TT and Another v Minister of Social Development and Others (20/43969) [2023] ZAGPJHC 42 (25 January 2023)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, JOHANNESBURG

CASE NO: 20/43969

DELETE WHICHEVER IS NOT APPLICABLE 1.REPORTABLE: NO 2.OF INTEREST TO OTHER JUDGES: NO 3.REVISED: NO Judge Dippenaar

In the matter between:

TT First Applicant

BM Second Applicant

and

MINISTER OF SOCIAL DEVELOPMENT First Respondent

MEMBER OF THE EXECUTIVE COUNCIL FOR Second Respondent

SOCIAL DEVELOPMENT, GAUTENG

HEAD OF DEPARTMENT, GAUTENG Third Respondent

DEPARTMENT OF SOCIAL DEVELOPMENT

SINAH PHIRI Fourth Respondent

LIVHUWANI MUFAMADI-MALAKA Fifth Respondent

PEARL HLATSHWAKO Sixth Respondent

MEMBER OF THE EXECUTIVE COUNCIL FOR Seventh Respondent

HEALTH, GAUTENG

EVELYN MAHLANGU Eighth Respondent

GOITSEMANG BOTES Ninth Respondent

SOUTH AFRICAN COUNCIL FOR SOCIAL Tenth Respondent

SERVICE PROFESSIONS

MBC Eleventh Respondent

TLC Twelfth Respondent

MT Thirteenth Respondent

BAT Fourteenth Respondent

CENTRE FOR CHILD LAW Amicus Curiae

LEAVE TO APPEAL JUDGMENT

Delivered: This judgement was handed down electronically by circulation to the parties’ legal representatives by e-mail. The date and time for hand-down is deemed to be 10h00 on the 25th of January 2023.

DIPPENAAR J:

[1] The parties will be referred to as in the main proceedings. The first to third respondents, collectively referred to as “the Department” sought leave to appeal against the whole of the judgment and order granted by me on 19 November 2022.

[2] The applicants delivered a notice to oppose the application. The eleventh and twelfth respondents, the prospective adoptive parents of B and L, opposed the application for leave to appeal insofar as it pertained to paragraphs 6 and 7 respectively of the order, which impacts on the finalisation of the adoptions of B and L. The amicus curiae did not participate in the hearing.

[3] My judgment is comprehensive and I stand by the reasons set out therein.

[4] In its application for leave to appeal, the applicants raised various grounds for leave to appeal in support of the contentions that there are reasonable prospects of success that another court would grant a different order as envisaged by s 17(1)(a)(i) of the Superior Courts Act¹ (the “Act”). It was also contended that there are compelling reasons to grant leave to appeal as envisaged by s 17(1)(a)(ii) of the Act.

[5] Leave to appeal may only be granted where a court is of the opinion that the appeal would have a reasonable prospect of success, which prospects are not too remote². An applicant for leave to appeal faces a higher threshold³ than under the repealed Supreme Court Act.⁴ A sound rational basis for the conclusion that there are prospects of success must be shown to exist⁵.

[6] I have considered the papers filed of record and the grounds set out in the applicant’s application for leave to appeal as well as the respective parties’ submissions and arguments for and against the granting of leave to appeal. I have further considered the authorities referred to by the respective parties.

[7] At the hearing the Department formally on record abandoned the application for leave to appeal in respect of paragraphs 1, 2, 3, 4, 5, 6, 7 and 12 of the order. In my view, the approach adopted, was correct. I am in any event not persuaded that the Department established reasonable prospects of success or advanced compelling reasons why leave to appeal these orders should be granted.

[8] At the original hearing of the application, the Department had formally conceded the confidentiality relief contained in paragraphs 1, 2, 3 and 4 of the order. It further gave the express undertaking contained in paragraph 5 of the order.

[9] In relation to the relief granted in paragraphs 6 and 7 of the order, I am not persuaded that the Department would have illustrated reasonable prospects of success. The reasons for the granting of the orders are set out comprehensively in the judgment and it is not necessary to repeat them.

[10] I am further not persuaded that it would have been in the interests of justice or that there are compelling reasons to grant leave to appeal these orders, considering the best interests of the children and the constitutional imperatives of s 28 of the Constitution⁶.

[11] As the judgment had already been provided to the Magistrates in the Children’s Court, any appeal against paragraph 12 of the order has become moot and is of no practical effect.

[12] What is left to be determined is whether leave to appeal should be granted in relation to the orders granted in paragraphs 8, 9, 10, 11 and 13 of the order and the portions of the judgment which relate thereto. The Department persisted in seeking leave to appeal in relation thereto.

[13] Whilst expressly not conceding that there are any reasonable prospects of success on appeal, the applicants adopted a different stance at the hearing pertaining to their opposition of the application, save in relation to the orders granted in paragraphs 6 and 7 of the order, which they opposed. They argued that there were indeed compelling reasons to grant leave to appeal in relation to prayers 8, 9, 10, 11 and 13 in terms of s17(1)(a)(ii) and 17(6) of the Act as. The Department agreed.

[14] Whilst I am not persuaded that the Department has established reasonable prospects of success on appeal, that issue was not fully argued before me, given the stance that was adopted by the parties at the hearing. An application for leave to appeal with limited prospects of success may be granted if there are compelling reasons for doing so.⁷

[15] I conclude that there are compelling reasons to grant leave to appeal the orders granted in paragraphs 8, 9, 10, 11 and 13 as envisaged in s 17(1)(a)(ii) of the Act.

[16] The aforesaid orders raise important constitutional issues relating to the fundamental rights of the applicants and issues of national public importance in relation to the Adoption Guidelines. The interpretation of various statutory provisions of the Children’s Act are further at issue.

[17] Having regard to the provisions of s 17 (6)(a) of the Act, I conclude that the decision sought to be appealed against involves questions of law of importance and that the administration of justice requires consideration by the Supreme Court of Appeal.

[18] There is no reason to deviate from the normal principle that the costs of this application are to be costs in the appeal.

[19] I grant the following order:

[1] Leave to appeal is granted to the Supreme Court of Appeal against paragraphs 8, 9, 10,11 and 13 of the orders granted and the portions of the judgment of 19 November 2022 relating thereto.

[2] The costs of the application are to be costs in the appeal.

_____________________________________

EF DIPPENAAR

JUDGE OF THE HIGH COURT JOHANNESBURG

APPEARANCES

DATE OF HEARING : 24 January 2023

DATE OF JUDGMENT : 25 January 2023

APPLICANTS’ COUNSEL : Adv. M Feinstein

: Adv. N Stein

APPLICANTS’ ATTORNEYS : Womens Legal Centre

1^ST- 3^RD

RESPONDENTS’ COUNSEL : Adv. C Georgiades SC

: Adv. A Mofokeng

: Adv. J Daniels

1^ST - 3^RD

RESPONDENTS’ ATTORNEYS : State Attorney

11^TH & 12^TH RESPONDENTS’ COUNSEL : Adv. L De Wet

11^TH & 12^TH

RESPONDENTS’ ATTORNEYS : Schuler Heerschop Pienaar Attorneys

13^TH & 14^TH

RESPONDENTS COUNSEL : Adv. L. Makapela

13^TH & 14^TH

RESPONDENT ATTORNEYS : Clarks Attorneys