K.M.M and Another v T.V.M (Appeal) (HCAA6/2025) [2025] ZALMPPHC 155 (20 August 2025)

Case Note

Case: M[...] M[...] M[...] and K[...] S[...] M[...] v T[...] V[...] M[...] — Not stated
Court: High Court of South Africa Limpopo Division | Judge: Bresler AJ et al Naude-Odendaal J, Pillay AJ | Case no.: HCAA 6/2025
Dates: Hearing — 25 July 2025; Judgment — 20 August 2025

Reportability

Reportable: Yes

Cases Cited

• Girdwood v Girdwood 1995 (4) SA 698 (C) (para [21])
• J v J 2008 (6) SA 30 (C) (para [22])
• Kotze v Kotze 2003 (3) SA 628 (T) (para [17])
• P and Another v P and Another 2002 (6) SA 105 (N) (para [23])
• AD and OD v OW and Others (Centre for Child Law as Amicus Curiae; Department for Social Development as Intervening Party) 2008 (3) SA 183 (CC) (para [24])
• R.C v H.S.C 2023 (4) SA 231 (GJ) (para [23])
• LH and Another v LA 2012 (6) SA 41 (ECG) (para [26])

Legislation Cited

• Children's Act 38 of 2005; s 7; s 28(2); s 29; s 45(4); s 157

Rules of Court Cited

None.

HEADNOTE

Summary
The Appellants, maternal grandparents of three minor children, appealed against a judgment that confirmed an interim order granting the Respondent, their late daughter's husband, parental rights. The Appellants contended that the court failed to consider the children's best interests and disregarded evidence from a private social worker. The appeal was upheld, and the matter was referred back for further investigation into the children's welfare.

Key Issues - Whether the final order was warranted given the conflicting evidence. - Whether the court adequately considered the best interests of the minor children.

Held

• The appeal is upheld (para [30.1]).
• The order of the Court a quo is substituted with a new order (para [30.2]).

THE FACTS

The Appellants are the maternal grandparents of three minor children: M...K...J...M, born on 1 May 2007, and two younger children, O...H...M and O...I...M, born on 2 November 2012 and 9 September 2020, respectively. The Respondent is the biological father of the two younger children and was involved in the upbringing of M...K...J...M since 2010. Following the death of the Appellants' daughter, M[...]2, in March 2024, the Respondent sought to enforce his parental rights, claiming the Appellants were infringing upon them.

The Appellants alleged that the Respondent's home was unsafe and unhealthy for the children, citing instances of neglect and verbal abuse. They sought interim guardianship of the children, while the Respondent approached the court for their return. The Appellants maintained that the children expressed a desire to remain with them, and a private social worker supported their claims of neglect in the Respondent's care.

THE ISSUES

The court was tasked with determining whether the final order in favor of the Respondent was justified, considering the conflicting evidence regarding the children's welfare. Central to this was the assessment of the best interests of the minor children amidst allegations of neglect and abuse.

ANALYSIS

The court emphasized that the best interests of the child are paramount in all matters concerning children, as enshrined in the Constitution and the Children's Act. It noted that the High Court serves as the upper guardian of all children, with broad powers to investigate and determine their best interests. The court criticized the lower court for rejecting the private social worker's report based solely on technical grounds, which it deemed a failure to fulfill its duty as upper guardian.

The court highlighted that the Children's Act provides a non-exhaustive checklist of factors to consider when determining a child's best interests, including protection from neglect and abuse. It referenced several cases that support a flexible, child-centered approach to custody disputes, emphasizing that the court should not sacrifice the children's welfare for procedural formalities.

Ultimately, the court found that the lower court's approach was overly formalistic and failed to adequately investigate the allegations of neglect and abuse. It concluded that the appeal must succeed, and the matter should be referred back for a thorough investigation into the children's best interests.

ORDER

In the result the following order is made: - The Appeal is upheld. - The order of the Court a quo is substituted with the following order: - The rule nisi is extended to 14 October 2025 at 10:00 to be heard by a different judge. - The Office of the Family Advocate, Polokwane alternatively Department of Social Development are ordered to investigate and report to the Court within 21 days concerning the best interests of the minor children in respect of their primary residence, care and contact. - The Office of the Family Advocate, Polokwane alternatively the Department of Social Development for purposes of conducting the contemplated investigation may obtain, make use of or consider the reports of any other suitably qualified person (including but not limited to Ms Tebogo Madiane Anna Segoo). - Pending the outcome of the investigation: - The minor children's current primary place of residence shall remain with the Applicant (Respondent in the appeal). - The Respondents (Appellants in the Appeal) shall be entitled to reasonable contact with the minor children. - The Applicant (Respondent in Appeal) or the Respondents (Appellants in Appeal) shall be entitled to anticipate the return date on an urgent basis. - The costs of the application shall be determined on the return date. - No order as to costs in the appeal.

LEGAL PRINCIPLES

• The best interests of the child are paramount in all matters concerning children (s 28(2) of the Constitution) (para [16]).
• The High Court acts as the upper guardian of all children and is not bound by procedural limitations (para [17]).
• The court must consider various factors to determine the best interests of the child, including protection from neglect and abuse (s 7 of the Children's Act) (para [19]).

COSTS

Not stated.

NOTES

None.