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A.C v S.A.M (22507/2021) [2023] ZAGPJHC 756 (27 June 2023)

80 Reportability
Family Law
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Brief Summary

Family Law — Children — Best interests — Primary residency — Urgent application for determination of primary residency of minor child following allegations of abuse — Clinical psychologist appointed to assess child's best interests — Evidence of a toxic home environment and abuse by respondent — Court finds that the minor child's best interests are served by residing with the applicant and attending a boarding school in KwaZulu-Natal, away from the respondent's influence.

Comprehensive Summary

Summary of Judgment


Introduction


The matter was an application in the High Court (Gauteng Division, Johannesburg) concerning the care, contact arrangements, and schooling of a minor child, with the central dispute framed through the lens of the child’s best interests. It arose initially as an urgent application in which interim relief was sought pending an expert investigation.


The parties were the biological father (the applicant) and the mother (the respondent) of a minor child born out of wedlock. The proceedings were directed at determining, on a final basis, the child’s primary residence, appropriate contact arrangements, and—most prominently—the appropriate province and setting for the child’s boarding school education.


Procedurally, the matter first served on an urgent basis on 18 May 2021, when the court granted interim relief and appointed Dr Fabbro, a clinical psychologist, to investigate and report on the minor child’s best interests, particularly relating to primary residence. A rule nisi was later extended, ultimately pending the delivery of judgment (extended on 17 April 2023). Dr Fabbro delivered a report in January 2022, after which the applicant enrolled the matter for final adjudication on 8 August 2022.


On the hearing date in August 2022, the respondent was unrepresented, and the court considered that she could not properly articulate her opposition or present her case. The matter was postponed sine die to facilitate pro bono assistance for the respondent and was placed under case management. During case management, the court addressed, among other issues, the process by which the minor child would be afforded an opportunity to express a preference, and the appointment of an expert to assist in formulating questions to the child when he appeared in court.


The respondent was granted leave to apply for condonation for the late filing of her answering affidavit but failed to file the directed condonation application. The applicant raised objections and technical points directed at non-compliance and alleged defects in the answering affidavit. The court nevertheless elected to proceed, emphasising that what was paramount was the best interests of the minor child, and that technicalities should not obstruct that enquiry.


Material Facts


It was common cause that the minor child (about fourteen years old at the time of the judgment) was born of a relationship between the applicant and respondent that had ended after the child was conceived. The applicant was the child’s biological father and was eighty-four years old, while the respondent (the mother) was forty-one years old.


It was not disputed that the applicant maintained the minor child, and also maintained the respondent. The court recorded, without treating it as determinative, that the applicant believed he had been intentionally misled by the respondent into conceiving the child, but expressly regarded that aspect as immaterial to the issues before it.


The papers and background placed before the court reflected an escalation of conflict between the parties. The court accepted that the conflict included verbal and physical abuse of the applicant by the respondent, and that the applicant had obtained a protection order against the respondent. It was further recorded that the respondent failed to obey the protection order and that she received a six-month sentence arising from that disobedience.


A key factual point underpinning the respondent’s opposition was that the applicant had moved the child and placed him in a boarding school in KwaZulu-Natal without her consent. The respondent alleged that she was unemployed and could not afford travel to KwaZulu-Natal to visit the child, with the result that she was effectively denied access and that the mother-child relationship would be harmed.


In response to the court’s interim directives, expert evidence was obtained. Dr Fabbro (clinical psychologist) assessed both parents and the minor child. The report recorded parental issues requiring attention, including tension and conflict between the minor child and the respondent. The minor child reported to the expert that the respondent had engaged in physical aggression, and he reported fear and anxiety towards her. The court noted that the minor child conveyed similar information when he appeared in court. Dr Fabbro classified the respondent’s behaviour (as described in the report) as child abuse and illegal.


At the time of Dr Fabbro’s assessment, the child was already attending the KwaZulu-Natal boarding school. Dr Fabbro recommended that the child continue at the current boarding school and continue secondary schooling in a similar boarding setting, together with a structured regime including supervised contact for the respondent (with limitations on sleepover contact), the possible appointment of a parenting coordinator, psychotherapy for the child, and counselling for both parents.


A further expert report was placed before the court from Dr Hartzenberg, an educational psychologist. That report recorded that the child lacked warmth in the home environment, that there was a need to protect him from threats within that environment, and that the child had experienced interpersonal physical intimidation in the home.


The minor child’s own stated preference was also placed before the court. He indicated that although there were good boarding schools in Gauteng, his preference was to remain at the boarding school in KwaZulu-Natal, which he described as an excellent school meeting his educational needs.


Legal Issues


The central legal question was what arrangements would best serve the best interests of the minor child, particularly concerning where the child should attend boarding school—whether the child should remain in KwaZulu-Natal or instead attend a school in Gauteng to facilitate closer physical proximity to the respondent.


Closely linked to this was whether the child’s primary residence should continue to vest with the applicant, and what contact regime should be ordered for each parent. The respondent’s opposition framed the dispute as implicating her ability to exercise contact and to preserve her relationship with the child, given the geographical distance and her asserted inability to travel.


The dispute primarily concerned the application of law to fact within a child-law framework. The governing standards were the constitutional and statutory best-interests principles, applied to the factual matrix disclosed by the parties and the expert assessments. The court also exercised a value-based evaluative judgment intrinsic to best-interests determinations, including a weighing of stability, safety, emotional security, and the child’s expressed preferences.


A further procedural issue arose as to whether the court should entertain the respondent’s opposition notwithstanding non-compliance with procedural directives and technical defects alleged by the applicant. The court treated this as subordinate to the best-interests enquiry, given the court’s role in matters concerning minor children.


Court’s Reasoning


The court located the enquiry within the constitutional imperative that a child’s best interests are of paramount importance in every matter concerning the child, referring to section 28(2) of the Constitution. It further relied on section 9 of the Children’s Act 38 of 2005, identifying it as prescribing that the standard to apply in all matters concerning the care, protection, and well-being of a child is the child’s best interests, to be determined on the particular facts and circumstances of the child.


To structure that enquiry, the court referred to the factors listed in section 7(1) of the Children’s Act, highlighting that the matter engaged issues of parental responsibilities and rights concerning care, contact, and schooling, and that the dispute was materially connected to the child’s well-being within a home environment characterised by conflict. The court also referred to section 18(1) of the Children’s Act in identifying the parental responsibilities and rights that include caring for the child, maintaining contact, acting as guardian, and contributing to maintenance.


In addressing procedural objections, the court emphasised that in matters involving children the court sits as upper guardian, and that it may consider information relevant to best interests even where legal technicalities would ordinarily restrict the reception of such information. In that context, it relied on authority recognising wide powers and the principle that legal niceties should not frustrate the determination of a child’s best interests. This informed the court’s approach to condoning the respondent’s procedural shortcomings and proceeding to determine the matter substantively rather than on technical grounds.


On the merits, the court attached significant weight to the two expert reports. Dr Fabbro’s report was treated as establishing that, in the child’s circumstances, a regime should be designed to support psychological health and constructive relationships with both parents, but within a context where there were serious parental issues and where the child reported fear and anxiety towards the respondent arising from physical aggression. The court noted the expert’s classification of the respondent’s conduct (as reported) as child abuse and illegal, and treated that as directly relevant to the statutory best-interests factors, including the need to protect the child from physical and psychological harm and from exposure to violence or harmful behaviour.


The educational psychologist’s findings reinforced the court’s view that the home environment was not conducive to the child’s stability and emotional well-being, given the lack of warmth and experiences of intimidation. On that evidentiary footing, the court concluded that no basis had been established to reject the experts’ opinions and recommendations.


The court then considered the child’s own expressed preference, as communicated directly to the court, and treated it as supportive of the experts’ recommendations. The child indicated a preference to remain at the KwaZulu-Natal boarding school because it met his educational needs. The court weighed this preference together with the expert evidence about the home environment and the statutory framework requiring a stable and protective environment.


In the result, the court concluded that the child’s best interests were served by remaining at the current boarding school in KwaZulu-Natal, with primary residence continuing to vest in the applicant, while also crafting a structured contact regime, including supervised contact for the respondent and therapeutic interventions aimed at addressing emotional and behavioural difficulties and repairing relationships where appropriate. The court’s orders also included facilitative mechanisms aimed at reducing future conflict, including the availability of a parenting coordinator.


Outcome and Relief


The court granted final relief substantially aligned with the experts’ recommendations. It ordered that the minor child’s primary residency would continue to vest with the applicant on condition that the child continue attending boarding school at Michaelhouse (KwaZulu-Natal) and that the child’s secondary schooling should continue in a similar boarding arrangement at a suitable facility.


The court regulated contact by providing that the applicant would have contact consisting of half of every school holiday and reasonable telephonic and electronic communication in accordance with the rules of the school. The respondent was granted supervised contact, including reasonable telephonic and electronic communication, and supervised in-person contact for at least one week and at most two weeks of the school holidays, with no sleepover contact until an expert recommended otherwise. The respondent was made liable for the costs (if any) associated with supervised contact. The order permitted flexibility in scheduling and contemplated that arrangements could be revisited following a further assessment of the child’s best interests at an appropriate time.


The court further ordered that either party could appoint a parenting coordinator to assist with resolving disputes and implementing parenting and contact arrangements, and directed that both parties participate. It also ordered that the minor child should commence and/or continue psychotherapy, and that both parents should attend parental counselling, each bearing their own costs in that respect.


As to costs of the application, the court ordered that each party is liable for his or her own costs.


The judgment recorded that it was varied to correct typographical errors, including correcting the boarding school name and correcting an error in the contact paragraph by replacing “Respondent” with “Applicant.”


Cases Cited


B v B (CA&R60/2017) [2018] ZAECGHC 74 (28 August 2018).


AD and Another v DW and Others (CCT48/07) [2007] ZACC 27; 2008 (3) SA 183 (CC); 2008 (4) BCLR 359 (CC) (7 December 2007).


Raduvha v Minister of Safety and Security and Another [2016] ZACC 24.


Legislation Cited


Constitution of the Republic of South Africa, 1996, section 28(2).


Children’s Act 38 of 2005, sections 7(1), 9, and 18(1).


Rules of Court Cited


No specific rule number was cited; the judgment referred generally to non-compliance with procedural requirements and the court’s decision to condone non-compliance in the best-interests enquiry.


Held


The court held that, applying the constitutional and statutory best-interests standard, the evidence before it—particularly the expert reports and the child’s expressed preference—supported the conclusion that the child’s best interests were served by remaining in a boarding school environment in KwaZulu-Natal rather than relocating to Gauteng.


It held further that the home environment was not conducive to the child’s stability and well-being, and that the reports describing tension, conflict, and physical intimidation justified a structured regime that prioritised the child’s safety and emotional security, including supervised contact for the respondent with restrictions on sleepover contact until expert advice indicated otherwise.


The court held that technical procedural defects and non-compliance should not prevent the adjudication of what is in the child’s best interests, given the court’s role as upper guardian and the paramountcy of the best-interests principle.


LEGAL PRINCIPLES


The best interests of the child are of paramount importance in all matters concerning the child, as required by section 28(2) of the Constitution, and constitute the governing standard for decisions about care, protection, well-being, residence, contact, and schooling.


Under section 9 of the Children’s Act 38 of 2005, the best-interests standard must be applied in all matters concerning the care, protection, and well-being of a child, and what constitutes best interests must be assessed with reference to the particular facts and circumstances of the child concerned.


The factors listed in section 7(1) of the Children’s Act provide the framework for assessing best interests, including relationships with parents and caregivers, the parents’ capacity to meet emotional and intellectual needs, the likely effect of changes in circumstances, practical difficulties affecting contact, the need for stability, and the need to protect the child from physical or psychological harm and from exposure to violence or harmful behaviour.


In children’s matters, the court functions as the upper guardian and may adopt an approach that does not allow procedural technicalities to frustrate the determination of the child’s best interests, including by having regard to relevant information even where ordinary legal technicalities might otherwise limit its reception.

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[2023] ZAGPJHC 756
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A.C v S.A.M (22507/2021) [2023] ZAGPJHC 756 (27 June 2023)

SAFLII Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
FLYNOTES:
FAMILY – Children –
Best interests – Primary residency – Toxic home
environment – Verbal and
physical abuse by respondent in
resolving conflict with applicant – Clinical psychologist’s
investigation regarding
minor child's best interest –
Experts report noted tension and conflict between child and
respondent – Expert
classified respondent's behaviour as
child abuse and illegal – Child experienced interpersonal
physical intimidation
within home environment – KZN boarding
school is best suited to child’s needs under care of
applicant –
Children's Act 38 of 2005
,
ss 7(1)
and
9
.
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
JOHANNESBURG)
CASE
NO: 22507/2021
NOT
REPORABLE
NOT
OF INTEREST TO OTHER JUDGES
27.06.23
In
the matter between:
A
C
Applicant
And
S
A M
Respondent
Delivered:
This judgment
was handed down electronically by circulation to the parties' legal
representatives by email, and uploaded on caselines
electronic
platform. The date for hand-down is deemed to be
27
June 2023.
Summary:
Urgent application.
The court granting interim order appointing a clinical psychologist
and expert to investigate the
minor
child's best interest, specifically in relation to the issue of the
primary residency of the minor child. On the return day
the court had
to determine the issue of the best interest of the minor child more
importantly relating the province where he should
attend the boarding
school.
A
child's best interest categorised as being of paramount importance in
every matter concerning a minor child by section 28 (2)
of the
Constitution. The standard to apply in determining the best interest
of a minor child set out in
section 9
of the
Children's Act. The
factors to take into account in considering the best interest of a
child are set out in
section 7
(1) of the Act.
JUDGMENT
(Varied)
[1]
Molahlehi
J
Introduction
[1]
This matter
initially served before the court on 18 May 2021 as an urgent
application. The applicant in that application sought
an order for
the appointment of Dr Fabbro, a clinical psychologist, to investigate
the minor child's best interest, specifically
in relation to the
issue of the primary residency of the minor child. The applicant
further sought an interim order declaring the
primary residency of
the minor child to be with him pending the finalisation of the
investigation into issue of the best interest
of the minor child. He
further sought an order suspending contact rights with the minor
child.
[2]
The rule nisi
was extended on 17 April 2023 pending delivery of the judgment.
[3]
The court,
having found that the matter deserves to be treated as one of
urgency, directed that Dr Fabbro should conduct the investigation

into the interest of the minor child as prayed for by the applicant
and further ordered that:
(a)
The primary
residence of the minor child be vested with the applicant,
(b)
The respondent
be afforded telephonic contact with the minor child,
(c)
The applicant
was obligated to ensure that the minor child attends school.
(d)
The respondent
was prohibited from attending or collecting the minor child from the
school.
[4]
Following his
investigation concerning the interest of the minor child Dr Fabbro
issued the report in January 2022.
The applicant then
enrolled the matter for hearing for final adjudication on 8 August
2022 and sought an order in line with the
recommendations of Dr
Fabbro.
[5]
The
respondent was on the day of the hearing unrepresented. It became
apparent during the hearing that she was unable to articulate
her
opposition to the application and the case she wished to present to
the court. The matter was then postponed
sine
die
for
the court to facilitate the appointment of
pro
bono
assistance
for the respondent. The matter was further referred to case
management by the court.
[6]
After the
postponement of the matter, several case management meetings were
held. The discussions in those meetings were mainly
about the
procedure, including the arrangement to invite the minor child to
appear in court and share his preference concerning
attending the
boarding school in KZN or Gauteng. The other issue which was dealt
with during the case management process was the
appointment of an
expert to assist in formulating the questions to be posed to the
minor child when he appears in court.
[7]
The respondent
was granted leave to file her application for condonation for the
late filing of her answering affidavit. I pause
to indicate that the
respondent failed to file her condonation application as was directed
by the court. The applicant objected
to the court entertaining the
respondent's case when the matter finally served before it. The
objection included other technical
points, raised by the applicant
the alleged defects in the answering affidavit. As appears from
above, what is paramount in this
matter concerns the interest of the
minor child. It was for this reason that this court condoned the
respondent's failure to comply
with the rules. It further resolved to
ignore all the technical points raised by the applicant and proceeded
to adjudicate the
matter as though the respondent had complied with
the directive.
Background
facts
[8]
It is common
cause that the minor child, who is now fourteen years old, was born
out of wedlock between the applicant and the respondent.
The
applicant, who is the biological father of the minor child, is
eighty-four years old, and the respondent, the mother, is forty-one

years old.
[9]
There
is no dispute about the fact that the applicant maintains the minor
child, including the respondent. The intimate relationship
between
the parties broke down after the minor child was conceived. It would
appear that the applicant believes that the respondent
"intentionally
misled" him into
conceiving
the
minor child. This is of no moment in the adjudication of the present
application.
[10]
The conflict
between the two escalated to the extent of verbal and physical abuse
of the applicant by the respondent. The applicant
had to obtain a
protection order against the respondent to address the abuse. She did
not obey the protection order resulting in
a six months’
sentence being imposed on her.
[11]
The
respondent's complaint in opposing the application is that the
applicant moved the minor child and placed him at a boarding
school
in Kwa Zulu Natal (KZN) without her consent. She avers that she is
unemployed and thus cannot afford to travel to KZN to
visit the minor
child, and accordingly, she is denied access to the minor child. This
will, according to her, destroy her relationship
with the child, who
will feel abandoned by his mother.
[12]
In the heads
of argument, the respondent's Counsel does not deal with the expert
reports but simply argues that it would be in the
interest of the
minor child to be closer to the parents and in a boarding school in
Johannesburg.
[13]
The respondent
further contends that the best interest of the minor child is for him
to attend schooling in Gauteng, which will
ensure that he receives
proper care and supervision.
The
law governing the best interest of minor children
[14]
A
child's best interest is categorised as being of paramount importance
in every matter concerning the child by section 28 (2) of
the
Constitution.
[2]
The qualitative
value of the importance of the best interest of a child is provided
in
section 9
of the
Children's Act (the
Act),
[3]
which provides that the standard to apply in all matters concerning
the care, protection and well-being of a child is that the
child's
best interests. The determination of what constitutes the best
interest of a child or children has to be made based on
the
particular facts and circumstances of the child or children in
question. The factors to consider in determining the best interest
of
a child are set out in
section 7
(1) of the Act, which provides:
“
Whenever
a provision of this Act requires the best interests of the child
standard to be applied, the following factors must be
taken into
consideration where relevant, namely-
(a)
the nature of the personal relationship
between-
(i)
the child and the parents, or any specific
parent; and
(ii)   the child and
any other care-giver or person relevant in those circumstances;
(b) the attitude of the
parents, or any specific parent, towards-
(i)    the
child; and
(ii)   the
exercise of parental responsibilities and rights in respect of the
child;
(c)
the capacity of the parents, or any
specific parent, or of any other care-giver or person, to provide for
the needs of the child,
including emotional and intellectual needs;
(d)
the likely effect on the child of any
change in the child's circumstances, including the likely effect on
the child of any separation
from-
(i)
both or either of the parents; or
(ii)
any brother or sister or other child, or
any other care-giver or person, with whom the child has been living;
(e)
the practical difficulty and expense of a
child having contact with the parents, or any specific parent, and
whether that difficulty
or expense will substantially affect the
child's right to maintain personal relations and direct contact with
the parents, or any
specific parent, on a regular basis;
(f)
the need for the child-
(i)
to remain in the care of his or her
parent, family and extended family; and (ii) to maintain a connection
with his or her family,
extended family, culture or tradition;
(g)
the child's-
(i)
age, maturity and stage of
development;
(ii)
gender;
(iii)
background; and
(iv)
any other relevant characteristics of the
child;
(h)
the child's physical and emotional
security and his or her intellectual, emotional, social and cultural
development;
(i)
any disability that a child may have;
(j)
any chronic
illness from which a child may suffer;
(k)
the need for a
child to be brought up within a stable family environment and, where
this is not possible, in an environment resembling
as closely as
possible a caring family environment;
(l)
the need to
protect the child from any physical or psychological harm that may be
caused by-
(i)
subjecting the
child to maltreatment, abuse, neglect, exploitation or degradation or
exposing the child to violence or exploitation
or other harmful
behaviour; or
(ii)
exposing the
child to maltreatment, abuse, degradation, ill-treatment, violence or
harmful behaviour towards another person;
(m)
any
family violence involving the child or a family member of the child;
and
(n)
which action
or decision would avoid or minimise further legal or administrative
proceedings in relation to the child."
[15]
This matter
concerns the responsibilities and rights of the parties to care for,
maintain contact and the schooling of the minor
child. In essence the
matter involves the
well-being
of the minor in the
home environment. It is an environment of conflict between the
parents and extend to the situation where the
respondent has already
been found guilty of contempt of court in that she did not obey an
order restraining her from using violence
in resolving her conflict
with the applicant.
[16]
As alluded to
earlier, the respondent's case concerns the right of access to the
minor child, which she contends has been denied
by placing the minor
child at a boarding school outside the province of Gauteng.
Section
18(1)
of the Act provides for the rights and responsibilities of a
parent in respect of a child and they include; the following rights

and obligations (a)
to care for the
child;
(b)
to
maintain contact with the child;
(c)
to act as guardian of the child;
and
(d)
to
contribute
to the
maintenance of the child.
[17]
It
is trite that in matters involving children this court seats as the
upper guarding and will, in determining what is in the best
interest
of a child, have regard to any information made available to it
irrespective of legal technicalities that may ordinarily
restrict
receipt of such information. This approach was adopted
in
B
v B
,
[4]
where
it was noted that the court in matters of this nature has very wide
powers in determining what constitutes the best interest
of and
held:
"
The
court may have recourse to any source of information, of whatever
nature, which may assist it to determine the best interests
of
children insofar as the primary caregiver for them is
concerned
.
Legal
niceties should not frustrate the quest to determine the best
interests of a child."
[18]
The
same view was expressed in
AD
and Another v DW and Others
,
[5]
where the court held that:
"In
matters of this nature, the interests of minor children will always
be paramount. To this extent, the approach of the minority
in the
Supreme Court of Appeal was correct in its insistence that Baby R's
best interests should not be mechanically sacrificed
on the altar of
jurisdictional formalism."
The
expert report
[19]
As
indicated above, the court, in the urgent application, appointed the
psychologist to investigate the minor child's best interest.
After
evaluating both parents and the minor child, the expert noted that in
the circumstances of the minor child, it was important
to design a
regime that would ensure that he "attains psychological
health
and manages to develop constructive and fulfilling relationships
with both parents." This observation is made in
the context
where it is clear from the papers and the expert report that there
are parental issues that require attention, including,
more
importantly, the tension and conflict between the minor child and the
respondent. In this regard, the child reported to the
expert
"physical aggression on her part as well as his reported fear
and anxiety to her." It should be mentioned that
the same
information was shared with the court by the minor child when he
appeared in court. The expert correctly classified the
respondent's
behaviour as child abuse and illegal.
[20]
It is
important to note that at the time the expert conducted her
assessment, the minor child was already at the boarding school
in
KZN. Following the findings made in the report, the expert
recommended that:
"1.1
(The minor child) should continue to attend boarding school at [...].
His secondary schooling should
continue in the same vein at a
suitable boarding facility.
1.2
.
. .
1.3
(The Respondent) should have supervised contact with (the minor
child) for at least one week of his
school holiday and, at most, two
weeks. This means that there can only be sleepover contact once the
need for supervision is no
longer there. The contact does not need to
be exercised on consecutive days but can be arranged accordingly
based on the availability
of the various parties. This arrangement
can be revisited given a further assessment of (the minor child's)
best interest at the
appropriate time.
1.4
A parenting coordinator should be appointed to assist (the Applicant
and (the Respondent) in the resolution
of any further disputes in the
ongoing parenting of (the minor child). This individual should aid in
alleviating any ongoing conflict
and power struggles and facilitate
the smooth implementation of parenting, contact and the best interest
of (the minor child).
1.5
(The minor child) should commence with psychotherapy to assist him
with his emotional and behavioural
difficulties. A separate therapy
space for himself and (the respondent) may be necessary as well to
assist in the remediation of
their relationship.
1.6
Both
(the Applicant and the Respondent) should attend
parental counselling to assist them with developing
appropriate
and constructive parenting skills for (the minor child).
1.7
(The minor child's) involvement in non-gaming endeavours
such as motocross should be supported and encouraged."
[21]
The other
expert's report that served before this court is that of Dr
Hartzenberg, an educational psychologist. In the report, the
expert
found that the minor child lacked warmth in the home environment with
the need to protect him from threats from the home
environment. It
was further found that the minor child had experienced interpersonal
physical intimidation within the home environment.
[22]
In my view,
there is no case made to reject the opinions and the recommendations
of the two experts. It is apparent from the information
before this
court that the home environment is not conducive for the minor child.
The home environment is neither stable nor conducive
for him, as
required by
section 7
(1) of the Act. I am thus in agreement with the
opinion of Dr Fabbro that the best interest of the minor child is to
allow him
to remain and continue his schooling at the boarding where
he is currently attending in KZN. This opinion is supported by the
view
of the minor child, who indicated in court that whilst there are
some good boarding schools in Gauteng, his preferred choice is
to
remain at the KZN boarding school. According to him, it is an
excellent school that satisfies his educational needs.
[23]
I also find no
reason to differ with the opinion of the expert that the primary
residency of the minor child should remain with
the applicant pending
other processes recommended by the experts.
Order
[24]
In light of
the above, I make the following order:
1.
Primary
residency of the minor child will continue to vest with the applicant
on the provision that the minor child shall continue
to attend
boarding school at Michaelhouse (KZN) and that the minor child's
secondary schooling should continue in the same vein
at a suitable
boarding facility.
2.
The Applicant
will have contact as follows:
2.1
Half
of every school holiday.;
2.2
Reasonable telephonic contact with the minor child and in accordance
with the Rules of the school the minor child is attending
via phone
call and messaging and other methods of communication such as Skype
and/or WhatsApp;
3.
The Respondent will have supervised contact with the minor child as
follows:
3.1
Reasonable telephonic contact with the minor child
and in accordance with the Rules of the school the minor
child is
attending via phone call and/or messaging and other methods of
communication such as Skype and/or WhatsApp;
3.2
For at least one week of his school holiday and at
most two weeks.;
3.3
No sleepover contact until such time that an
expert has recommended otherwise;
3.4
The Respondent is liable to pay for the costs, if
any, in relation to the aforementioned supervised contact;
3.5
The aforesaid contact does not need to be exercised on consecutive
days but can be arranged accordingly
based on the availability of the
various parties;
3.6
The contact arrangement can be revisited given a
further assessment of the minor child's best interests at
the
relevant time.
4.
Any of the parties is entitled to appoint a parenting coordinator to
assist in resolving any further
disputes in the ongoing parenting of
the minor child. The parenting coordinator should aid in alleviating
any ongoing conflict
and power struggles and facilitate the smooth
implementation of parenting, contact and the best interests of the
minor child. Both
parties are obligated to partake in said process.
5.
The minor child should commence and or continue psychotherapy to
assist him with his emotional
and behavioural difficulties.
6.
Both the Applicant and Respondent should attend parental counselling.
Each party is liable for
their own costs in respect of same.
7.
Each party is liable for his or her own
costs.
E
MOLAHLEHI
JUDGE
OF THE HIGH COURT
GAUTENG
LOCAL DIVISION,
JOHANESBURG
Representation:
For
the applicant:
Adv
C Spanenberg
Instructed
by:
Jasper
van der Westhuizen and Bodenstein Inc
For
the respondent:
Adv
V Jozi
Instructed
by:
A
Nolte Attorneys.
Heard:
17 April 2023
Delivered:
27
June
2023.
[1]
The
judgment has been varied to correct the typographical errors as
follows:
1.
In paragraph 1 to replace the name
[…]
“
with  […],” the boarding school
where the minor child is currently attending.
2.
In paragraph 2 replace the word
“Respondent” with the word “Applicant.”
[2]
See
Raduvha
v Minister of Safety and Security and Another [2016] ZACC 24.
[3]
Act
number 38 of 2005.
[4]
(CA&R60/2017)
[2018] ZAECGHC 74 (28 August 2018).
[5]
(CCT48/07)
[2007] ZACC 27
;
2008 (3) SA 183
(CC);
2008 (4) BCLR 359
(CC) (7
December 2007).

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