IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION, MAKHANDA
NOT REPORTABLE
Case No.: CA04/2024
In the matter between:
YCM Appellant
and
NDN Respondent
re:
LM First minor child
AM Second minor child
JUDGMENT
EKSTEEN J:
[1] It has been said that ‘grandparents , like heroes, are as necessary to a child’s
growth as vitamins’,1 but the appellant does not share this sentiment. The respondent,
Ms NDN, applied, successfully, in terms of s 23 of the Children’s Act 2, to the children’s
court in Makhanda to be granted contact with her two minor grandsons, LM and AM (the
boys), born to her deceased daughter, Bokkie (the deceased), from her union with the
appellant. The magistrate granted he r contact with the boys, telephonically or on a
multimedia device at least once per week; by visitation in Makhanda at least once per
month for a day; and by taking the children to her home in Hers chel for at least a week
during the June/July school holi day and the December/January school holiday. The
appellant was aggrieved by the result and appealed against the order.
[2] The application in the children’s court was launched on affidavit and both Ms
NDN and Mr YCM filed affidavits. The presiding magis trate directed the Eastern Cape
Department of Social Development to conduct an investigation to establish the
circumstances of the boys, Mr YCM and Ms NDN 3 and that the matter proceed by
evidence viva voce. A legal aid representative was appointed4 to represent the interests
of the boys , and Ms NDN instructed an attorney to act for her. As recorded earlier, Mr
YCM is himself a practi sing advocate and he appeared in person both in the children’s
court and in the appeal. Ms NDN and one of her adult grandchildren, Ms MN testif ied in
support of the application. Mr Ncana, a social worker in the employ of the Eastern Cape
department of social development prepared a report that was admitted in evidence5 and
he testified at the hearing. In compiling his report, Mr Ncana enlisted the assistance of
a colleague, Ms Dyan, also a duly qualified social worker in the employ of the Eastern
Cape Department of Social Development, who investigated the circumstances of Ms
NDN and her home and family environment in Herschel. 6 Ms Dyan, too, prepared a
1 A statement attributed to Joyce Allston
2 Children’s Act, 38 of 2005.
3 See s 62(1) of the Children’s Act.
4 In terms of s 55 of the Children’s Act.
5 In terms of s 63(1) of the Children’s Act
6 In terms of s 62(1) and (2) as read with s 63 of the Children’s Act.
report that was admitted in evidence. 7 Mr YCM did not testify , nor did he call any
witnesses in support of his case.
[3] The deceased had, in life, been a professional nurse employed by the South
African National Defence Force (SANDF) and carried the rank of Captain at the time of
her death. She met Mr YCM, at the time a member of the Special Forces Unit of the
SANDF, in 2013, when he attended a training course at the military base in Makhanda.
Although they were never married , they entered into a romantic relationship and, as I
have said, LM and AM were born of their union , on 28 November 2016 and 31 May
2018, respectively. They were in the care of the deceased at the time that she tragically
died in a motor vehicle accident on 22 Ma y 2022. The children are currently in the care
of Mr YCM, their legal guardian, in Makhanda , where they live , and Mr YCM has a
practice as an advocate. They are well cared for, have a stable home and family life
and Mr YCM has been described as a good fa ther. LM needs specialist education as
he presents with symptoms of autism spectrum disorder, but his educational needs
appear to be well met in his current schooling environment.
[4] Ms NDN is a retired nurse and midwife. She has worked extensively in hospitals
in South Africa and in the United Kingdom and currently lives in Hers chel, near
Sterkspruit, in the Eastern Cape. She is a widow and lives alone in a large house with
four bedrooms, a bathroom, a kitchen and a lounge/dining room , which is fully
furnished. It is situated on a large plot and there is a second dwelling on the premises,
occupied, during the week , by her son . She is in good health , both mentally and
physically, and said that she is well able to look after the children whilst they a re in her
care.
[5] Notwithstanding the duration of the relationship between Mr YCM and the
deceased, there was very little interaction between Ms NDN and Mr YCM. As
adumbrated earlier, Ms NDN had been employed in the United Kingdom throughout this
period. She said that she had remained in contact with the deceased throughout. They
7 In terms of s 63(1) of the Children’s Act.
had written letters to one another and spoken telephonically . She had returned to South
Africa at least twice each year, usually in the middle of the year and again in December.
On each occasion that she returned she had seen the boys , either on a visit to the
deceased, or when the deceased came to visit her in Herschel.
[6] Ms NDN said that she had always been a part of the lives of the boys and
explained that in December 2016, just after LM had been born , she had returned to
South Africa and to her home in Herschel , where the deceased and LM visited her. LM
appeared to be a little emaciated and was not drinking well. Thus, Ms NDN explained
that she had trained the deceased to breast feed. When the deceased had to return to
her employment, Ms NDN accompanied her and stayed with her in Soshanguve , where
she lived at the time, for approximately four months to support her and the child.
[7] She recall ed the last Christmas with the deceased in December 2021. The
deceased, she said, had been on standby duty over Christmas but did manage to visit
the family in Hersch el, together with the boys, for one weekend. This visit is
corroborated by the evidence of Ms MN, although she was unable to recall that Ms NDN
had been present on th is occasion. Ms MN said that the deceased and the boys had
again visited the family in H erschel in April 2022, a month before she died. Ms NDN
described her family as a close-knit unit and said that she had maintained a bond with
the boys throughout their lives. She produced in evidence a number of photographs of
the boys, and other members of the family that she had on her cellphone , some taken
by the deceased and forwarded to her, and others that had been taken of the children
and the deceased at her home in Herschel. Her account of the cohesive family and
their interaction with the deceased and the boys was corroborated by Ms MN.
[8] Ms NDN was in the United Kingdom when the deceased died. She returned to
South Africa and lived in the home of the deceased in the mil itary base in Makhanda for
approximately six weeks, amongst other things, to arrange the funeral. During this time,
the boys stayed with her , and when she returned to Herschel , in mid-June 2022, they
remained with Mr YCM in Makhanda. She asked him to allow her to have the boys stay
with her in Herschel for a week in the school holiday in June or in Septe mber. Mr YCM
had no difficulty with the request and agreed that they could visit her in Herschel in
September. However, in August he wrote to her and recorded:
‘I remember that I did promise d. Unfortunately that won’t be possible. I have
decided to cut all ties with N…. family and I am doing that for the well -being
of my children.’ (Sic)
Hence the application.
[9] Mr YCM suggested in his affidavit and in cross -examination of Ms NDN and Ms
MN that there had never been any relationship between the deceased and the boys, on
the one hand, and Ms NDN. He accused her of misleading the court and suggested
that the deceased had resented he r mother and disassociated herself from her family.
However, as I have said, he did not present any evidence in support of this claim.
Rather, he said that his case is based solely on legal arguments and he did not think
that he had a case to answer.
[10] Ms Dyan investigated the circumstances of Ms NDN in Herschel. She supported
the application and recommended that contact by Ms NDN with the boys would , in her
view, be in the best interest of the boys. Mr Ncana made a similar recommendation.
Ms Mlalandle, for the boys, too, supported the application.
[11] The account of Ms NDN and Ms MN stands largely uncontradicted. The thrust of
Mr YCM’s resistance to the relief in the application, and in the appeal, was to be found
in the alleged animosity that exists between himself and Ms NDN. The foundation for
the argument was the report of Mr Ncana. In his evaluation of the situation, Mr Ncana
recorded the existence of ‘deep anger, resentment , and arguments’ between the
parties8, but he nevertheless supported the application and recommended that Ms NDN
be granted reasonable access to the boys . Mr Ncana testified at the enquiry and was
subjected to cross -examination, but the factual foundation of this conclusion, that there
was anger and resentment between the parties was never explored. In his affidavit filed
in the enquiry Mr YCM made no reference to any anger or resentment on the part of Ms
NDN and it was not suggested that the boys had ever been exposed to any argu ments.
He did, however, record his own feelings as follows:
‘I need to state this to the court, I do not like the applicant because of how my
late partner was towards her, all the anger she had with her and I do not want
anything to associate myself with her and I will never share a space with her.
…
The Applicant left her martial home and went to England , leaving her
husband who was sick all by himself, he later died, and sh e did not even
attend his funeral. Those are other reasons that my late partner did not like
her and I do not want my children to have any contact with her.’
[12] During the cross-examination of Ms NDN , Mr YCM referred to the conclusion
expressed by Mr N cana of existing anger and resentment, and the record then
proceeded:
‘Mr M: We will never be in a position to talk, accept. There is animosity
between the two of us, is that correct? That is the point that I am
trying to. May the Court assist (indistinct).
Ms N: There is no animosity really . B ecause I do not hold anything against
you. What I need is just to see my children, that is all.
Mr M: Let us proceed. Just last question, Your Worship.
8 Mr Ncana reported: -‘Based on the deep anger, resentment and arguments that exist between the
biological father of the children and their maternal grandmother, it is virtually impossible that the parties
involved will reach an agreement that may lead to co-parenting between them’.
Ms N: I do not know about you.
Mr M: Just for the reco rd I personally do not think you and I will ever be in a
position to talk about anything.’
[13] Neither the viva voce evidence nor the affidavits filed raised any incident
demonstrative of anger or resentment on the part of Ms NDN or any members of her
family. The evidence to which I have referred that is uncontradicted, is of a healthy
relationship between the deceased and the boys, on the one hand, and her mother on
the other.
[14] In his affidavit Mr YCM had suggested that the application was resisted primarily
for safety of the children. With reference to the relief sought, in particular the visitation
rights over the holiday, Mr YCM recorded:
‘This is absolutely shocking that I had to share my parental rig hts with
someone that my children do not know. The only visitation that can be made
is visiting the children in a safe environment like a Police station and I can
facilitate that.
My children are very young, and they are not in any position to distingu ish
between the right person and a wrong person and to tell me on what did they
eat or who gave them food. I strongly oppose this application mainly for the
safety of my children.’
[15] The reason for this apprehension is not readily apparent and he did not refer to
any act of physical violence allegedly committed by Ms NDN, nor to any incident of food
contamination. The issue of the safety of the boys was not pursued in cross -
examination. M r Ncana said that he could not find anything to suggest that th e boys
would be subject to any form of abuse if they were to visit Herschel , and he concluded
that Ms NDN had only their best interests at heart. Accordingly, he was of the view that
there was no reason for supervised access. Notwithstanding his opinion , Ms Dyan
tendered in her report, that the Lady Grey office of the Department of Social
Development would avail themselves to render supervision and after care services to
the family, if required. Ms Mlalandle, who represented the interests of the boys al so
supported the relief sought on the strength of the evidence adduced.
The order of the children’s court
[16] At the conclusion of the trial the children’s court issued the following order:
‘1. The Applicant be allowed to contact the children telephonically at least
once a week ; on a telephone or a multi -media device through the
Respondent;
2. The Applicant be allowed to visit the children in Makhanda at least
once a month, for a day;
3. The Applicant be allowed to have the children visit in her home in
Herschel for at least a week during the June/July school holidays and
December/July school holidays.’
I shall revert to the form of the order.
[17] In the appeal Mr YCM contended that the ma gistrate had erred in finding that it
was in the best interest of the boys to have physical contact with Ms NDN and that she
had incorrectly interpreted and applied s 23 of the Children’s Act. Accordingly, Mr YCM
acknowledged, during the course of his arg ument, that the appeal was not directed at
paragraph 1 of the order.
The legal argument
[18] That brings me to the legal argument. Mr YCM referred us to S v L 9 where
Mullins J said that the power of the supreme court as the upper guardian of minor
children, is not unlimited, in the sense that the court may not interfere with the decision
made by the guardian of the child merely because it disagrees with that decision. This
conclusion was based on the test set out in Calitz10, and the case s that follow that
reasoning.11
[19] However, there has been considerable development in the law relating to access
to children in a changing society , particularly over the last thirty years. Accordingly, to
address the argument , it is necessary to have regard to the salient features of this
development. Calitz was concerned with the custody by the father of a legitimate child
in a situation where the parents were neither divorced nor judicially separated. In that
context, Tindall JA looked to the Scottish law, which he presumed to correspond with the
South African law. He quoted with approval the common law position expounded in
Nicolson v Nicolson,12 in Scotland, where it was said:
‘The legal right to the custody of a lawful child is in the father. But that right is
not absolute, it is not beyond the control of the law. It is within the power of
the Court to mitigate the severity of the general rule by interfering in
exceptional cas es. The exceptions must be few and must rest on clear
grounds … . When the interests of the child in regard to life, health or morals
have required it, the Court refused to permit the father to retain the
custody.’13
[20] Calitz was intended to address the issue of a custody dispute between parents
during the subsistence of a lawful marriage , and it turned on the preservation of the
9 S v L 1992 (3) SA 713 (E) at 721. S v L was not a case concerned with custody of or access to children.
It was an application to compel a custodian parent to subject her child to blood tests in order to determine
paternity.
10 Calitz v Calitz 1939 AD 56.
11 See S v L at 721A-I.
12 Nicolson v Nicolson (1869) 6 Sc. LR 692 (Ct Sess).
13 At 693. See Calitz at p, 64.
integrity of the marital family.14 In S v L Mullins J observed, correctly, that a long line of
cases followed the Calitz decision, save that the exceptional cases were not limited to
life, health and morals. However, courts have tended to apply the test to any
interference with the right of a custodial parent 15 to custody, also where access was
sought by a father of a child born out of wedlock or a non-parent.
[21] The effect of the Calitz decision was that, for many years, the father of a
legitimate child had a right of access that would only be limited in exceptional cases16,
whilst an unmarried father had none , and a court would only grant him access where
there was very strong ground compelling it to do so. 17 Thus, an unmarried father, or a
non-parent, seeking access to a child bore an onus , and was required to addu ce
evidence to show that the custodial parent was so unfit to exercise exclusive parental
authority as to render the case exceptional.
[22] However, in B v S18, after stating the common law position that a right to access
was an incident of parental authority,19 Howie JA, relying on English cases,20 questioned
the substance of this right. He concluded:
‘[N]o parental right, privilege or claim as regards access will have substance
or meaning if access will be inimical to the child's welfare. Only if access is in
the child's best interests can access be granted. The child's welfare is thus
the central, constant facto r in every instance. On that, access is wholly
dependent.’21
14 At p. 64 Tindall JA said: “The non-existence of the common home, brought about as it has been by the
wife’s unlawful desertion is not a factor which a Court of law can allow to operate in her favour on the
question of the custody of the child. … [S]he had no just ground for leaving her husban d, her duty is to
return to him and look after her child under his roof.”
15 In the case of an illegitimate child the right to custody vested in the mother.
16 F v B 1988 (3) SA 948 (D) at 950.
17 F v B at 950 and B v S 1993 (2) SA 211 (W).
18 B v S 1995 (3) SA 571 (A).
19 At p 575D-E.
20 A v C [1985] FLR 445 (CA); Re KD (A Minor)(Ward: Termination of Access)[1988] 1 All ER 577 (HL).
21 At 581-582.
[23] Thus, the Supreme Court of Appeal (SCA) held that the legal difference between
parties with parental authority and unmarried fathers, who had no parental authority ,
was more illusionary than real. It said:
‘It is true that the father of a legitimate child has a right of access at common
law …, with which right he can confront the mother if she refuses access. But
that right will be to no avail if for any reason she persists in her refusal. He
will then have to go to Court for an order enforcing access. If access is found
to be adverse to the c hild's welfare, he will fail. By comparison, the father of
an illegitimate child who considers access is in the best interests of the child
can confront the mother with the contention that he should, on that ground,
be granted access. If she refuses to con cede that, he will have to go to Court
to obtain an order granting him access. As in the other example, he will fail if
access is not in the child's best interests.’22
[24] Thus, after 1995 , it was of no consequence that an unmarried father, or a non -
parent, did not have an inherent right of access to a child, and the custodial parent’s
unfettered right to control access to the child became more illusionary than real. As
Howie JA explained:
‘It is thus the child's right to have access, or to be spared access, that
determines whether contact with the non -custodian parent will be granted.
Essentially, therefore, if one is to speak of an inherent entitlement at all, it is
that of the child, not the parent.’23
[25] Accordingly, in B v S the SCA rejected the conventional approach towards
applications for access, in terms of which the applicant bore an onus of satisfying the
court that access would be in the child’s best interes t.24 It held that proceedings of this
nature are not adversarial nor were they litigation ‘of the ordinary kind’; rather they
22 At 582.
23 B v S at 582A-B.
24 See also B v P 1991 (4) SA 113 (T) at 117F.
require ‘a judicial investigation ’ into the child’ s best interests. 25 Neither party bear s an
onus. The approach to disputes of fact in motion proceedings, as enunciated in
Plascon-Evans,26 does not apply.27 Thus, earlier decisions , and decisions thereafter,
that invoke the reliance upon the right of the custodian parent, and place an onus on the
non-custodial parent, or non-parent, should be treated with caution.
[26] The Constitution28 confers a right on every child to family care or parental care,
or to appropriate alternative care when removed from the family environment. 29 This
accords with the view expressed in B v S that the inherent right is that of the child .30
The Children’s Act commenced on 1 April 2010 and was enacted to give eff ect to the
rights of children as contained in the Constitution . All matters relating to contact with
children must now be decided in terms of the Children’s Act. Section 23 clothes any
person having an interest in the care, well -being or development of a ch ild with locus
standi to seek an order granting them contact with the child or care of the child.31 It also
confers jurisdiction upon the children’s court to make orders in respect of contact and
care of minor children. The children’s court is presided over by a magistrate,32 is not the
upper guardian of children, and orders are made in terms of the Act.
[27] Section 23(2) lists a number of factors 33 which must be considered in an
application for contact or care and, unsurprisingly, foremost is the consideration of the
25 B v S at 584-585.
26 Plascon-Evans Paints Limited v Van Riebeeck Paints (Pty) Limited 1984 (3) 623 (A) at 634E-I.
27 See B v S at 585B-E.
28 The 1996 Constitution.
29 Section 28(1)(b) of the Constitution.
30 See fn 23. See also P and Another v P and Another 2002 (6) SA 105 (N) at 107-108.
31 ‘Contact’ is defined in s 1 of the Children’s Act being : ‘(a) maintaining a personal relationship with the
child; and (b) if the child lives with someone else-
(i) communication on a regular basis with the child in person, including –
(aa) visiting the child; or
(bb) being visited by the child; or
(ii) communication on a regular basis with the child in any other manner …’
It is a term incorporated in the Act to refer to the earlier concept of ‘access’.
32 Section 42 of the Children’s Act.
33 Section 23(2) provides:
‘When considering an application contemplated in subsection (1), the court must take into account -
(a) the best interests of the child;
(b) the relationship between the applicant and the child, and any other relevant person and the child;
(c) the degree of commitment that the applicant has shown towards the child;
best interests of the child. Section 7 (1), in turn, lists a number of factors 34 that must be
considered, where applicable, when deciding the best interests of a child.
Application of the principles
(d) the extent to which the applicant has contributed towards expenses in connection with the birth and
maintenance of the child; and
(e) any other fact that should, in the opinion of the court, be taken into account.’
34 Section 7(1) 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 spec ific 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 subs tantially 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 chi ld; and
(n) which action or decision would avoid or minimise further legal or administrative proceedings in
relation to the child.’
[28] As adumbrated earlier, selective quotations from earlier decisions on the subject ,
decided in terms of the common law , ought to be approached with caution. The
decisive consideration herein is the best interests of the boys , weighed against the
further factors listed in s 23(2) of the Children’s Act.
[29] As I have explained , the thrust Mr YCM’s argument is that it will not be in the
boys’ best interest to have contact with Ms NDN, or her family because of the anger and
resentment that exists between them. In support of the argument Mr YCM relied heavily
on Townsend-Turner35. The matter was decided in terms of the common law, prior to
the commencement of the Children’s Act. It involved an application by a grandmother in
circumstances similar to those which prevail in the current matter, for access to her
grandchild. There ha d been considerable animosity between the grandmother of the
child, the applicant, on the one hand, and the father and his new partner on the other.
The young child had been drawn into their disputes and they involved him directly.
Knoll J held , on the fa cts, that the grandmother was more concerned that her own
needs be fulfilled and , in doing so, she had reacted to the seven-year-old child
inappropriately. The conduct of the adult role-players had placed the child in an
invidious position. Knoll J, accordingly, directed that a period of mediation be embarked
upon in order to improve their relationship before access should be ordered.
[30] In the current dispute, as I have said, the social workers concluded that Ms NDN
has only the best interests of the boys at heart. There is no suggestion in the evidence
of any incident where the boys have either been present or involved in the
disagreements between Mr YCM and Ms NDN. The evidence to which I referred earlier
demonstrates Mr YCM’s intense dislike for Ms NDN and his obstinate refusal to engage
with her. During the argument in the children’s court, he reiterated his stance. He said:
‘… I do not talk to that grandmother, I do not want to talk to the applicant.
And I will never talk to the applicant.’
35 Townsend-Turner and Another v Morrow 2004 (2) SA 32 (C).
There is no evidence of a similar attitude on her part nor is there any suggestion that the
children have at any stage been caught up in this feud.
[31] It is common for access orders to be resented by custodial parents, particularly
where there is an acrimonious relationship with the person seeking access. Where their
opposition is based on a well -grounded fear of harm to the children , it would generally
have good prospects of success. However, where the opposition lacks any reasonable
foundation in relation to the child’s welfare, it would not necessarily pose an impediment
to the granting of an access order. In Kougianos36 Booysen J noted that ‘if an absence
of stress should be the criterion for deciding access cases hardly any access would be
granted’. Similar pronouncements may be found in English law. Sir Thomas Bingham
MR explained:
‘Neither parent should be encouraged or permitted to thin k that the more
intransigent, the more unreasonable, the more obdurate and the more
uncooperative they are, the more likely they are to get their own way.’37
[32] In Re H38 it was recognised that ‘ implacable opposition’ by a custodial parent is
an ‘unattractive argument’. 39 Implacable opposition relates usually to opposition which,
viewed objectively, lacks any reasonable foundation in relation to the child’s welfare.
[33] As I have explained , the Children’s Act calls for a child centered approach. It
does require the court to have regard to the personal relationship between the child and
the parent, caregiver, or any other person relevant in the circumstances. The boys have
a very good relationship with Mr YCM. There is no dispute in this regard. However, the
magistrate correctly concluded that there had been a relationship between them and Ms
NDN until the deceased passed away. Thereafter, as a result of the recalcitrance of Mr
YCM, they have not had any meaningful contact in the last two years. The enquiry
36 Kougianos v Kougianos unreported AR 926/94 (23 June 1995 (N)) at 5-6 of the transcript.
37 Re O (Contact: Imposition of Conditions) [1995] 2 FLR 124 (CA) at 129-130.
38 Re H (A Minor)(Contact) [1994] 2 FLR 776 (CA).
39 See Lawrence Schäfer: The Law of Access to Children at 68-69.
established that Ms NDN , given her medical qualifications, her comfortable home and
reasonable financial situation, is well able to care for the boys and to provide for their
reasonable needs when they are with her in Herschel. Neither their legal representative
nor any of the social workers have raised any concerns arising from their age, maturity,
stage of development, or physical and emotional security.
[34] Section 7(1)(f) of the Children’s Act enjoins the court to have regard to the need
for the child to remain in the care of the parent, family , and extended family and to
maintain the connection with his family, extended family, culture and tradition. Usually, it
is in the best interests of a child to maintain a close relationship with his g randparents40.
The evidence established that members of the extended family interact closely and
gather, on special occasions , at Herschel. Schäfer41 has noted that there is a growing
acknowledgement of the benefits to a child maintaining relationships with non -parents,
particularly members of the extended family. The enquiry further established that the
family was a cohesive family that practiced their cultural traditions. All of these factors
militate in favour of contact being in the best interest of the boys.
[35] As I have said, Mr YCM ’s initial opposition was primarily as a result of his
concern for the safety of the boys. He is not opposed in principle to physical contact
with Ms NDN or her family but suggested that it should occur at a ‘safe place’, like a
police station. As recorded earlier, no foundation has been laid for the apprehension
that he holds and visitation of the boys with their grand mother in a police station strikes
me as most inappropriate for their emotional and psychological well -being. During
argument in the appeal Mr YCM was constrained to acknowledge this, but insisted
nevertheless, if visitation rights are granted, it should be supervised visitation . Two
social workers have expressed the view that such supervision would be unnecessary ,
but Ms Dyan tendered supervision and after -care services by the office of the
department of social development in Lady Grey in respect of visits to Herschel, if this
40 See LH and Another v LA 2012 (6) SA 41 (ECG); and LF and Another v TV 2020 (2) SA 546 (GJ).
41 At p. 67.
form of access were granted. Generally, I think the opinion of the social workers must
be accepted, save as set out in the order below.
The form of the order
[36] I am unable to find an y material misdirection in the magistrate’s reasoning or her
conclusion. However, Mr YCM has candidly , and repeatedly, articulated his intense
dislike for Ms NDN and his resolute intention not to cooperate with her in respect of the
execution of the boys’ right of access to her and their extended family. Wherever the
fault lies for the breakdown in the relationship, it cannot be in the boys’ best interest that
it continues. What is required is sober reflection by all concerned. Mor e often than not,
in family feuds , as the present is, it is difficult to persuade parties to retreat from their
entrenched positions. But the boys’ interests are not best served by protracted and
repeated litigation, with financial implications for all, a nd continuing tensions and
uncertainty. There should be a sustained effort to arrive at a workable solution that best
serves the boys’ interests.
[37] Accordingly, in the interim, the order granting access must be more structured
than that issued by the children’s court so as to avoid the potential for further strife. In
this regard , the parties agreed that telephonic, or multimedia contact should be
exercised once per week between 18h00 and 19h00 each Monday. In respect of
paragraph two of the order, Mr Smith, on behalf of Ms NDN , proposed that she should
be permitted to visit the boys in Makhanda once per month by collecting them from their
home at 09h00 on the third Sunday of each month and returning them to their home by
no later than 17h00 on the same day. Mr YCM acknowledged that if we were inclined to
grant contact in the form of visitation, the time frame was acceptable.
[38] In respect of the visits to Herschel , Mr Smith proposed that Ms NDN should be
permitted to collect the boys from their home on the first Sunday of their mid -year
school vacation at 09h00 and to return them to their home at 17h00 ten days thereafter.
In respect of the December/January school vacation he proposed that the boys should
spend Christmas with Ms NDN every alternate year and that she should collect the boys
on 16 December at 09h00 and return them on 28 December at 17h00 in these years. In
every other year she should be e ntitled to collect the boys at 09h00 on 29 December
and return them at 17h00 on the 9 January.
[39] The children’s court ordered that the boys should spend ‘at least’ a week during
the long school holidays in June/July and in December/January in Herschel. Hence, Mr
Smith’s proposal that they spend ten days with Ms N DN on each occasion. The
formulation provides a recipe for conflict in respect of the period of the visits. N o
compelling reason has been advanced to extend the period beyond the week referred to
by the children’s court, nor for the removal of the boys over Christmas from their family
in in Makhanda, and the order of the children’s court did not provide for it. Accordingly,
I intend to confine it to seven days, the December visit to commence on 29 December
of each year.
[40] Whatever the true source of the animosity between the parties might be, the boys
have, in fact, not spent time away from Mr YCM since 2022 , and I have no doubt that
the initial visits to Herschel may be more disruptive to them than the visitation in
Makhanda. This being so, it seems to me to be in their best interest to delay the
commencement of their visits to Herschel so as to allow the boys to re -establish their
relationship with their grandmother, before the first visit occurs. In addition, the Lady
Grey office of the Department of Social Development should be requested to provide
supervision, in accordance with Ms Dyan’s tender, during the first two visits to Herschel.
Costs
[41] Mr Smith has urged us to make an order that Mr YCM pay the costs of the
appeal. As I have said , the situation calls for responsible, mature and calm heads in
order to craft a path forward in the best interests of the boys. An award for costs could
serve only to further fuel the acrimony which exists. I have no doubt that Mr YCM has
pursued the litigation in the bona fide belief that he was acting in the best interest of the
boys. Mr Smith did not contend otherwise. Thus, I intend to make no order for costs.
[42] In the result, I make the following order:
1. Save to the extent as set out below, the appeal is dismissed.
2. The order of the magistrate is set aside and substituted with the following:
‘It is ordered that:
1. The applicant is permitted to conta ct the children telephonically once
per week on a telephone or a multimedia device, with the assistance
of the respondent.
2. The applicant is permitted to visit the children in Makhanda once per
month by collecting the boys from their home at 09h00 on the third
Sunday of each month , and returning them to their home by no later
than 17h00 on the same day.
3. The applicant is permitted to have the children stay with her, at her
home in Herschel , for one week during the long school holidays in
June/July and in December/January in accordance with the following
timeframe:
(a) By collecting the children from their home in Makhanda at
09h00 on the first Sunday of the mid -year school vacation ,
and ret urning them to their home by no later than 17h00 on
the first Saturday thereafter; and
(b) By collecting them from their home at 09h00 on the
29 December, and returning them to their home by no later
than 17h00 on the 4 January.
4. The office of the Eastern Cape Department of Social Development is
requested, in accordance with their tender, to render supervision
services to the family and the children concerned during the first mid -
year visit and year end visit which visits shall c ommence in mid -
2025.’
J W EKSTEEN
JUDGE OF THE HIGH COURT
RONAASEN AJ:
I agree.
O H RONAASEN
ACTING JUDGE OF THE HIGH COURT
Appearances:
For Appellant: In person
For Respondent: Adv D Smith
Instructed by: Neville Borman & Botha Inc
MAKHANDA
Date Heard: 18 October 2024
Date Delivered: 10 December 2024