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JUDGMENT
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NOKO J
Introduction
[1] This is an urgent application by L […] R[…] J[…], first intervening party and his
wife TJ, second intervening party (“interven ors or uncle and/or aunt ”) in a pending
application (“pending application ”) between J[…]B[…]J[…] (“father ”) and E HB
(“grandmother or granny ”) and others . At the centre of all applications is the parental
responsibilit ies and rights1 of the two children (“K and C ”) of the father and his late wife
V[…] J[…] (“VJ or the late wife or the deceased ”) who reside at a property situated in
Craighall Park, Johannesburg ( “the Craighall residence ”).
[2] In the pending application the father has, immediately after the passing of the wife,
approached the Court on an urgen t basis for the respondent s to hand over the children to
him and for the order that his access to the Craighall residence should not be interfered
with. The granny opposed the father’s application and launched an urgent counter -
application with orders divided into two parts. The orders sought in Part A were, first, an
interim order for th e contact and care of the chi ldren as contemplated in section 23 of the
Children’s Act (“ the Act ”) alternatively care in terms of section 32(1) of the Act . Secondly ,
that a curator ad litem be appointed on behalf o f the children. The orders sought in Part B
for co -guardianship ; alternatively , full parental responsibilities and rights in respect of the
children and right of contact and care be preceded by the investigation and the
recommendations to be made by Dr Giada Del Fabbro (“Dr Del Fabbro ”), a psychiatrist
(to be appointed by the Court) and the curator ad litem .
1 Section 18 (2) of the Children’s Act 38 of 200 5 provides that parental responsibilities and rights include the
responsibility and right to care for the child, maintain contact , act as guardian and contribute to the
maintenance of the child.
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[3] The pending application served before Pretorious AJ who delivered judgment on
17 April 2024 in terms of which , inter alia , the father’s application was dismiss ed and the
costs reserved .
[4] Pretorious AJ granted several following orders in respect of the granny’s counter -
application , inter ali a, that the primary care of the children be granted to the granny which
will be exercised at the Craighall residence ; the exercise of parental responsibilities and
rights be granted to the granny and he right to maintain supervised contact with the children
be exercised by the father . Tanya Kriel (“Ms Kriel ”) or another Social Worker under her
employ was appointed to supervise the contact ; Advocate Chrisna Jooste Bekker (“Adv
Bekker or curator ”) was appointed as a curator ad litem and Dr Del Fabbro was appointed
to conduct a forensic investigation into the best interest of the children, including their
primary residence , care and contact and suitable guardian (s) and the costs of the supervised
contact to be paid for the first two months by the father and third respondent (“maternal
uncle ”) and thereafter be shared equally between the two on the one hand , and with granny
on the other hand.
[5] Dr Del Fabbro compiled and submitted a report dated 30 September 2024 and
recommended that the intervenors be appointed as guardian s for the children. Immediately
thereafter the intervenors launched this application to intervene in the pending application
and sought further relief as set out below:
5.1 to be appointed as sole guardians for the children in terms of section 24(1) of the
Children’s Act,
5.2 that parental responsibilities and rights of J BJ to be terminated in ter ms of section 28(4)
of the Children’s Act.
5.3 that the children be removed from the Republic of South Africa without requiring
consent of the Respondent as envisaged in section 18(3)(c)(ii) of the Children’s Act
and to relocate to Scotland. The attendant costs thereof to be paid by Amber Trust.
5.4 JBJ‘s rights of contact be under supervision by a social worker nominated by Kidsbuzz
Supervised Visitation and Binding Therapy Centre during the times when the children
travel to the Republic of South Africa which will take place twice per year. The costs
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hereof to be paid by Amber Trust including social worker’s expenses until J BJ is
gainfully employed.
5.5 Certain orders set out in para s 2.2.1 – 2.2.4, 2.3, 2.4, 2.6 and 2.7 of the Pretorious AJ ’s
interim order granted on 17 April 2024 be varied .
[6] The father is opposing the intervention application and has launched a counter -
application for the following orders :
6.1. That the applicant retains sole guardianship, full parental responsibilities and rights of
the minor children;
6.2. That a three -months re -integration process be commenced and further that Amber
Trust be ordered to pay all costs of the six-month re-integration process.
[7] The other parties participating are the curator and the granny .
Background
[8] The background of the lis was comprehensively chronicled in the judgment by
Prinsloo AJ and the details thereof need not be regurgitated in this judgment . In brief, the
father and his decease d wife were married in community of property in 20 11. Two children
were born from their marriage, a boy aged 13 and a girl aged 7. The deceased was a medical
practitioner, Due to her hectic schedule , as a trauma surgeon, she was initially assisted in
taking care of the children by an au pair , Krist en Herbst (“Krist en"), Elizabeth Dube
(“housek eeper ”) and her mother. Sandra Wijtenburg ( “Sandra” ) was later employed as a
second au pair .
[9] The relationship between the father and the deceased broke down in 2019 . The
father moved out of the parties’ residence in Craighall and moved into the parties’ other
property situated in Midrand . The deceased instituted divorce proceedings in 2020 but
passed on whilst with her partner , Shaan Riley, in March 20 24 before the divorce was
finalised .
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[10] It is stated that at the centre of the breakdown of the marriage was, inter alia , the
father ’s drug abuse, specifically CAT. Further that the father ’s conduct became aggressive
and the wife feared for her life and the safety of the children. This led to her obtaining a
protection order against him not to a ccess the Craighall residence .
[11] As set out above the intervenors brought an application , (after the report from Dr
Del Fabbro ) which was set down on 5 November 2024. Both parties argued the matter and
I directed that the Office of the Family Advocate prepare and submit a report on, inter alia ,
on the appropriateness of the request that the minor children should relocate to Scotland.
The report was due early December 2024 and the Family Advocate requested an extension
to fin alise the repo rt. The said extension was duly granted. The report was finally submitted
on 10 December 202 4 and the parties were then invited to address the Court and mak e
submissions.
[12] Before addressing the merits of the application , I will address myself to the
question s of urgency and intervention application . The father requested condonation for
the late filing of his opposing affidavit and raised a point in limine that the uncle’s affidavit
was not properly commissioned . The condonation application was granted and intervenors
committed to upload the commissioned copy of the affidavit. I had regard to issues and
submissions by both parties and do not find that they should detain this Court as procedural
formalities should not be used as weapons in matters dealing with interest s of the children .
Urgency .
[13] The intervenors submitted that that the application is urgent, firstly , because Krist en
who has been very close to the children has resigned and would be leaving at the end of
October which she extended to the end of November 2024. Dr Del Fabbro and the therapis t
stated that the children needed a stable environment and cannot continuously be placed
under au pair s. Further that there is an urge nt need to s ell the Craighall residence as it
became expensive to maintain. In addition, since it was the end of the school term in South
Africa it would be appropriate that the children be allowed to relocate and start their new
life in Scotland. They will also be able to start schooling in Scotland in December 2024.
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[14] The father advanced arguments to resist the submissions on urgency and primarily
contend ed that the intervenors have created their own urgency. That the intervenors were
aware of the resign ation by the Kristen and the report by Dr Del Fab bro earlier and should
have then proceeded to court with urgency.
[15] I had regard to the nature of the matter I am seized with and concluded that the
application deserves the attention of the urgent Court and in any event the father launched
a counter -application which required the attention of the urgent court . In the premises both
applications will be dealt with on urgent basis.
Application for the Intervention .
[16] Counsel for the intervenors submitted that Dr Del Fabbro has recommended that
guardianship should be awarded to them . In addition , they have established a relationship
with the children and to this end submit ted that they have demonstrated that they have
interest in the matter . Counsel further contended that the Act provides that any person
having sufficient interest in the care, protection and development of the child may approach
the court to be assigned guardianship and parental rights and responsibilities of the minor
child.
[17] It is settled law that the test for intervention is direct and substantial interest in the
subject matter of the proceedings before the court .2 For the purposes of this application
section 28(3) read with section 28(1) of the Act provides that any person with a sufficient
interest in the care, protection, well -being and development of the child may bring an
application to, inter alia , to terminate the parental rights and responsibilities of a person in
respect of a child. I had regard to the submissions by both parties and concludes a proper
2 Harms : Civil Procedure in the Superior Courts Vol 1, B -112(5); Rule 12 of the Uniform Rules of the Court;
South African Riding for the Disabled v Regional Land Claims Commissioner and Others [2017] ZACC 4 ;
2017 (5) SA 1 (CC) at paras 9 -11.
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case has been made for an order for intervention. The intervenors are therefore joined as
parties in the pending lis.
Submissions and contentions on the merits .
[18] The interven ors were born and bred in South Africa and relocated to Scotland in
2021 together with their 15 years -old son. They plan to apply for the permission to remain
in the United Kingdom indefinitely and will be eligible to acquire British citizenship in
2026 . They are currently renting a three -bedroom house and had plans to acquire a bigger
house in two years. This plan has now changed and with the possibility of the children
relocating to Scotlan d they intend to acquire a bigger house for the children to have their
respective rooms.
[19] The intervenors contended that they are suitable candidates to be awarded the
responsibilitie s and rights in respect of the minor children. They have demonstrated care to
the family of the children and had kept contact with V[...]J[...] and the family prior to her
passing . They were involved in the arrangements for the funeral and paid for certain
services and goods from their own pockets whilst awaiting payments from the insurance
policies taken out by the deceased. They were s ubsequently refunded .
[20] They visited the family and stayed at the residence for a period of 3 hours prior to
the deceased’s passing. The aunt has also stayed at the residence for a period of more than
three weeks after V[...]J[...] ’s death .
[21] They have kept contact with the children consistently via telephone and video calls.
The uncle has a stable job and is running a company , Group Funeral Services (Pty) Ltd
which was previously owned and managed by the deceased’s father. The aunt is employed
in Scotland and due to her good perfo rmance , she was also promoted to a higher position.
In addition, the counsel continued that uncle stated that “[t]he Amber Trust has committed
to overseeing the financial affairs of the children and we are equally dedicated to ensuring
their financial well-being and suppor t” and as such the father will not be required to make
any contribution towards maintenance.
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[22] Their residence in Scotland is situated in a child-friendly location , the standard of
education is high and the level of crime is not alarming as compared to South Africa. There
are better opportunities for the children in Scotland than South Africa. According to the
uncle once they come to live in Scotland “… the world would truly become their oyster”.3
[23] On being asked about the tenure and stability of the accommodation of the
intervening parties the ir counsel argued that they are renting a property as it is difficult to
own properties in Scotland and that is the reason why they have not acquired same. They
will be in a position to rent or acquire a bigger house once the children relocate to Scotland.
It being noted, counsel continued, that ordinarily the children will make contribution to the
bond repayments as it is the case in South Africa that repayment of the bond include s
contributions by the children. In this instance the Amber Trust would make contribution
on behalf of the children.
[24] The relocation of the minor children is being supported by the Family Advocate ,
the executor , the curator ad litem and the children’s maternal grandmother.
[25] Counsel for the intervenors submitted that the father , on the other hand , is not a
suitable candidate to exercise parental responsibilities and rights over the minor children.
He has over a period of time failed to make co ntribution towards the maintenance of the
minor children. He spent money litigating with Amber Trust instead of applying same to
launch a rule 43 application to exert some of the rights including unsupervised visitations
or relaxation of the prescribed intervals .
[26] Furthermore, the counsel con tinued, the father’s financial position is unstable and
he may not be able to financially take care of the children. The father made a claim that he
is employed and has been challenged to produce proof of employment in the form of , inter
alia, payslip and to no avail. He has been absent in the lives of the minor children for a
period in excess of 4 years. He has fail ed to pay for t he monthly bond r epayment in respect
3 See para 99 of the Intervenors ’ Founding Affidavit at CL 32 - 52.
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of the Midrand property for a period of 18 months and the foreclosure proceedings are
looming.
[27] In one of the reports from the Office of the Family Advocate it was recommended
that the resumption of unrestricted contact to the minor children only if the father has been
clean f rom drugs for a period of at least 2 years. Though he submit ted the drug test ’s result s
this was only in respect of CAT and not any other drugs. D r Del Fabbro stated that the
father is abusing alco hol and this was mentioned in his latest report .
[28] Counsel for the intervenors had regard to the report of t he Family Advocate and
summarised certain aspects as follows. First, that K stated that he r father has cheated on
her mother ; that she would wish to relocate to Scotland a s she is aware that Scotland is
safer as compared to South Africa. Counsel submitted further that t he father on the other
hand has been talking bad about the uncle to the children and was also talking bad to the
principal at the children’s school.
[29] In addition, the chi ldren’s grandmother who has been awarded primary care and
residence has relayed her reluctance to continue as ordered by t he Court and ha s left the
Craighall residence.
[30] Importantly , so went t he submissions , the Family Advocate applauded the current
development and efforts by the father in h is relationsh ip with the children. She further
stated that the proposal for a formal re -integr ation is also lauded but it is far too late hence
the children should be allowed to relocate to Scotland.
[31] The counsel acting on behalf of the granny submitted that it is not correct that the
granny is no longer pursuing her claim to be awarded guardianship of the children and
would persist thereon if the Court decide not to award guardianship to the interven ors. In
addition, it is the view of the granny t hat the application by the father has no merits a s he
is not a suitable candidate to be awarded parental responsibilities and rights .
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[32] The curator ad litem submitted that the father was initially not cooperative despite
her efforts to encourage him to participate in the supervised visitations. His reasons were
that his attorney s have advised him not to participate as they believed that the supervised
contact is unwarranted. In addition, he attributed his reluctance to participate in the
supervised visit ation as the social worker was unaffordable. This position has improved as
the new social worker ’s expenses are reasonable and she has also persuaded the trus tees to
assist w ith the funding of t he costs associated with the supervised visitation. Dr Del Fabbro
has also suggested that the supervised visit can be reviewed after the period o f three months
which comes to an end at the end of January 2025 .
[33] The curator stated further s he had challenges in preparing the children for the
interviews with the social worker in compliance with my directive that a further
investigation should be conducted by the Office of the Family Advocate . She consulted
with the children’s therapist and the father . Though they bo th agreed the father cautioned
that such issues may have to await the completion of the examination or be approached
with a measure of caution. With the assistance of the au pair s the issue of the interviews
relating to relocation to Scotland or staying with the father was discussed and the
immediate reaction from K was what about her school and friends. This took place on one
of the Fridays and fortunately the discussion did not negatively affect her prepar ation for
the examination which was on the following Monday as her school results were still good.
[34] The curator ad litem intim ated, when asked by t he Court of Dr Del Fabbro ’s
suggestion , agreed that that supervised visitation can be revisited after three months and
this period would lapse at the end of January 2025. If possible, an independent social
worker could be invited at the end of 3 months to provide a report on progress. She however
disavows possible inference which can be drawn that her sentiments that the social worker
currently supervising the visitation is not independent.
[35] That notwithstanding she agrees with the Family Advocate and the intervenors that
the relationship between the children and the father cannot be salvaged and it is too late to
work on re -integration. The curator persi sted with this stance despite her assertion that the
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father has been cooperat ing and there was progress in the relationship between him and the
children “…which became stable and relaxed ”.
[36] The father’s counsel contended that the submissions by the curator at litem
amounted to presenting evidence from the bar and should not be accepted. The counsel was
given opp ortunity to reflect and make written submissions in response to any aspect of the
submission which he could not address as it was not mentioned before in a report from the
curator. The counsel submission fell short of noting that the Court is at large to consider
any evidence presented before it.4
[37] The father who represented himself at the beginning contended that he has complied
with the condition s set out by the first Family Advocate to be free of drugs for a period of
two years before unsupervised contact is re-considered . He had undertaken drugs test s over
a period of time and came out clean. Further that t he reasons he could not keep up with the
supervised contact was as per advice from his attorney that it was unwarranted and in
addition, he was unable to afford to pay for the services of the s ocial worker as the uncle
and other trustees have terminated his salary, he was receiv ing from the properties owned
with his late wife. His feud with the brother has a long history and started when they fought
over the management and money generated by the company, they both worked for which
was established by V[...]J[...] ’s parents . In addition, so the father argued, the uncle’s
object ive for hi m to fight for the sole gua rdian ship and relocation of the children to
Scotland is to have unfettered access to the Trust money which he would use, inter alia , to
buy himself property in Scotland.
4 It was stated in J v J 2008 (6) SA 30 (C) at para 20 that “[A]s the upper guardian of minors, this court is
empowered and under a duty to consider and evaluate all relevant facts placed before it with a view to
deciding the issue which is of paramount importance: the best interests of the child. In Terblanche v
Terblanche [1992 (1) SA 501 (W) at 504 C ] it was stated that when a court sits as upper guardian in custody
matters…. It has extremely wide powers in establishing what is in the best interests of minor or dependent
children. It is not bound by procedural strictures or by the limitation of the evi dence presented or contentions
advanced by the respective parties. It may have recourse to any source of information, of whatsoever nature,
which may be able to assist it in resolving custody related disputes.”. In P and Another v P and Another [2002
(6) SA 105 ] Hurt J stated that the court does not look at sets of circumstances in isolation: I am bound, in
considering what is in the best interests of G, to take everything into account, which has happened in the past,
even after the close of pleadings and in fact right up to today. Furthermore, I am bound to take into account
the possibility o f what might happen in the future if I make any specific order.
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[38] He contended further that it appears he is fighting against a wall as he has no
funding for his legal representation where as his opponents have access to the funds from
Amber Trust which dispersed funds for all and sundry without him being consulted though
being one of the Trustees.
[39] He managed to ultimately secure services of a counsel who appeared after the recent
Family Advocate ’s report which was compiled at my instance was submitted . The counsel
submitted that the main reason in the lis between the parties was that the father was a drug
addict. This position has changed and e veryone has accepted that the father is clean and no
evide nce could be tendered to gainsay this position. The allegations about alcohol abuse
just cr opped up and appear to be shifting of the goal posts. In any event same is disputed
and the father ’s position is that though he takes alcohol he cannot be considered to be an
alcohol ic.
[40] In addition , there is no basis for the children to be uprooted from th eir birth country
to a foreign country. The curator has already stated the first question raised by K regarding
relocation was what about her school and frien ds. The children would now have to be
introduced to school s which ha ve English as medium of instruction whereas they have been
attending Afrikaans school s. They would also have to be introduced to dreary weather and
be taken away from their close and extended family members including, their father and
friends.
[41] In addition, the uncle appears not to have made any plans for the children . He has
no money to undertake what he has proposed to do as it requires someone with good me ans.
Instead , he has his eyes on the trust funds. He has not been able to afford to acquire a
property ever since he relocated to Scotland and even in South Africa though allegedly
being employed in a senior position . It is correct that he is running the company of the
father’s in-laws but the correct position is that he is running it down a nd it is in the process
of laying off employees. In supporting his denial of the contention , argument continues,
the uncle could have been open to the Court with the financial s of the company and his
own finances but has decided to rebuff same and now wish that the Court should just wish
away the question of their finances .
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[42] To the best of his understanding the reason why the granny had to leave the
Craighall residence was as a result of animosity with Kristen and the curator who hijacked
the planning of birthday planning coordinate d by the granny and passed it over to the aunt
to coordinate. Further that the aunt is the one who in fact kicked the granny out of the
Craighall residence and changed the locks for her not to access the residence .5
[43] In addition , counsel submitted that w hat the court should have regard to is the best
interest of the children. That there is no evidence presented which demo nstrate without any
equivocation that the father has conducted himself inconsistent with what is in the interest
of the children.
[44] The Family Advocate , counsel argued further, has noted that the father has recently
demonstrated keenness to re -integrate with the children but unfortunately is it little too late
and the children must just relocate to Scotland with their uncle. What is lacking, counsel
continued, is the proper foundation for this stance and it is not substantiated.
[45] The counsel for the father further submitted that t he Family Advocate ’s report
categorically indicated that there is no exceptional ly close relationship between the
child ren with either the uncle or the father and now the decision to be made is whether the
children should be with their father or the uncle. The uncle only paid the children a visit
for only 3 hours in 2023 and followed by aunt over three weeks in 2024. The intervenors
have not been in the live s of the children and cannot claim to be better that the father . The
report by t he Family Advocate painted a good and positive picture of what the curator has
observed in the relation ship between the children and their father . Further that the children
have demonstrated a since re desire to be with the father and spen t time with him.
[46] Counsel further argued that t here is no evidence currently which demonstrate s that
the father has shown a wayward behaviour which is inconsistent with what is in the interest
of the children. The Family Advocate has stated that there is no diagnosis of mental illness
5 See para 76 of the Affidavit.
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and that the social worker who has been supervising the visits is in general satisfied with
progress to date.
[47] Lastly, so counsel continued, whilst the perspective s of the children should be
considered no t much weight should be attached thereto . They are young, vulnerable and
can be easily influenced. In addition, it is applauded that the curator has testified that the
performance of the children at school has not been negatively affected by their situation
and as such there is no basis to interrupt such performance by uprooting the children from
their conducive and familiar environment.
[48] Counsel for the intervenors in reply submitted that despite the fact that there is no
diagnosis for the any mental illness the Court should not ignore the report by Dr Del Fabbro
that the father has disorders. In addition, what would work against the decision to have
their father in their lives is the fact that the au pairs have stated that they are not ready
and/or available to work with the father.
[49] On being asked by the Court f or the intervenors’ refusal to provide the ir address in
Scotland the counsel submitted that the father has the tendencies of behaving badly and
would , once informed of the address , go all out to frustrate the intervenors’ intentions. By
way of illustration of the father’s unacceptable behaviour he also terrorised the curator ad
litem with emails even though she mentioned that she was admitted at a hospital. The only
time when the address would be made known , especially for the father , is after the Court
has made an order that the children should relocate to Scotland with the uncle. In the
meantime, the address can only be made available to the Court.
[50] When asked by the Court as to why the uncle did not present any evidence of their
financial stability and affordability as demanded of the father, counsel argued that what the
intervenors have stated about their finances has not been challenged and therefore the Court
should accept their version . The co mparison with t he father ’s situation would also not be
appropriate as the evidence has been presented showing that the father’s finances ha ve been
perilous at all times.
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[51] The counsel for the intervenors was flabbergasted by the contenti on by the counsel
of the father that the children’s version should be accorded less attention. She submitted
that the children may still be young but there is a forest of authorities stating that the
children’s views should be invited and considered . Section 10 of the Children’s Act decrees
that their perspective need to be taken into consideration .
Issue s for determination
[52] The issue for determi nation is whether the parties have made up a case for th e relief
sought in their respective applications for the granting of the parental responsibilities and
rights and the relocation to Scotland.
Legal principle s and analysis
Interest of the children
[53] It is trite law that the overriding consideration where there are dispute s regarding
the minor children is the interest of the children and not of the disputants.6 The courts have
over time emphasised that stability in the lives of children is of paramount importance
though not an exclusive f actor or etched in stone. The children’s existing environment
should not readily be disturbed, and any unnecessary moves should be discouraged and
avoided on the grounds of security and stability.
[54] In general , parental responsibilities and rights7 may be terminated for the following
reasons, financial neglect8; emotional neglect and abuse9 and physical neglect and abuse10
6 See section 28 of the Constitution and section 9 of the Children’s Act. It was held in LH and another v LA
2012 (6) SA 41 (ECG) at para 1 2 that the best interest of the child have remained the determining the best
interest of the child would generally be established with reference to the check list of factors set out in section
7 of the Act.
7 Section 18(2) of the Children ’s Act provides that p arental responsibilit ies and rights include the right and
responsibility “…to care for the child; to maintain the child; to act as a guardian of the child; and to contribute
to the maintenance of the child ”.
8 Failing to attend to the financial needs of the child.
9 Display ing emotional neglect, abuse, or expose their children to harmful situations .
10 Failing to provide basis physical, intellectual, emotional and social needs and or engage in physical abuse.
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Intervenors
[55] The c ounsel for the interven ors contended that no evidence was presented to put
into question the ir financial position but this is not correct as the father did argue that the
intervenors’ financials have not been disclosed. Further that to the best of his belief the
intervenors’ have their eyes on t he Trust funds. T he Court has to be persuaded that the
interven ors have the financial capacity to cater for themselves , let alone to provide for the
primary care needed by the children. Moreso that one of their main arguments is that the
father has no fin ancial means to take of the children. What is clear for now is that the
intervening parties have been in Scotland for 4 years and have not secured a house of their
own. They would only get a bigger house once the children relocate to Scotland. In retort
to the Court asking counsel for the intervenors submitted that the Trust monies would
contribute to the acquisition of the property. Th is was because, so counsel continued, that
even in S outh African law a child may share in the contribution for th e payment of the
bond. This lend credence to the argument by the father that the intentio n of the intervenors
is to have access to the Trust funds. The intervenor s need to demonstrate their financial
position that they are able to provide proper accommodation in Scotland without exploiting
the funds in the Trust.11 It is noted that counsel for the intervenors stated that it is indeed
expensive to acquire a property in Scotland .
[56] It is disconcerting that the interven ors submit that the Court should be able to order
relocation without any details of the where the children would be staying. The description
they posited is just a general exposition of the said unknown area or locality. This
information cannot even be made available to the father who is entitled to assess and make
submissions whether it is suitable for his children before the Cour t makes its conclusion.
The said information has not been given to the Family Advocate and to this end the Family
Advocate appears to have been denied an opportunity to make an assessment of whether
the suggested place would be suitable for the children.
11 Mr Henk having informed the Family Advocate at para 122 that Groupex Holdings’ shares are registered
in the name of the Trust, it has many expenses with a minimum share value and the intervenors did not take
umbrage with this perspective .
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[57] The intervenors should have provided evidence that they qualify to acquire a new
and bigger house12 and further submit a report from Scotland to appraise the Court that
their residence and position is appropriate and suitable for them to stay with K and C. If
they do not qualify , they should be able to demonstrate how much of the trust funds would
have to be applied for the acquisition of the house. If the order is granted for relocation , it
means that the children would have to share a bedroom , something which they may not be
used to.13 Absent any indication that the intervenors would qualify for a bigger house any
decision that relocating to Scotland would be in the interest of the children would be based
on conjecture an exercise which am loathe to consider . The children would also be placed
in a cramped three -bedroom house which is different from their current set up.
[58] The relationship between the uncle and the father appears to be very toxic (and not
your ord inary siblings’ rivalry) and its history can be gleaned from the following factors ,
their battle s as directors of the family company, accusations , inter se , their battle a s trustees,
refusal by the intervenors to provide the father with address where they are staying in
Scotland and the intention to permanently terminate the father’s rights. The funds in the
Trust may also be flaring the battle between the uncle and his brother . Based on their
previous experience and his alleged mischievous propensities the uncle b elieves that if the
address is made known to the father now , he will do all to frustrate the possible relocation.
The trustees have refused to assist with the funding of the supervised contacts but are
prepared to use the funds to pay for the legal costs of other parties. Even more worrying
and strange is the fact that the order sought by the intervenors include that the Trust should
fund the supervised contact of the father with the children after relocating to Scotland.
Though th e court ordered that the granny and third respondent pay for costs the trustees
reimbu rsed th ose costs as it was incurred in the interest of the children. To this end the
prima facie view is that the application for relocation may not be bona fide.
[59] The intervenors further argued the requirements for sole gua rdianship is required
by the UK immigration regulations without providing any supporting authorities or
12 Noting that it was all times being their plan to acquire a bigger house .
13 It was stated in P and another v P and another 2002 (6) SA 105 (N) where accommodation is cramped
same would not be suitable for the children.
18
reference thereto. To this end it appears that the intervenors enjoins the Court to decide
without presenting p ersuasive evidence and this invitation is bound to be declined.
[60] The contention that the granny is out of the picture and that there are two parties
fighting for parental responsibilities and rights , and that the recommendation of the Family
Advocate should be accepted is unsustainable as granny has stated that her counter -
application is not withdrawn. In addition, as will be shown below the recommendation s by
the Family Advocate are not cast in stone.
The position of the father .
[61] The co ntention that there has not been any contact over a period of 4 year s by the
father is unsustainable as Ms Kirstyn Layton informed the Family Advocate recently that
“[S]he supervised several contact sessions during 2020 and 2021 and provided supervision
for the majority if not all of the sessions in 2023 and 2024 ”14, prior the passing of the
mother.
[62] It is not in contention that the critical and worrying fact to the late V[...]J[...] was
the drug abuse which she considered as endangering the lives of the children. She took
effort even to get the father a dmitted in to a rehabilitation centre . The abuse of drugs was
also the basis for the recommend ation by the Family Advocate availed to Pretorious AJ
that the contact should be supervised. The current evidence suggest s that drug abuse is no
longer an issue and all the parties appear to be in agreement. The father c an therefore be
considered a recovering addict.
[63] The explanation proffered with regard to the precarious financ ial situation seem to
have been due to various factors, including , his salary being terminated by the trustees
which include the uncle and having to be involved with the trustees in litigation matters for
the access to the funds and his entitlement. The current financial position is questioned by
the intervenors and the father could have at least present ed more persuasive evidence
14 See para 129 of the Family Adv ocate ’s Report
19
including and not limited to payslips. Just like the intervenors the father is also accused o f
eyeing the trust funds to augment his precarious or perilous finances.
[64] In his favour is the fact that he is no longer into drugs and both Family Advocate ,
curator ad litem and the current social workers have noted progress in his. relationship with
the children. But both the curator ad litem strangely15, together with the Family Advocate
states that it is a bit late for the re-integration with the children and as such they must just
relocate to Scotland. This stance is not founded on any tangible evidence or argument. The
children appear to have performed well at school , they still prefer their current place of
abode and progressing well with the ir relationship with their father .
[65] It is still unsettling as reported by the Family Advocate that he lack proper
communication skills a s shown by the uttera nces he made to the principal and his continued
blame game of all and sundry , despite that his situation was a result of his own making.
[66] Termination of parental responsibilities and rights has far reaching implications and
cannot be granted lightly. Evidence has been presented that there is improvement by the
father in his relationship with the children . The children stated that things are improving .
The Trust is funding the visitation. Dr Del Fabbro said16 that the arrangement for a
supervised contact should be revisited after three months which would be the end of
January 202 5. W ithout underplaying the role of a stable family setting of having both
parents this cannot be used to persuade the Court that it would be interest of t he child to
relocate to Scotland on the assumption that at least there will be the proverbial ‘oysters ’ for
the children . It is noted that both the father and mother were not very close to the children
and even with their absence the school performance has not been rudely interrupted.17
Curator ad litem
15 As she went all out to assist and acquire the services of a social worker who is affordable.
16 As stated by the Curator ad litem.
17 Krist en informed the Family Advocate at para 84 that “she and the minor children were able to bond quickly
because …[V] was extremely busy and not at hone very often. ”
20
[67] The curator a ppears to have outsourced some of her respon sibilities to the
intervenors who are now running the Craighall residence . In view of the litigation between
the parties and being alive to the possibility that the Court ’s decision may go against the
intervenors exposing the children to intervenors may inculcate in their minds that
intervenors are their future may not be in their best interest . The fact that she also supports
relocation without knowing the circumstances of the forwarding address is worrisome. All
this may give an inclination as advanced by the fa ther that her independence is becoming
compromised.18 The fact that she encouraged the granny to leave the Craighall residence
(which is contrary to the Court order ) due to conflict with Kristen , , created an opportunity
for the aunt to take over the granny’s responsibilities as per Court order.
[68] That notwithstanding, all is not lost as she made efforts to persuade the trustees to
cater for the supervised visitation’s expenses and continuously encouraged the father to be
involved despite the father’s alleged difficult disposition .
Office of the Family Advocate .
[69] Section 29(5)(a)19 of the Children’s Act empowers the court to requ est a report to
be compiled by the Family Advocate , a social worker or suitably qualified person which
may assist the Court when resolving a dispute impacting on the rights and interest of the
minor children. It was against this background that I issued a directive inviting the Family
Advocate to investigate and report to the court.
[70] The recommendations from the Family Advocate are important to the Court but the
Courts are always at large and may depart from the said recommendations. The SCA stated
in Z D E v C E20 that
18 Now that t he Trustees have resolved to pay for the Curator ’s services , they wouldn’t expect the curator to
act in a particular as she is enjoined to remain independent, object and do all in the interest of children without
favour. The Court would also frown at any party withdrawing payments on the basis that the curator is acting
objectively .
19 The Court “ May for the purpose of the hearing order that a report and recommendations of a family
advocate, a social worker or other suitable qualified person must be submitted to the court.”
20 (1011/2022) [2024] ZASCA 159 (18 November 2024) ; JDR 4976 (SCA) .
21
“The reports and recommendations of a Family Advocate are undoubtedly of great
assistance to a court in determining the custody arrangements that will serve the
best interests of the child. However, the court is not bound to follow the said
recommendations and retains its own discretion. The court sitting as upper
guardian, may as in this case, call evidence mero motu to assist it in the judicial
investigation to establish what is in the child’s best interests .”
[71] The interviews and the report on the statements of those interviewed demonstrate
that the Family Advocate went an extra mile in compiling a report which , as requested by
the Court on short notice , was intended to shed light or guidance on the issues between the
parties and recommendation regarding relocation . The efforts are laudable.
[72] Amongst those interviewed by the Office of the Family Advocate includes the
children who are the subjects of the litigation. Section 10 of the Children’s Act
emphatically enjoins the Court to have regard to the wishes of the children with regard to,
inter alia , where they would wish to reside. This should be dependent on their age and their
ability to appreciate the issues at hand . In this case it is noted that C appears to be
indifferent and is prepared to stay either with his father alternatively his uncle. On the other
hand, K stated that she would wish to stay with the uncle in Scotland whereas in other
instances stated that she would prefer to stay at the Craighall residence , further that the
relationship with father has improved .
[73] The curator ad litem stated , when asked by the Court , that K appears to have stated
that Scotland is safer than South Africa as she carried out research by herself and this is
inconsistent with what the uncle stated before the Family Advocate21 which is that he is the
one who informed K that Scotland is safer.
[74] Due to her age, she could be easily influenced and her response appears to depend
as to who is eliciting the information. Views of the children should therefore be considered
having regard to the totality of factors and evidence presented to the Court.22
21 This report was also available to all including the curator.
22 The Court in P and Another v P and Another 2002 (6) SA 105 (N) version of the child who alleged sexual
assaults by the uncle did not persuade the Court to deny the said uncle primary residence.
22
[75] The Family Advocate in summation noted that the issue of the drug abuse is no
longer of any concern. Further that the relationship between father and the children seems
to be improving.23 Despite this the Family Advocate felt that it was a bit late to re -integrate
the children with their father and to this end recommended that the prayers as requested by
the intervenors should be granted.
Conclusion
[76] In conclusion I am concerned about the uprooting of the children from their familiar
environment and also losing sight of various factors as raised by the father, e.g. the question
of language , unfamiliar weather, their familiar environment with school, their residence,
friend s and extended famil y members and t he fact that re-integration is still possible. It also
means that the children will be cramped during the period when the intervenors commence
their efforts to look for a bigger house. At this point in time the order that the children
relocate to Scotland would be based on insufficient information to determine if that it is in
the interest of the children .
[77] Dr Del Fabbro recommended that the children remain in the country and together
with the therapist refused to support the wish for the relocation.24 Further that guardianship
should be given to the intervenors who should visit frequently. The reluctance by Dr Del
Fabbro to support relocation is telling . It cannot therefore be argued that now that the
children are in an unstable set up without both parents that they must just be shipped to an
area unknown (and not assessed of its suitability) to the Court25 and/or the father and/or the
Family Advocate to the intervenors who are not better off as compared to the father .
23 Family Advocate stated at para 194 that “it is not disputed that … [father] had a meaning ful relationship
with those children at the time of his separation from their mother. Even now, the minor children are
comfortable interacting with him and his fiancée. The minor children view … [father] as a positive f igure
and have a sincere desire to spend time with him and there is no information to suggest that they do not enjoy
his company, at least on the fact of it .”
24 The therapist informed the advocate that despite what K’s preference appears to be she does not believe
the children have fully developed concept or understanding of w hat is taking place. See para 138 of the
Family Advocate’s Report . The Family Advocate also added at para 200 that “Nevertheless, I acknowledge
the therapist ’s opinion that a recommendation cannot be based on how the minor children feel ”.
25 It is noted that the intervenors were prepared to provide the court the address.
23
[78] The similarities between the two brothers is that with g uardian ship they would both
have access to the trust fund and would not have financial woes in taking care of the
children financially . Seeing that the current supervising social worker has returned positive
feedback about the supervised contact there is no valid reason to prefer the brother in
relation to the father . The fact that the intervenors have been g iven a latitude by the curator
to spend time with t he children recent ly cannot justify the submission that the progress
made by the father in establishing relat ionship with the children is of no value to the
children and th at it should be jettisoned . This does not imply that it is guaranteed t hat the
father may not relapse. The re -integration should therefore commence and be reviewed
within a period of 3 months of the order. In the process the father should to undergo
monthly tests for alcohol abuse and drug tests .
[79] Having regard to the conclusion arrived at below it is advisable for the intervenors
in the event they wish to conten d for the parental responsibilities and rights be awarded to
them in future they should therefore prepare and present concrete evidence that they will
be able to affor d a bigger house in Scotland and also present comprehensive plans for the
children, including the schools to be attended, a report by the relevant authority in Scotland
that their situation is suitable for the ir intended wish . A visitation could also be arranged
for the children to visit Scotland for a shorter period so that the children can also assess the
place.
[80] It is noted that the Krist en would be resigning effective from end of January 2025
and has previously extended her notice since end of October 2024 to the end of November
2024 and no w to the end of January 2025 . It is further noted that she was not alone and was
assisted by both Sandr a and the housekeeper in taking care of the children . Though she is
deemed to be the one closer to the children it appears that Sandra has been considered
equally important hence the intervenors suggested that she (and not Krist en) should
accompany the children and stay with them in Scotland for a while. The absence of Kristen
due resignation would also take away the basis for which the curator encouraged the granny
to move out of the Craighall residence.
24
[81] The granny having persisted with her application the order of Pretorius AJ may
have to remain. It is noted however that she is elderly but should remain responsible for
the care of the children who will remain at Craighall residence until another person is
awarded parental responsibilities and rights alternatively pending finalisation of the re -
integration process . It is noted that due to her age she may not take permanent appointment
and she is preferred in comparison to both the uncle or the father who are all fighting for a
permanent arrangement . It is clear that she has received sufficient funds from the
deceased ’s policy and this should dissuade her from hoping to spent the trus t fund for own
benef it. She will be assi sted by the curator who se respons ibilities have been detailed in
annexure A to the order of Pretorius AJ. To the extent that the curator finds her powers
wanting she may approach the Court to augment same. This would include having to
appoint a case manager if necessary. With the object of avoiding the process becoming
prohibitive, further attempt s should be made to have the Amber Trust absorbing the costs
associated with re -integration with the father.
Costs
[82] The parties appeared to have generally presented their versions , bar my res ervations
with regard t o the bona fid es of the intervenors, for the Court to arrive at a decision which
best caters for the interest of the children. I therefore find that no costs order should be
made against either of the parties and this applies to costs reserved by Pretorius AJ. If the
Trustees resolve d to cover legal costs for the interven ors it may be proper that the legal
costs of the father should be covered on the same basis that the interest of the children were
at stake and legal and proper submissions were important to enable the Court to come to a
correct conclusion. The same reasons which the Trustees advanced for the motivation to
use the trust money to reimburse the granny and the third respondent which has the effect
of thwarting clear terms of the Court order that the y pay for the l egal costs .
[83] That notwithstanding the trustees (being inter alia, the uncle, granny and second
respondent ) who have participated in the lis in whatever capacity did not quarrel with the
relief sought by the intervenors that costs associated with supervised contacts after
relocation (including relocation and possibly acquisition of the property in Scotland)
25
should be paid by the Amber Trust. I therefore see no reason why costs associated with re-
integration should be considered differently by those parties as the ultimate object is to
benefit the children. Unless the best interest of the children is dependent only on
guardianship being awarded to the intervenors. This would certainly be preposterous. The
interest of the children should not readily be frustrated on the basis that the father may be
impecunious26 though the expenses assoc iated with supervised contacts should preferably
be dealt with as is currently agreed to between the curator and the Trust. A rough sketch of
costs for re -integration , though not properly introduced to the Court did no t present possible
costs which may be associated with the relocation and therefore present a skewed
perspective .
[84] It is impressed on the curator to ensure that the costs of the exercise as directed by
the Court should be minimal and not exhaust the Amber Trust. To this end if appropriate
she must consider whether it is necessary to appoint a second au pairs after Kristen ’s
departure . In addition, and where experts are needed (e.g. case manager) such experts may
be app ointed through the relevant government departments where possible to provide
necessary expertise at no charge .27 Re-integration should therefor e be commenced
immediately by the curator sourcing three experts from which the father and gra nny would
chose one failing which the curator will with proper motivation appoint an expert to
unde rtake re -integration with the sole purpose of restoring the relationship between the
father a nd the children .
Order
[85] The following orders , substituting the order of Pretorious AJ save as set out herein ,
are made :
85.1 Application by the intervenors is dismissed ;
85.2 The re-integration process for a period of 30 day s should be commenced
within 5 days of the order coordinated by the Curator who shall provide a list
26 Noting that as a beneficiary his status may have not been finally determined by the Courts or his entitlement
to share in the estate of his late wife.
27 It is noted and applauded that the curator has succeeded in appointing a social worker whose fees were
affordable to the father.
27
For the First Respondent : Adv N Strathe rn.
Instructed by Ulric h Roux and Associates
For the second Respondent :Strydom & Bre denkamp Attorneys