M[…] D[…] P[…] v W[…] T[…] P[…] & Another
High Court of South Africa (Western Cape Division, Cape Town)
Case number: A139/2024 – Judgment delivered 17 July 2025
This judgment is reportable because it clarifies the circumstances under which an interim order regulating a child’s care, contact and primary residence may be appealed. It also canvasses, in some depth, the proper approach to unilateral relocation by a primary caregiver, the weight to be attached to expert and Family Advocate recommendations, and the correct application of the “best-interests‐of-the-child” standard under the Children’s Act 38 of 2005. Owing to the prevalence of high-conflict parenting disputes and the increasing frequency of relocation cases, the decision carries practical significance for practitioners and courts tasked with balancing the rights and responsibilities of separating parents.
J. G. v K. G. 2011 (3) SA 88 (GSJ)
F v F 2006 (3) SA 42 (SCA)
S v M (Centre for Child Law as Amicus Curiae) 2007 (2) SA 539 (CC)
Mabaso v Commission for Conciliation, Mediation and Arbitration 2020 (6) SA 215 (CC)
Children’s Act 38 of 2005
Constitution of the Republic of South Africa, 1996 – section 28
Domestic Violence Act 116 of 1998
Uniform Rule 49 (appeals)
Uniform Rule 6(12) (urgent applications)
The appellant mother sought to overturn parts of an interim order that required the parties’ four-year-old son to share primary residence between both parents in Knysna and Monzi and to follow a detailed contact regime. She argued that the child’s best interests would be served if his primary residence were with her in KwaZulu-Natal, with a modified contact schedule in favour of the father. The father resisted the appeal, contending that the order was purely interim, not appealable, and in any event correctly balanced the statutory best-interests inquiry after extensive expert input. The High Court (Ndita, Savage and Mangcu-Lockwood JJ) held that the order, although styled “interim”, was final in effect on the primary-residence issue and therefore appealable; nonetheless, the court dismissed the appeal on the merits and confirmed the shared-residence regime.
Whether an order regulating residence and contact pending divorce proceedings is truly interim or final in effect.
How courts should respond to unilateral relocation of a minor child by the primary caregiver.
The proper weight to attach to Family Advocate reports vis-à-vis private expert assessments.
The court held that the order was appealable because it disposed of the central dispute over the child’s primary residence at least until trial and thus had immediate and definitive consequences. After re-evaluating the expert evidence, the court concluded that a shared-residence model best promoted the child’s stability, continuity of care and meaningful contact with both parents. It further held that the mother’s unilateral relocation was contrary to section 18(3)(c)(iii) of the Children’s Act and could not dictate the ultimate residence determination. The appeal was accordingly dismissed, and the original contact regime was confirmed with minor clarificatory amendments.
The parties married in October 2017 and lived on the mother’s farm near Knysna. Their son, born 26 April 2020, was breast-fed and primarily cared for by the mother, although the father—who worked remotely—spent substantial daily time with him. Following escalating conflict and a withdrawn domestic-violence application, the mother moved out on 21 September 2021, settling in a nearby flatlet while the father adjusted his work to maintain daily contact with the child.
On 21 January 2022, without the father’s knowledge or consent, the mother relocated with the child to Monzi, KwaZulu-Natal, some 1 600 km away, effectively severing the father’s agreed contact. The father launched urgent proceedings in the Western Cape High Court seeking the child’s return and interim contact provisions. Van Zyl AJ issued a rule nisi on 7 February 2022 permitting the mother to remain temporarily in KwaZulu-Natal but instituting a shared-residence and contact framework and directing comprehensive expert investigations.
Both parties commissioned private expert reports; Dr Karen Spurrier (for the father) endorsed a phased movement towards equal parenting in the Western Cape, while Mr Anthony Townsend (for the mother) concentrated on attachment considerations favouring stable residence with the primary caregiver. The Family Counsellor recommended that the child remain with the mother but emphasised the father’s continuing involvement. The divorce action instituted by the mother in KwaZulu-Natal remains pending.
The first issue was whether the 2 May 2023 order, confirmed on the return day of the rule nisi, was genuinely interim and thereby unappealable, or whether it constituted a final pronouncement on residence susceptible to appeal. Secondly, the court had to determine, if the merits were open, where the child’s primary residence should lie in light of his best interests, given the parties’ geographic separation, their entrenched conflict and the competing expert recommendations.
The court commenced by examining the nature of the impugned order. Referencing F v F and S v M, it reiterated that the label “interim” does not preclude appealability where an order has final effect on a substantive issue and is not merely procedural. A primary-residence order, even pending trial, profoundly affects parental responsibilities and a child’s lived reality; it is therefore final in effect and directly appealable.
Turning to the substance, the court re-evaluated the expert evidence without deference to the court a quo’s discretion, because the child’s interests are paramount and the appellate court is duty-bound to form its own view. Emphasis was placed on section 7 of the Children’s Act, particularly the need for a child to maintain personal relations with both parents and to experience stability. The court observed that the mother’s unilateral relocation undermined co-parenting and placed an unjustified travel burden on the father. Equally, the father’s proposal that the mother move back to the Western Cape did not fully appreciate the child’s established attachment to her extended family network in KwaZulu-Natal.
Balancing these considerations, the court favoured the shared-residence model crafted by Van Zyl AJ, concluding that it maximised the child’s contact with both parents while distributing the inconvenience of travel. The court found no misdirection in the original exercise of discretion and no cogent reason to disturb the arrangement, save for minor logistical clarifications about travel costs once the child entered formal schooling.
The appeal was dismissed. The order of 2 May 2023 was confirmed, subject only to an ancillary amendment that, from the child’s sixth birthday, travel costs for contact weekends would be borne equally by the parties. No order as to costs was made, the court holding that it would be contrary to the child’s best interests to burden either parent with an adverse costs award.
First, an order governing a child’s residence and contact may be appealable despite being framed as “interim” where it finally determines a substantive aspect of parental rights and has immediate practical effect.
Second, unilateral relocation by a primary caregiver without the other guardian’s consent or a court order contravenes section 18(3)(c)(iii) of the Children’s Act and cannot be allowed to dictate the ultimate residence outcome. Courts must guard against parents “self-helping” in relocation disputes.
Third, in applying the best-interests standard under section 7 of the Children’s Act, courts must blend attachment theory, developmental psychology and practical feasibility. Meaningful contact with both parents, continuity of caregiving and each parent’s willingness to facilitate the other’s relationship with the child remain pivotal considerations.
Fourth, expert reports—whether private or from the Family Advocate—are valuable but not decisive. The court retains an independent duty to evaluate all evidence through the prism of the child’s best interests.
Finally, costs orders in children’s matters should be approached with restraint, lest litigation funding be diverted from resources better devoted to the child’s welfare.