Brief Summary

Children's Law — Guardianship and contact rights — Uncles of a minor child seeking contact and guardianship following the death of their brother — Applicants, uncles of the minor child, sought interim relief for a clinical psychologist to assess the child's best interests and defined contact pending final determination of guardianship — Respondent, the child's mother, opposed the application but abandoned locus standi challenge — Court held that uncles have standing under sections 23 and 24 of the Children’s Act, emphasizing the best interests of the child as paramount in determining contact and guardianship rights.

Comprehensive Summary

Summary of Judgment

1. Introduction

This matter was brought as an application in the Gauteng Division of the High Court, Johannesburg, concerning the exercise and allocation of parental responsibilities and rights in relation to a minor child following the death of the child’s father. The application was structured in two parts, with Part A seeking interim and investigative relief pending the final determination of substantive relief in Part B.

The applicants, DT and SCT, are the minor child’s paternal uncles and the brothers of the late T. The respondent, MAMF, is the minor child’s mother and T’s former spouse. The litigation arose after T died unexpectedly on 28 February 2023, after which the respondent became the child’s primary caregiver and took a series of decisions affecting the child’s schooling, activities, and contact with the applicants.

Procedurally, the court was seized only with Part A of the notice of motion. Part A sought the appointment of a clinical psychologist and the involvement of the Office of the Family Advocate to investigate and report on what would be in the child’s best interests in relation to the relief to be pursued under Part B. Part A also sought interim contact arrangements. Part B, which was postponed, sought a final allocation of rights of contact and care under section 23 of the Children’s Act 38 of 2005, and (in respect of the first applicant) guardianship under section 24.

The dispute was, in general terms, about the appropriate mechanisms and interim arrangements to ensure that the child’s best interests were properly investigated and protected while longer-term arrangements regarding schooling, residence, contact, and possible guardianship were to be determined.

2. Material Facts

The undisputed factual background was that T and the respondent divorced on 30 September 2015, and that the minor child S was the only child born of that marriage. After the divorce, T lived with the applicants at their home in Hyde Park, Johannesburg. It was common cause that, during T’s lifetime, T and the respondent maintained an affable co-parenting relationship, and that their shared focus was the child’s best interests.

It was also common cause that, during this co-parenting period, the child’s living arrangements were that the child stayed with T from Sunday morning until the following Thursday, and then stayed with the respondent from Thursday to Sunday. Because T resided with the applicants, the child spent substantial time in the applicants’ household and developed a close relationship with them. The applicants and the child travelled with T to Cyprus on multiple occasions for holidays.

After T’s death on 28 February 2023, the child (then aged 13) began residing primarily with the respondent and her partner, D B. The applicants’ case was that, following T’s death, the respondent unilaterally made decisions that they contended were detrimental to the child and to the child’s relationship with them. In particular, the applicants relied on the following asserted post-death changes: the respondent removed the child from his prior school, P[...] Preparatory School, and placed him at H[...] College (Fourways) with effect from 2 May 2023; the child stopped attending Greek Orthodox church and Greek cultural and language activities previously attended; and the child had infrequent contact with the applicants.

The respondent’s case, as relied upon by the court for purposes of determining Part A, was that the school change was not driven by her own interests but was motivated by the child’s trauma after the father’s death. The respondent alleged that T had died on the premises of P[...] while collecting the child, and that subsequent assessment by the school psychologist indicated that the school environment had become a sad and difficult place for the child. The respondent further relied on the fact that the child obtained an academic scholarship at H[...] until Grade 12.

A further material fact was that the respondent obtained a “voice of the child” assessment in terms of section 10 of the Children’s Act from Dr Elsabe Bosch-Brits, a social worker. According to that report (dated 13 April 2023), the child expressed a wish to live with the respondent and to visit the applicants occasionally, and did not want a shared residence arrangement between the respondent and the applicants. The report also recorded that the child’s strongest attachment figure was the respondent, and that while the child had a good relationship with the applicants, he did not regard them as a father figure.

The court further treated as material the fact that there had been a sustained bond and contact between the applicants and the child for almost nine years prior to the father’s death, and that some sporadic contact had continued thereafter, albeit against a background of tension between the adults.

3. Legal Issues

The central legal questions in Part A were whether the applicants had established a basis for interim and investigative relief aimed at determining the child’s best interests before deciding the substantive Part B relief. This included whether it was appropriate to appoint an independent clinical psychologist to conduct an investigation and produce recommendations, and whether the Office of the Family Advocate should be directed to conduct an enquiry and provide recommendations.

A further legal question concerned whether the court should grant interim contact arrangements pending the final determination of Part B, and, if so, what scope and structure of interim contact would be appropriate given the evidence that a fuller assessment was still required.

Ancillary issues concerned procedural matters affecting the Part A hearing, namely condonation for the late filing of the replying affidavit and the handling of a strike-out application. The matter also raised (but did not ultimately require adjudication on) a point about locus standi, which was initially raised and then abandoned.

The dispute in Part A principally involved the application of legal standards to a developing factual matrix in a child-law context, where the court emphasised that the enquiry is not confined to ordinary adversarial fact-finding. It also involved evaluative judgment in determining what process and interim arrangements would best serve the child’s interests pending the more comprehensive investigation and final determination.

4. Court’s Reasoning

The court approached the matter from the premise that the decisive standard is the best interests of the child, described as a constitutional imperative, and that the High Court acts as an upper guardian of children. It emphasised that, in matters affecting children’s welfare, the court has wide procedural powers and is not confined by the limitations of adversarial litigation, including being entitled, where appropriate, to call evidence mero motu.

In dealing with the preliminary issues, the court recorded that the respondent had abandoned the locus standi challenge. The court accepted that sections 23 and 24 of the Children’s Act can ground standing for persons who are not parents, and that the absence of a biological link is not in itself a bar, subject always to the best-interests inquiry. On the strike-out application, the court deferred the issue to be dealt with during Part B, noting the respondent’s concession that she would not suffer prejudice as a result of deferral.

Regarding condonation, the court applied the established approach to condonation and considered both the explanation for delay and the broader context. It accepted that the delay was 11 days, regarded this as negligible, and found the explanation reasonable because the applicants awaited an expert report by Dr Duchen (a clinical psychologist). The court considered that the respondent’s asserted prejudice was linked to material she sought to strike out, and because the strike-out application was deferred, that prejudice did not stand as a basis to refuse condonation. The court was satisfied that good cause had been shown and granted condonation.

On the merits of Part A, the court rejected the respondent’s position that the matter should be determined solely on the basis of the child’s wishes as reflected in the Bosch-Brits report. While accepting that a child’s wishes must be given due consideration, the court reasoned that it is not bound to defer to those wishes, because the court’s duty is to determine what is in the child’s best interests, which may differ from what the child expresses.

The court reasoned that the determination of best interests requires a judicial investigation in which issues must be properly ventilated and available evidence fully presented. In this context, it found that the Bosch-Brits report was not sufficiently comprehensive for the Part B relief because it was produced within the limited scope of a section 10 enquiry (focused on the child’s voice), and did not amount to the broader best-interests assessment necessary for decisions about residence, care, contact, guardianship, and schooling.

The court accepted the thrust of Dr Duchen’s opinion that residency and contact arrangements require a complete and thorough investigation, and concluded that the scope of inquiry should be expanded to interrogate relevant parties against the factors listed in section 7 of the Children’s Act. It therefore held that the appointment of Dr Robyn Fasser, a clinical psychologist, and the involvement of the Family Advocate were appropriate mechanisms to assist the court in determining the child’s best interests for Part B.

The respondent’s alternative contention—that any expert should be appointed only by mutual agreement—was rejected on the basis that the respondent provided no adequate foundation for that requirement. The court noted that the applicants proposed Dr Fasser and tendered to pay the costs. It also observed that the respondent would remain entitled to obtain a second expert opinion should she disagree with Dr Fasser’s conclusions, and it encouraged mediation as a means of achieving an amicable outcome.

In relation to interim contact, the court acknowledged the respondent’s position that some communication could occur but that the child should initiate it, and that unsupervised time was opposed due to alleged past conduct by the applicants. The applicants disputed those allegations. The court considered the long-standing bond and contact between the applicants and the child prior to the father’s death, and noted that even the Bosch-Brits report reflected that the child viewed the relationship with the applicants (particularly with the second applicant, his godfather) as positive. Balancing these considerations with the view that fuller assessments were still needed, the court exercised a discretion to grant reasonable interim contact, but at a level less extensive than the applicants sought, and aligned it with the more casual and sporadic arrangements that existed prior to the child’s change of school.

5. Outcome and Relief

The court granted the Part A relief substantially in the form sought, finding that the applicants had made out a case for an independent best-interests investigation and interim contact pending the determination of Part B.

Condonation was granted for the late filing of the applicants’ replying affidavit. The respondent’s strike-out application was deferred for determination under Part B. A clinical psychologist, Dr Robyn Fasser, was appointed to investigate the child’s best interests and to report to the parties and the court, including on the child’s views and wishes, the appropriateness of contact and care rights under section 23, and guardianship under section 24. The court required the parties to cooperate with the investigation and directed that the applicants pay Dr Fasser’s costs.

The court granted defined interim contact arrangements, including specified telephonic/electronic contact on certain weekdays, alternate Saturday contact, and contact on the child’s birthday, with collection and return arrangements stipulated. The Office of the Family Advocate was requested to convene an enquiry and urgently provide recommendations regarding the Part B relief. The court granted leave for further affidavits after receipt of Dr Fasser’s report, postponed Part B sine die, and reserved the costs of Part A for determination by the court hearing Part B.

Cases Cited

Melane v Santam Insurance Co Ltd 1962 (4) SA 531 (A). Jackson v Jackson 2002 (2) SA 303 (SCA). Kotze v Kotze 2003 (3) SA 628 (T). Mpofu v Minister for Justice and Constitutional Development and Others [2013] ZACC 15; 2013 (9) BCLR 1072 (CC). Grootboom v National Prosecuting Authority and another [2013] ZACC 37; 2014 (2) SA 68 (CC). Steenkamp and others v Edcon Limited [2019] ZACC 17; (2019) 40 ILJ 1731 (CC). QG v CS (Professor DW Thaldar Amicus Curiae) 2021 JDR 1212 (GP). R.C v H.S.C [2023] ZAGPJHC 219; 2023 (4) SA 231 (GJ). B v B (67576/2009) [2015] ZAGPPHC 1014 (27 November 2015).

Legislation Cited

Constitution of the Republic of South Africa, 1996, section 28(2). Children’s Act 38 of 2005, sections 7, 9, 10, 23 and 24.

Rules of Court Cited

No specific rule of court was expressly cited in the judgment.

Held

The court held that the applicants’ late replying affidavit should be admitted, as good cause for condonation was shown in light of the short delay and the explanation provided, and given the nature of litigation involving a minor child’s best interests.

It further held that a “voice of the child” report obtained under section 10 of the Children’s Act was not, on its own, an adequate basis upon which to determine the broader best-interests questions implicated by the relief sought in Part B. A fuller investigation was required, including consideration of relevant section 7 factors and the positions of all interested parties.

The court accordingly held that it was appropriate to appoint a clinical psychologist to conduct a best-interests investigation and to request the Family Advocate to conduct an enquiry, and that interim contact between the applicants and the child should be ordered on a defined and reasonable basis pending final determination of Part B. The strike-out application was deferred to Part B, Part B was postponed sine die, and the costs of Part A were reserved for the Part B court.

LEGAL PRINCIPLES

The judgment applied the principle that in matters concerning children, the best interests of the child are paramount and constitutionally protected, and that the High Court, as the upper guardian of minors, has wide procedural powers to ensure that the best-interests enquiry is properly undertaken, including powers not constrained by ordinary adversarial procedures.

It applied the principle that child-law disputes of this nature are not to be approached as ordinary civil litigation, and that the court should be slow to resolve serious child-welfare disputes merely through the usual opposed motion approach where that would leave disputes material to the child’s welfare unresolved. The judgment emphasised that determining best interests entails a judicial investigation, and that the court is not confined to the parties’ contentions or the evidence presented, and may call evidence mero motu where appropriate.

The judgment further applied the principle that a child’s views and wishes must be given due consideration, but they are not determinative; the court’s duty remains to determine the outcome that best serves the child’s interests, even if it differs from the child’s expressed preference.

In relation to procedural relief, the judgment applied established condonation principles, treating factors such as the extent of delay, the explanation for delay, and prejudice as relevant to the “good cause” enquiry, while recognising that litigation involving a minor’s welfare has a distinctive character that informs the court’s approach to procedure.

D.T and Another v M.A.M.F (2023/032929) [2023] ZAGPJHC 1204 (24 October 2023)