C.N v I.G.R (D6383/2024) [2025] ZAKZDHC 68 (28 October 2025)

Case Note

C[...] N[...] v I[...] G[...] R[...]
Case No: D6383/2024
High Court of South Africa, KwaZulu-Natal Local Division, Durban
Date Delivered: 28 October 2025

Reportability

This case is reportable due to the significant legal questions surrounding child custody, parental rights and obligations, and the implications of alleged abuse in the context of access arrangements for a minor. The proceedings involved serious allegations of sexual abuse against the respondent and considered the interests of the child in relation to the ongoing conflict between divorced parents. The decision of the court highlights the delicate balance that must be maintained in determining access rights and underscores the importance of thorough investigations into allegations of abuse.

Cases Cited

• Room Hire Co. (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) SA 1155 (T)
• National Director of Public Prosecutions v Zuma [2009] ZASCA 1; 2009 (2) SA 277 (SCA)
• P v P [2019] ZAWCHC 174
• D&F Wevell Trust v Minister of Land Affairs and Agriculture [2007] ZASCA 153; 2008 (2) SA 184 (SCA)
• B v S [1995] ZAWCHC 174
• R.M.D v K.D [2023] ZAKZNPHC 2
• Schneider NO and Others v AA and Another 2010 (5) SA 203 (WCC)
• K.O v M.S [2025] ZAGPPHC 192

Legislation Cited

• Children's Act 38 of 2005, section 28

Rules of Court Cited

• Rule 6(5)(g)

HEADNOTE

Summary

This judgment addressed applications related to child custody rights following allegations of sexual abuse made by the applicant against the respondent, who is the child’s parent. The court considered the legitimacy of the allegations while weighing the best interests of the minor child, ZGR, in complying with the Constitutional framework. Ultimately, the court dismissed both the main application and the interlocutory referral to trial and awarded costs against the applicant.

Key Issues

• The credibility of allegations of sexual abuse against the respondent.
• The best interests of the minor child concerning ongoing parental contact.
• Whether disputes of fact should necessitate a referral to trial.
• The role of expert psychological reports in determining evidence.

Held

The court held that the application for the suspension of contact rights with the child was dismissed. The allegations of abuse were not substantiated by reliable evidence, leading to the conclusion that contact should continue. Furthermore, the application for referral to trial was also denied, as the disputes presented did not warrant such a step under the circumstances.

THE FACTS

The parties involved are divorced parents of ZGR, a minor child born on 12 February 2019. The applicant sought to suspend the respondent's contact with ZGR based on serious allegations of sexual abuse. The applicant claimed these allegations were based on ZGR’s disclosures made in July 2023, when she observed the child involved in inappropriate behavior. The applicant asserted that the allegations of abuse stemmed from actions taken by the respondent, whom ZGR identified as "the man in the red hat".

The applicant reported the allegations to the authorities and sought legal intervention to restrict the respondent's contact with ZGR. The respondent contested these allegations, arguing they were fabricated as a form of retaliation stemming from previous legal disputes over access rights. Both parties engaged legal counsel, and the matter proceeded through various litigations, which included a contempt of court application against the applicant for denying the respondent access rights.

Throughout the proceedings, several expert reports were submitted, including those from psychologists and a Family Advocate. Concerns were raised about the child’s welfare, along with recommendations for supervised parenting arrangements and psychological assessments.

THE ISSUES

The court was tasked with addressing several legal questions, including: - Whether a material dispute of fact existed that warranted a referral for oral evidence. - The validity of the allegations of sexual abuse and the implications for the respondent’s access rights. - Determining what arrangements would serve the best interests of ZGR.

ANALYSIS

The court commenced its analysis by evaluating the credibility of the allegations of abuse and the evidence presented by both parties. It referenced the established legal principles on motion proceedings, highlighting the need for the applicant to provide substantial evidence to support claims of serious allegations, especially those involving a child's wellbeing.

Notably, the court scrutinized the various expert reports, giving significant weight to findings that did not support the abuse allegations, including those from the Family Advocate and appointed psychologists. These reports pointed out that the allegations could not be substantiated by reliable evidence, which carried considerable significance in determining the outcome of the access disputes.

Additionally, the court stressed that the best interests of the child were paramount and mandated a judicial investigation into the proceedings. The judgment emphasized the vital nature of protecting the rights of the child and maintaining parental relationships, provided there was no credible risk of harm.

REMEDY

The court dismissed the applicant's application to suspend the respondent’s contact with ZGR and rejected the referral to trial, finding that the allegations of abuse were unsubstantiated. The court ordered the applicant to bear the costs of both the main and interlocutory applications on an ordinary party and party scale, signifying the unfavorable standing of her claims.

LEGAL PRINCIPLES

The case reinforces the following crucial legal principles: - Allegations of abuse, particularly in custody and access contexts, must be substantiated and credible to affect parental rights. - The best interests of the child are the guiding principle in custody disputes. - Courts should act with caution before making decisions that may permanently alter parental rights, ensuring any allegations of misconduct require thorough examination and evidence. - The need for a judicial investigation in cases involving minors, to uphold their rights and ensure their welfare is prioritized.