leave to appeal

[11]        
The relief
that the applicant claims in his notice of application for leave to
appeal (the notice) is that he be granted leave to
appeal against:

‘(a)      
That portion of paragraph 1 of the Order which grants primary care of
S to the first respondent;

(b)
      That portion of paragraph 1 of the
Order which directs that S shall have his primary place of
residence
with the first respondent;

(c)       
The orders set out in paragraphs 2, 3, 4, 5, 6 and 7 of the Order.’

[12]        
From this it
is possible to deduce that the applicant contends that the correct
order that ought to have been granted was an order
formally and
permanently separating the two minor children from each other. In
other words, the consent order should have been
granted. It is that
consent order that I found not to be in the best interests of S and
M. The applicant consequently no longer
claims the relief that led to
the matter being referred to oral evidence in the first place.

[13]        
From a close
reading of the applicant’s notice, it seems that he alleges
that I misdirected myself in the following respects:

(a)           
I ought to
have approved of, and granted, the consent order;

(b)           
I ought not to
have granted so-called restricted ‘dialed-back’ contact
between the applicant and M;

(c)           
I ought to
have drawn a negative inference against the first respondent arising
out of the way that she allegedly conducted herself
over the course
of the litigation;

(d)           
I
overemphasized the desirability of siblings being raised together;

(e)           
I erred in
accepting the evidence of the applicant’s principal expert
witness, Ms Main-Baillie (Ms Main-Baillie), that the
applicant had no
real relationship with M; and

(f)             
I
overemphasized the applicant’s history of drug use,
unemployment, and reliance upon his family.

[14]        
Thus, when
considered individually or collectively, the applicant submits that
another court may come to a different conclusion
than the one to
which I came, alternatively, that there are compelling reasons for
leave to appeal to be granted.

[15]        
I briefly
consider each of the grounds of appeal identified in the notice.

The
grounds of appeal

The
consent order

[16]        
As mentioned,
the consent order was not presented on the first day of the hearing
but midway through the last day of hearing. Its
production was
preceded by three days of evidence. The evidence that had been led up
until that point had a common thread to it:
young children, such as
M, should not easily be separated from their primary caregiver, and
siblings should ideally be raised together
where this is at all
possible.

[17]        
There is
nothing magical in these propositions – they simply accord with
common sense. Those propositions were supported both by
Ms
Main-Baillie and the Family Advocate, the latter of which stated
that:

‘Siblings
at this tender age should not be growing apart from one another.’

[18]        
No reason was
advanced by the applicant as to why S should not be permitted to grow
up with his sister. The continued separation
of S and M appeared not
to be a concern to him and was never addressed by him. There appeared
to be no impediment as to why S and
M should not be raised together,
other than the fact that the applicant wanted S with him.

[19]        
The applicant
repeatedly submitted that S was happy in his present surroundings and
should not be uprooted from them. That appeared
to be the only
justification for the position adopted by the applicant. S may well
be happy with things as they now are. But happiness
is not static: it
changes and evolves. Growing up with his sister may bring S a
different form of happiness, and a happiness that
is no less
satisfying. S is now but eight years old and will easily adapt to
life with his sister, who, according to Ms Main-Baillie,
obviously
adores her brother. In my view, this already fractured family should
not be further fractured unnecessarily.

[20]        
The
consent order, in my view, had all the hallmarks of the applicant
trying to avoid a looming order depriving him of the care
of S based
upon the evidence heard. It did not consider what was in the best
interests of S or of M but seemed to be constructed
to best serve the
interests of the applicant. In being confronted with the consent
order I had a duty to consider and evaluate
whether it was in the
best interests of the minor children, and I dispassionately did
so.[4]  I am satisfied that
no other court would find differently in not accepting the consent
order, for no reason of any materiality
was advanced for the
continued separation of S and M.

Dialed-back
contact

[21]        
M was three and a half years old at the
time of the hearing of oral evidence. She had
been separated from the first respondent, and S, for three of those
years. She accordingly had minimal,
intermittent contact with the applicant over the short span of her
life. Ms Main-Baillie found in her
report that:

‘[t]here
is therefore a clear difference in his attachment with S compared
with M.’

[22]        
The Family Advocate
in her report advocated for ‘gradual phased-in contact.’
Ms Main-Baillie, in her report, also made
the following observations:

‘M
is of a tender age, and any change in primary residence will need to
be phased in.’

Ms Main-Baillie went on
to state the following under a heading in her report that read
‘Phased in Contact’:

‘Given
M’s tender age and stage of development, and bearing in mind
that Mrs R has had primary residency of her since birth,
a phased-in
contact approach is recommended over a period of eight weeks…’.

These comments were made
in the context of an assumption that the care of M would be awarded
to the applicant. Why that gradual
introduction should not occur
given the order that I made is not clear to me.

[23]        
The second respondent and Ms Main-Baillie
thus both recommended a gradual reintroduction of the applicant to M.
That is what I have
ordered to minimize any potential distress to M.
It appears unlikely to me that another court would come to a
different view.

The negative
inference

[24]        
I was required to decide this matter based
on the evidence led before me. It is correct that I was involved to
an extent in an earlier
skirmish in the matter when I granted an
order against the first respondent. She complied with that order. I
pointed out in my
judgment that the first respondent was never
cross-examined after she had given her evidence in chief. I am
therefore uncertain
on what basis I was expected to draw the negative
inference urged by the applicant.

Siblings being
raised together

[25]        
I have already mentioned that one of the
common themes of the evidence of all the witnesses that testified,
especially that of the
expert witnesses, was that siblings should be
raised together unless there is an exceptionally good reason why that
should not
happen. The applicant advanced no such reason, other than
the fact that S is presently happy. I considered this issue in some
detail
in my judgment, and to repeat myself will not serve any useful
purpose.

[26]        
However, in this regard, the applicant’s
expert witness, Ms Main-Baillie, stated in her report:

‘It
is generally in children’s best interests to have shared
residency and contact with their parents in separated families.’

[27]        
Parents may choose no longer to have a
relationship with each other, for that is their right. But by
exercising that right they
may not infringe the right of siblings to
grow up with each other. I do not believe that I overemphasized this
fundamental, yet
basic principle.

Acceptance of the
evidence of the applicant’s expert witness

[28]        
I need to spend little time on this ground.
The applicant presented the evidence of his expert witness, Ms
Main-Baillie, in support
of his relief as originally claimed in his
notice of motion. As my judgment reveals, I was not overly impressed
by her as a witness
but accepted that she was correct when she stated
that the applicant did not have much of a relationship with M. Their
continued
separation over virtually the entire length of her life and
the common cause facts pointed to this being the case.

[29]        
In those circumstances, the applicant
cannot now complain that I ought not to have accepted the evidence of
his witness. Ms Main-Baillie’s
evidence was led at the
commencement of the hearing and before the consent order was
produced. If the applicant now contends, as
he appears to do, that
much has changed since Ms Main-Baillie prepared her report, then he
ought to have introduced expert evidence
to that effect. He did not
do so but was content to rely on the evidence of Ms Main-Baillie
notwithstanding that the relief that
he ultimately claimed had
changed substantially.

The applicant’s
drug usage and unemployment

[30]        
It is
submitted that I overemphasized the applicant’s history of drug
use, his unemployment, and his reliance upon his family.
The fact of
the matter is that these are not issues that can be disputed by the
applicant. He has a history of hard drug use and
of relapsing after
receiving treatment, he was unemployed for a considerable period, and
he is only able to cope with the demands
of raising S with the
considerable assistance of his loving and supportive family. These
were facts presented before me, and I
was required to consider them
and weigh them up in formulating my decision. I placed some, but not
undue, weight upon them.

Conclusion

[31]        
I am satisfied that there is no reasonable
prospect of another court coming to a different decision nor do I
perceive there to be
any compelling reason for an appeal to be
allowed. I also do not see an important question of law arising from
the facts of this
case and I cannot therefore share Mr Ender’s
submissions in this regard. The application must accordingly fail.

Costs

[32]        
Having
heard the oral evidence, and after some deliberation, I did not order
costs. I am, however, prepared to grant costs in this
instance as the
application has, in my view, been entirely without merit. As Wallis
JA stated in Dexgroup
(Pty) Ltd v Trustco Group International (Pty) Ltd and others:[5]

‘The
need to obtain leave to appeal is a valuable tool in ensuring that
scarce judicial resources are not spent on appeals that lack
merit.
It should in this case have been deployed by refusing leave to
appeal.’

[33]        
In my view, this application falls within
the type of application contemplated by Wallis JA. Accordingly, it
would be appropriate
to direct that the costs to be awarded against
the applicant be taxed on scale B.

Order

[34]        
I accordingly grant the following order:

The application for leave
to appeal is dismissed with costs, such to be taxed on scale B.

MOSSOP
J

APPEARANCES