REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NUMBER: 2024 -149673
DELETE WHICHEVER IS NOT APPLICABLE
1.REPORTABLE: NO
2.OF INTEREST TO OTHER JUDGES: NO
3.REVISED : NO
Judge Dippenaar
In the matter between:
TLK APPLICANT
and
EEEB RESPONDENT
JUDG MENT
Delivered: This judgment was handed down electronically by circulation to the parties’
legal representatives by e -mail. The date and time for hand -down is deemed
to be 1 4h00 on the 10th of January 2025.
10 JANUARY 2025
Page 2
DIPPENAAR J:
[1] In this urgent application, the applicant s ought the following relief:
‘1. The normal forms and procedures relating to service and the applicable practice directives
of this Court are dispensed with and this application is heard as one of urgency in terms of
Rule 6(12).
2. That full parental responsibilities and rights in respect of the minor child, JMK (“the minor
child”), are awarded to the applicant.
3. The removal of the minor child from the Gauteng Province without the consent of the
applicant is declared unlawful and the respondent is directed to return the minor child
immediately into the care of the applicant in Johannesburg, Gauteng
4. In giving effect to the order in paragraph 3 above, the South African Police Servi ce,
wherever the minor child may be located, is authorized to remove the minor child from the
respondent alternatively with any other party in which the respondent might have placed the
minor child and to place the minor child into the care of the applican t.
5. The respondent is interdicted from removing the minor child from the borders of Gauteng,
alternatively from Parys in the Free State, pending the finalization of the divorce proceedings
to be instituted, alternatively a subsequent court order.
6. The minor child shall be placed in the primary care of the applicant prior to such relocation,
subject to the respondent’s rights of holiday and telephonic / electronic contact as referred to
below;
7.The holiday contact with the minor child for the parties sh all be as follows:
7.1 The respondent’s contact shall occur in either the Gauteng Province, or in Parys pending
the finalization of the divorce proceedings to be instituted, alternatively upon a
recommendation by the office of the Family Advocate, Johann esburg, alternatively a
subsequent court order being issued in this regard;
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7.2 The respondent shall notify the applicant two weeks prior to the holiday contact as to
where this contact will be exercised and provide the applicant with an address and contact
details as to where the minor child will be staying during the contact period;
7.3 The April school vacations shall be shared equally between the parties, with the Easter
weekend alternating between the parties as follows: 7.3.1 In odd years (such as 2025), the
applicant shall have the Easter weekend; and 7.3.2 In even years (such as 2026), the
respondent shall have the Easter weekend;
7.4 The December school vacation shall be divided into two parts, the first part to commence
on the day the school breaks up until 17h00 on 27 December and the second part
commencing at 17h00 on 27 December until 17h00 on the day but one before the first day of
school. 7.4.1 In even years, the minor child shall spend the first part of the December vacation
with the app licant and the second part with the respondent. 7.4.2 In odd years, the minor child
shall spend the first part of the December vacation with the respondent and the second part
with the applicant.
7.5 The June/July school vacation shall be divided into two e qual parts where the first part to
commence on the day the school breaks up and the second part shall end on the day but one
before the first day of school . 7.5.1 In even years, the minor child shall spend the first part of
the winter vacation with the res pondent and the second part with the applicant. 7.5.2 In odd
years, the minor child shall spend the first part of the winter vacation with the applicant and
the second part with the respondent.
7.6 The September / October holiday shall alternate between th e parties as follows: 7.6.1 In
even years, the minor child shall spend the September / October vacation with the respondent;
7.6.2 In odd years, the minor child shall spend the September / October vacation with the
applicant.
7.7 Reasonable daily telephoni c contact between 18h00 – 18h30, when the minor child is in
the care of the applicant and mutatis mutandis when the minor child is in the care of the
respondent.
8 The Office of the Family Advocate is ordered to conduct an urgent investigation and make
recommendations into the best interests of the minor child in specific relation to the primary
residence and contact of the minor child should same be at variance with the above, within
30 days of this Order, and report back to this Court on the return date t o be provided by the
Registrar of the above Honourable Court .
9 Costs of the application to be paid by the respondent .’
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[2] The parties are parents to a little girl, JK, who is presently some twenty -four months
old. The applicant is JK’s father. Her mother, t he respondent , also has a son, JC from a
previous marriage , who is some eight years old . The application only relate s to JK. The
parties met during 2019 and during February 2020, the respondent moved to the family
farm on which the applicant works and resides. The respondent is a self -employed dress
maker. They were married on 13 November 2021, although the respondent questions the
validity of the marriage . That issue is irrelevant to the current application. During June
2023, when JK was some 5 months old, the respondent left the matrimonial home and
the parties separated . She rented a property in Parys, some 100kms from the farm on
which the matrimonial home was situated.
[3] During December 2024, the respondent relocated with the minor child to an
upmark et estate in Stellenbosch, Western Cape, where they are residing with her mother
and stepfather. That event triggered the urgent application, which was served on the
respondent personally at her new address on 23 December 2024.
[4] Earlier in December, the ap plicant had prepared an urgent application to interdict
the respondent from leaving Gauteng with the minor child, which was abandoned once
the applicant realised that the respondent had already relocated. No divorce proceedings
have yet been instituted by either party.
[5] The applicant’s case in sum was that the respondent unlawfully and without his
knowledge or consent relocated to the Western Cape with the minor child on 14
December 2024, without advising where they would be staying or how the re spondent
would support herself. The respondent was responsible for their separation and she acted
deceitfully throughout the relocation. The applicant was notified of her intended relocation
by way of email on 8 December 2024 , which contained false allegations against him ,
including allegations of alcohol and physical abuse . After dispatching the email, the
respondent stopped all contact between the applicant and the minor child and was
deceitful in relation to the date of her departure . According to the applica nt, the parties
had during August 2023 verbally agreed on a shared residency a rrangement in terms of
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which residenc y of the minor child was shared on a weekly rotational basis and the parties
shared joint parental rights and responsibilities. JK was enroll ed in a pre -school in
November 2023, which she attended during the weeks she resided with the applicant. He
accuses the respondent of devising and executing a deceitful stratagem with the
assistance of her legal representatives to deprive him of his rights and contact to the
minor child .
[6] The respondent paints a very different picture. According to her , the relationship
between the parties was characterised by the applicant’s physical abuse and alcohol
abuse. She contended that the applicant physically abus ed her on various occasions and
subjected JC to corporeal punishment . The applicant refused to recognise or
acknowledge his alcohol problem . In corroboration of her averments , she attached
affidavit s from the applicant’s former wife and her former husband, Mr B and recounted
various incidents which occurred both during their relationship and after their separation .
According to the respondent, she fled the common home as a result of the long history of
abuse she suffered at the hands of the applicant. She c ontends that the minor child is not
safe with the applicant as a result of his alcohol abuse in her presence , which ultimately
motivated her relocation in the best interests of the minor child . In her view, the application
was designed to exercise control over her and continue the applicant’s abuse.
[7] The respondent opposed the application on the grounds that the application lacked
urgency and the applicant was not entitled to any of the substantive relief sought. She did
not launch a counter application but did not oppose the referral of the matter to the Family
Advocate.
[8] It was submitted that the applicant did not muster the basic requirements of
urgency . On the merits, it was submitted that t he respondent was th e primary caregiver
of the minor child at the time of her relocation, and after having had due consideration for
the views of the applicant, and considering the best interest of the minor child, she
relocated to Stellenbosch to the safety of her family , pending resolution of the disputes
between the parties . It was submitted that h er actions were bona fide and in the best
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interest of the minor child . The respondent argued that none of the requirements for
interim interdictory relief w ere met. It was contend ed that i t was not in the best interest of
the minor child to be placed in the primary care of the applicant , given his well-
documented history of violence, abuse and alcohol abuse .
[9] There is merit in the respondent’s contentions that the applicant did not meet the
well-established requirements for urgency set out in r 6(12) and the relevant case law1.
The application was launched with extremely attenuated time periods over the Festive
Season. Had the matter not concerned the best interests of a minor child , it would have
been struck of the roll. I was however persuaded that the application should be
entertained on the urgent court roll, given that investigation by the Family Advocate’s
office is crucial to properly determining the minor child’s best interes ts.
[10] Each of the parties disputes the version of the other in material respects in relation
to the abuse and the papers are replete with factual disputes, many of which are
irresoluble on the papers. What is common cause on the papers is that the responde nt
continually complained about the applicant’s use of alcohol. The respondent’s version is
not far -fetched, palpably false or clearly untenable and cannot be rejected . 2
[11] The majority of the substantive relief sought by the applicant was predicated on
the contention that the applicant unlawfully relocated with the minor child without his
knowledge and consent.
[12] Under s 6 of the Children’s Act3 (‘the Act’), a person having parental responsibilities
in respect of a child must be informed of any action or dec ision concerning the child which
could significantly affect the child.
1 For example East Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty) Ltd [2011]
ZAGPJHC 196 .
2 Wightman t/a JW Construction v Headfour (Pty) Ltd and Another 2008 (3) SA 371 (SCA) para 12.
3 38 of 2005, as amended.
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[13] Section 31 of the Children’s Act4 (‘the Act’) provides:
‘Before a person holding parental responsibilities and rights in respect of a child takes
any decision affecting contact between the child and a co-holder of parental
responsibilities and rights, or which is likely to significantly change or have an adverse
effect to the child’s living conditions, education, health, personal relations with a parent
or family member or genera lly the child’s wellbeing, that person must give due
consideration to any views and wishes expressed by any co-holder of parental
responsibilities and rights in respect of the child. ’
[14] The Act does not expressly regulate inter provincial relocation. Section 31 does
not expressly require the consent of the other party. The applicant’s complaint that he did
not consent to the relocation as a basis for the substantive relief sought, thus lacks merit.
[15] The true question to co nsider is whether the proposed relocation is in the best
interests of the minor child. It must further be considered whether the respondent gave
due consideration to the views expressed by the applicant and whether the relocation
was bona fide and reasonab le.
[16] From the documenta tion evidencing the communications between the parties and
specifically the respondent’s letter of 8 December 2024, it is clear the applicant was fully
aware of the respondent’s reasons for relocating and that she was going to liv e with her
parents for emotional and other support. The respondent in the letter tendered contact to
the minor child and made proposals in relation thereto. At the centre of th e respondent’s
reasons, was the applicant’s abuse and the impact thereof on the minor child . However,
other than in terms of broad denials of either physical or alcohol abuse , the applicant did
not meaningfully engage with thos e averments, specifically his alcohol abuse.
[17] It cannot be concluded on the pap ers that the respondent was not bona fide or that
the relocation was unreasonable. It can further not be concluded that the relocation under
the circumstances was not in the minor child’s best interests. I conclude the converse. It
4 38 of 2005, as amended.
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was in my view in the mi nor child’s best interests to have been removed from her erstwhile
environment pending a formal comprehensive investigation into her best interests which
would consider all the relevant circumstances . I am satisfied that the respondent gave
due considerati on to the applicant’s views as required by s 31 of the Act.
[18] It follows that the applicant has not made out a proper case for the declaratory
order and the relief sought ancillary thereto.
[19] The requirements to establish interim interdictory relief are trit e. 5 An applicant
must establish: (i) a prima facie right, although open to some doubt; (ii) a well - grounded
apprehension of irreparable harm if the interim relief is not granted ; (iii) a favourable
balance of convenience; and (iv) the absence of an alter native suitable remedy.
[20] In my view, the applicant falls far short of the mark. His failure to establish a ny
prima facie right, coupled with his failure to establish any of the other requirements, is
fatal to the interdictory relief sought.
[21] It is apposite to refer to what was stated by Satchwell J in LW v DB . 6
‘The solution of our court s can never be to order that separated parents must live at close
proximity to each other in order that each paren t lives in close proximity to a child. Our court s
have no t been appointed the guardians of adults and parents are not the prisoners of our
courts’.
[22] The applicant has further not established that full parental rights and
responsibilities should be awarded to him. It is further entirely premature at this stage to
make any such determination or to consider the minor child’s primary residence and the
contact arrangement proposed by the applicant. The existence of any shared residence
5 Setlogelo v Setlogelo 1914 AD 221.
6 2020 (1) SA 169 GJ para 152.
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arrangement is hotly contested by the respondent , who maintains that she was at all times
the primary caregiver of the minor child. Such issues can only be considered and
determined once the Family Advocate has fully investigated the matter. Considering the
current circumstances, I am not persuaded that it would be in the minor child’s best
interests to simply be placed in the care of the applicant at this time.
[23] The applicant’s insistence on the relief sought gives credence to the respondent’s
stance that the applicant is controlling and is seeking to obtain an advantage in the divorce
proceedings which must inevitably follow. It further smacks of a lack of appreciation for
the minor child’s needs a nd best interests, given that the applicant seeks to deprive the
responden t of any primary c are rights. It should be borne in mind that it is the minor
child’s right to have contact or be spared contact to a parent, rather than the right of the
parent .7
[24] It follows that the applicant is not entitled to the majority of the substantive relief
sough t in the application .
[25] In my view, i t would however be in the best interests of the minor child that a proper
investigation be conducted into her primary residence, care and contact so that
appropriate arrangements or orders may be made in due course to regulate the position
going forward . For that reason, I did not strike the application from the roll for lack of
urgency. The respondent consented to such relief and agreed that an investigation would
be necessary. The applicant has indicated that he intends launching r 43 proceedings. It
would be beneficial to a court dealing with such application or any other legal proceedings ,
to have the investigation reports available.
[26] I am mindful of the need of the minor child to maintain contact with her father
pendi ng the provision of the reports , to ameliorate the hardship on all involved , especially
on JK . Both parties addressed me on what contact they considered appropriate. The
7 B v S 1995 (3) SA 571 (A) at 581I - 582A/B
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applicant urged me to follow the approach adopted in TLS v VML8 . In essence that would
entail a shared residency arrangement without any supervision .
[27] Conversely, the respondent sought supervised access every alternative weekend
for a period of four hours per day, motivated by the allegations of alcohol abuse on the
part of the applica nt. Her contentions were that such abuse also took place in the
presence of the minor child on numerous occasions. Those averments were, inter alia ,
supported by a recent photograph of the minor child on the applicant’s Facebook page
with two tins of what appears to be beer, resting on the pram in which she was in .
[28] On a conspectus of all the relevant facts, I am persuaded that the cautious
approach suggested by the respondent would be an appropriate interim arrangement that
would best serve the minor chil d’s interests. The respondent ’s concerns and allegations
of abuse cannot be brushed off as a recent fabrication, as the applicant suggests.
[29] The interim regime w ill only be in place pending the Family Advocate’s
recommendations. Whilst the proposed order w ill curtail the contact the applicant hitherto
enjoyed with the minor child, it is in my view necessary to protect her best interests. It is
always open to the parties to agree to additional or less restricted contact or for either to
approach a court for the variation of the current contact arrangement, if appropriate.
[30] There is no reason to deviate from the normal principle that costs follow the result.
The applicant submitted that he acted in good faith and in the best interests of his minor
child, and t hus that if he were to be unsuccessful, each party should be directed to pay
their own costs. Considering the facts, I am not persuaded that the respondent, as
successful litigant, should be deprived of her costs.
8 [2016] ZAGPPHC 929 (30 September 2016).
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[31] In the result, I grant the following order :
[1] The Office of the Family Advocate Johannesburg in conjunction with the office of
the Family Advocate Cape Town is hereby ordered to conduct an urgent
investigation into the best interest of the minor child (JK) specifically in relation to
primary r esidency, care, and contact and to deliver its respective reports within
three months of date of this order;
[2] Pending the finali sation of the reports from the Family Advocate’s Office, the
applicant is awarded contact with the minor child as follows :
a. Physical contact, under the supervision of the maternal grandmother, or
a registered social worker of the applicant’s choice, every alternative
Saturday and Sunday for a period of 4 (four) hours each day, the times
to be arranged between the parties . The applicant is to pay the costs of
such appointed social worker , if he elects to use such services;
b. Daily electronic contact by way of WhatsApp video call between 17h00
and 18h00;
[3] The applicant is ordered to pay the costs of the application on a party and party
scale, to be taxed on scale B.
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_____________________________________
EF DIPPENAAR
JUDGE OF THE HIGH COURT
JOHANNESBURG
HEARING
DATE OF HEARING : 07 JANUARY 2025
DATE OF JUDGMENT : 10 JANUARY 2025
APPEARANCES
APPLICANT’S COUNSEL : Adv. G. Benson
APPLICAN T’S ATTORNEYS : Goodes & Co Attorneys
RESPONDENT’S COUNSEL : Adv. N. Erasmus
RESPONDENT’S ATTORNEYS : DP du Plessis I ncorporated