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IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU -NATAL DIVISION , PIETERMARITZBURG
Case number: 8947/2022P
In the matter between:
D[…] R[…] R[…] APPLICANT
and
S[…] D[…] R[…] FIRST RESPONDENT
THE OFFICE OF THE FAMILY ADVOCATE SECOND RESPONDENT
Coram: Mossop J
Heard: 10, 11, 12 February 2025
Written argument delivered on : 20 February 2025
Judgement d elivered: 13 March 2025
_______________________________________________________________________
ORDER
______________________________________________________________________
The following order is granted :
Primary care of S and M
1. Primary care of S[…] D[…] R[…] (S), a boy born on 5 May 2017, and M[…] R[…]
(M), a girl born on 21 September 2021, is awarded to the first respondent and both
children shall have their primary place of residence with the first respondent.
Contact by the applicant with S
2. The applicant shall be entitled to exercise contact with the min or child S as
follows:
(a) where possible, and only following prior confirmation by the applicant with
the first respondent at least 72 hours prior to the intended visit, on the second
and fourth weekends of every month commencing on Friday afternoon at 14 h00
and terminating on Sunday evening at 18h00;
(b) during the long school holidays, which are to be divided in two and shared
equally between the applicant and the first respondent; and
(c) during the short school holidays, which are to be alternated between the
applicant and the first respondent .
3. In addition to the abovementioned contact , the applicant shall be entitled to
reasonable telephone and video contact with S on a daily basis by arrangement with the
first respondent .
Contact by the applicant with M
4. The applicant shall be entitled to exercise contact with the minor child M where
possible, and only following prior confirmation by the applicant with the first respondent
at least 72 hours prior to the intended visit, on the second and fourth weekends of every
month .
5. Such contact shall be exercised as follows until M reaches school going age :
(a) commencing on Friday afternoon at 14h00 and terminating at 18h00 on
Friday evening ;
(b) commencing on Saturday morning at 09h00 and termina ting on Saturday
evening at 18h00; and
(c) commencing on Sunday morning at 09h00 and terminating on Sunday
evening at 18h00 ; and
6. In addition to the abovementioned contact, the applicant shall be entitled to
reasonable telephone and video contact with M on a daily basis by arrangement with
the first respondent.
7. Upon M attaining school going age, the parties, or any one of them, shall be
entitled to seek the variation of the order relating to the first applicant’s contact with M.
Costs
8. There shall be no order as to costs.
______________________________________________________________________
JUDGMENT
______________________________________________________________________
MOSSOP J :
[1] The applicant and the first respondent are married to each other, and they have
two children. Their eldest child is a boy, S […] D[…] R[…] , who I shall refer to as ‘S’, who
was born on 5 May 2017, and they also have a daughter, M […] R[…] , who I shall refer
to as ‘M’ , who was born on 21 September 2021 .1
[2] The applicant and the first respondent do not live together. The applicant
presently lives in Johannesburg and the first respondent lives in Pietermaritzburg. Their
separation from each other was not intended to be permanent but it has become so.
They had previously both lived in Pietermaritzburg, but agreed that the applicant would
move to Johannesburg , taking S with him, with a view to securing employment there for
himself and that the first respondent would then follow later with M. In Johannesburg ,
they would reconstitute themselves as a family and all live together.
[3] That plan never came to fruition. The first respondent decided that she would not
move to Johannesburg after the applicant and S had already moved there . The
applicant , however, chose not to return to Pietermaritzburg when he received that news ,
but remained in Johannesburg with S . Thus, for the past three years , the two children
born of their marriage have remained separated from each other : M with her mother and
S with his father .
[4] Apparently n ot content with this arrangement, t he applicant brought an
application in which he sought an order that he be awarded care of both children. That
relief was opposed by the first respondent. It was evid ent from the papers filed that
there were irresoluble disputes of fact .
The referral to trial
1 At the time of the trial to which reference is later made, S was thus two months away from his eighth
birthday and M was three and a half years old.
[5] As a consequence, Sibiya J granted the following order on 27 September 2022 :
‘1. The matter is referred to trial for the hearing of oral evidence in order for
the court to consider and give a ruling on the following issues:
1.1 Which of the parties (the Applicant or the First R espondent ) should the
minor child S, a boy born of the union between the Applicant and First
Respondent on 5 May 2017 (S) have his primary place of residence with (“S’s
custodial parent ”);
1.2 What terms of contact should the party with whom S does not primarily
reside (S’s non- custodial parent ) enjoy with regard to S?
1.3 Which of the parties (the Applicant or the First R espondent ) should the
minor c hild, M, a girl born of the union between the parties on 21 September
2021 (“M”) have her primary place of residence with (M’ s custodial parent);
1.4 What terms of contact should th e party with whom M does not primarily
reside (M’s non-custodial parent ) enjoy with regard to M;
1.5 Should S and M be separated and have different custodial parents .’
[6] The order is clumsily worded, but its meaning is reasonably clear.
The facts
[7] The trial contemplated by the order of Sibiya J came before me.
[8] It was common cause that in the past , the applicant had suffered from a serious
drug addiction. The first respondent was no t herself blemish -free as regards the use of
substances : it was not disputed that she had consumed alcohol and had used dagga at
one stage. While the applicant’s drug addiction had worsened and had led him to use
increasingly more addictive substance s, including benzo diazepine, ‘whoonga ’,2 heroin
and crack cocaine , the first respondent ’s own substance use did not escalate, and she
did not follow him down th e slippery road to harder drug use . Due to his addiction, the
applicant was twice admitted to treatment centres in an attempt to rid him of his
dependency .
[9] The applicant was trained to be a graphic designer but apparently found it difficult
to secure quality employment in this field in Pietermaritzburg. The relationship between
him and the first respondent was always volatile and the parties frequently split up and
went their separate ways , only for their separate orbits t o later intersect and for their
relationship to resume. During the course of this fractious relationship, they married,
and the two minor children were conceived and born.
[10] At a stage when the marriage was on a relatively stable trajectory , the applicant
and first respondent agreed that it would be best for the m to move to Johannesburg so
that the applicant could seek employment , both believing that the opportunities for work
would be more plentiful for him there . The move was also prompted by the fact that the
applicant’s mother , with whom he was particularly close , had moved to Johannesburg
after being diagnosed with cancer. The first respondent , who apparently had no difficulty
in securing employment, intended to follow the applicant once her obligations to her
then-employer had been finalised . It was agreed that the applicant would take S with
him and that M would remain with the first respondent until she and M both relocated to
Johannesburg.
[11] During December 2021 , the applicant accordingly relocated with S to the
residence of his older sister, Ms L[…] G[… ] (Ms G) , in Johannesburg . There they remain
to this day. The applicant did not obtain employment for a period of some 15 months
after arriving in Johannesburg. How he sustained himself over this period will be
considered shortly. His younger sister also resides in Johannesburg and is a teacher at
2 Apparently, a mixture of heroin and other substances.
a local Montessori school and S was duly enrolled at that school. How this was paid for
will also be considered shortly.
[12] The dream of a common residence in Johannesburg was dashed one weekend
in July 2022. The first respondent’s family had hired a holiday house for a weekend on
the KwaZulu -Natal north coast to accommodate a family getaway. The applicant
travelled down from Johannesburg with S to join them there . During the course of that
weekend, t he first respondent , correctly or incorrectly, formed the view that the applicant
was still using drugs . The applicant denies this to be true , and it may well not be true ,
but what cannot be denied is that the first respondent believed this to be the case . She
consequently told the applicant that she would not be joining him in Johannesburg and
that the marriage was over .
[13] The first respondent thereafter attempted to prevent S from returning with the
applicant to Johannesburg and that led to an application to the High Court in
Pietermaritzburg , which , coincidentally , served before me on 18 July 2022 . I granted an
order with interim relief that S be permitted to return to Johannesburg with the applicant.
I also requested the se cond respondent, the Office of the Family Advocate, to
investigate the matter and to prepare a report .
The oral evidence called by the applicant at trial
[14] The applicant called a s witnesses a social worker , an expert clinical
psychologist and his older sister, Ms G. He also gave evidence. All this evidence needs
to be considered and evaluated .
[15] The social worker , Ms Felecia Buthelezi (Ms Buthelezi) , testified that she had
visited two places where the first respondent claimed to live , at the request of the
clinical psychologist in Johannesburg instructed by the applicant. The place that she
visited first was a studio flat in a block of flats , but it rapidly emerged that the first
respondent did not actually reside there but, in fact, resided at her parents ’ home. That
home was a free -standing house set in a garden. There were , according to Ms
Buthelezi , apparently fierce dogs at the home and she described the numerous trees in
the garden of that home as being ‘scary’. I have no idea at all what she meant by that.
The use of th at adjective, perhaps, tells us more about Ms Buthelezi than about the
trees . Or the garden. Ms Buthelezi’s evidence was tendered only in relation to the
suitability of the first respondent’s accommodation.
[16] The clinical psychologist called by the applicant was Ms Megan Main -Baillie (Ms
Main -Baillie ). Ms Main -Baillie has her practice in Johannesburg and is the person who
instructed Ms Buthelezi .
[17] Ms Main -Baillie prepared a report , which was received by the court, in which she
set out the scope of her investigations , the interviews that she conducted , the analysis
that she performed on the facts that she discovered , and the conclusions to which she
came. Her report was in excess of 100 pages. Leaping ahead to the conclusion of her
report , she found as follows:
‘M and S should primarily side with [the applicant] , with frequent contact from [the
first respondent] , where practical, which will give each parent an opportunity to
work on their connection with their children.
Ideally, should [the applicant and the first respondent] decide to reside in the
same province then the children should have far more regular contact with [the
first respondent] . There appears to be no compelling reason why either parent
cannot relocate as neither have wo rk commitments in the province in which they
reside . However, of the residences visited during the evaluation process, the
[applicant’s sister’s ] residence appears the best equipped to cater for both
children's developmental needs.’
[18] Having heard and cons idered her evidence, I am not sure that, at the end of the
day, Ms Main -Baillie added anything of value to the resolution of the issues before this
court.
[19] Firstly, the report that she prepared is dated 23 January 2023. The trial
commenc ed on 10 February 2025 . Since she had prepared her report , two years had
passed and much of what was contained in her report , which may have been valid at
one stage, was no longer valid. For example, i n her conclusion referred to above she
stated that both the applicant and the first respondent were unemployed. Factually, that
statement is incorrect. Both the applicant and the first respondent are employed. There
are other inaccuracies. She indicated th at the applicant appeared to be drug free and
referenced the results of a dru g test that she required him to undergo. Th e result of that
test was dated 19 August 2022 . There is no way of knowing whether the applicant
remained drug free over the period of two and half years between the date of that test
and the date that the trial began . To, therefore , say at trial that the applicant was drug
free, as Ms Main -Baillie did, on the strength of that single test result acquired two and a
half years ago , was imprudent and unwise .
[20] It would appear that Ms Main -Baillie has had no contact with the applicant , the
first respondent or the minor children for the last two years. At the very least, an
updated re port setting out the present circumstances of the principal personalities
should have been prepared, but it was not. I heard statements en passant from the bar
that there would be evidence that the first respondent had thwarted the preparation of
an updated report , but I never heard this from a ny witness under oath.
[21] Secondly, in framing her recommendation that the care of both children be given
to the applicant , Ms Main -Baillie explicitly endorsed the notion that M should be taken
from the first respondent and placed in the care of the applicant. She knew full well that
at the date of the commencement of the trial , the applicant had been separated from the
first respondent for a period of three years. She knew , as well , that M was only three
and a half years old at the date of the commencement of the trial. Thus, for virtually the
whole of her life, M had only ever known the care of the first respondent , as during
virtually this entire period the applicant had lived exclusively in Johannesburg . Yet, Ms
Main -Baillie recommend ed that M be taken away from her mother and that her care be
given to the applicant .
[22] In making this recommendation, Ms Main -Bailie must surely have remembered ,
and taken cognisance of, her own report where she stated the following about the
applicant’s relationship with M:
‘When he learned of M’s birth, he immediately visited her daily; However, he has
not had much opportunity to bond with M in the same way he bonded with S.
There is therefore a clear difference in his attachment with S compared to with M. [The
applicant] clearly desires a relationship with M, as seen in his legal applications to
protest [the first respondent] blocking his contact. He appeared deeply saddened when
talking about his relationship with M and how much he has missed out. ’
[23] Later in her report, Ms Main -Baillie remarked in a similar vein as follows:
‘It appears to the undersigned psychologist in all her interactions with [the
applicant ], that [the applicant ] deeply desires a relationship with M; however, he
does not appear to have the tools to effect a long -distance relationship with her in
amongst the hostile relationship he has with [the first respondent ]. He appears to
be passive and somewhat defeated in h is attempts to form a relationship with
her.'
[24] The nett effect of these observations in her report , and confirmed by Ms Main -
Baillie in her evidence before me , was that the applicant did not have much of a
relationship with M. Yet , Ms Main -Baillie recommended the separation of M from the first
respondent , the only parent with whom she does have a bond. The logic of that
approach escape s me on a human level . That conclusion became ever more
questionable when Ms Main -Baillie testified before me that:
‘I think he would struggle to raise two children on their own.’
[25] An aspect of Ms Main -Baillie ’s evidence with which I had no difficulty was that
she agreed that siblings should, in general, be raised together. That accorded with the
evidence of all the witnesses called in this matter , even the lay witnesses . This was
confirmed in Ms Main -Baillie ’s report where the following appeared:
‘1. It is generally in children's best interests to have shared residency and
contact with their parents in separated families . Children should be allowed to
equally foster their relationship with both their mother and their father. However,
relocation makes this an unfeasible option, therefore primary residency with
regular contact with the non -primary parent needs to be considered.
2. There appears to be no good reason why [the applicant] and [the first
respondent] cannot reside in the same province for the sake of their children and
their children's best interests; however, neither can be compelled to move which
demonstrates a level of self-centeredness .’
[26] While there is much with which I do not agree in Ms Main -Baillie ’s report, I also
agree that there is nothing that prevents the parties from residing in the same province.
That they do not is entirely due to choices that they have made.
[27] Thirdly, Ms Main -Baillie, in formulating her recommendation s, clearly did not
endorse th e continued separation of the minor children. She accepted that they should
be kept together but found that the parent to be entrusted with their care should be the
person who hired her services, the applicant. Her principal reason for coming to this
conclusion was the concept of parental alienation. This is, in essence, the manifest ation
of a form of emotional child abuse that occurs when one parent manipulates a child to
turn the ch ild against the other parent . This is not a theory and practice unknown to the
courts of this country . It primarily manifests itself during high conflict divorce s in which a
child identifies strongly with one parent, usually the custodial parent. Ms Maine -Bailey
concluded that there was evidence of this having occurred with S and that the first
respondent was the party responsible or it .
[28] My difficulty with this conclusion is that the first respondent has seen very little of
S over the past three years . She is not S’s custodial parent, the applicant is. Her
opportunity to engage in this practice was thus restricted to say the least.
[29] The fourth difficulty that I have with Ms Main -Baillie ’s report is that it is simply not
accurate. There are numerous examples of such inaccuracy , primarily , as already
mentioned, because the report is outdated and the facts upon which she has reported
are presently inaccurate . But the accuracy of her reasoning also appears to me to be
unsound . I confine myself to a si ngle example , although there are more . In her report,
Ms Main -Baillie records that:
‘[The applicant ] is able to provide both children with a stable environment with
structure, routine and predictability. [The first respondent ] does not appear to be
able to provide a stable and consistent home environment for the children as it
was unclear where she is re siding. ’
Continuing with this theme, Ms Main -Baillie stated that:
‘[The applicant] appears capable of providing for the children's practical, safety,
intellectual and emotional needs; however, his affect is rather flattened and he
will need to work on his energy of engagement when with the children.'
[30] There was no evidence whatsoever that the applicant was able to physically
provide for S , or had provided for him on his own, let alone S and M together . He does
not have his ow n home but has continued to reside at his older sister’s home. He has
never had to provi de for one of his children , let alone two , on his own. This will become
apparent when the evidence of his older sister is considered.
[31] Ms Main -Baillie did not impress me as a witness. While she boldly made
statements in her report, she was less resolute in defending them under questioning .
She stated that the applicant was drug free but then said that he could relapse. She
said that M should be relocated to Johannesburg but then agreed that it would be very
confusing for the little girl. I noticed that s he was only able to fluently testify if she found
her place in the report that she had prepared, and which was lying open before her in
the witness box. Absent a specific reference to a portion of her report, her evidence
became vague and unimpressive.
[32] By far the most impressive witness called by the applicant was his older sister,
Ms G. She was as fine a witness, and a human being, as I have had the pleasure of
hearing in court . She is intelligent and well -educated, holding a doctorate , and is well-
spoke n. And she is obviously blessed with an abundance of kindness. She is married
but herself has no childre n. Her husband appears to be an exceptional human being as
well, cut from the same cloth as she is . They reside in a two -bedroomed home in
Johannesburg and welcomed the applicant into their home upon his arrival and gave up
their bedroom on the upper floor of the dwelling so that the applicant and S could share
it. They took up residence in the downstairs study, which remains their bedroom .
[33] The question was posed earlier as to how the applicant funded his lifestyle in
Johannesburg. The answer is that he did not, his older sister and brother -in-law did.
They funded the applicant’s stay in Johannesburg. They paid for his trips to
Pietermaritzburg to visit M. They paid for S’s schooling at the Montessori school at
which the applicant’s younger sister is a teacher. Either Ms G , her husband or her
younger sister would take S to school and one of them would fetch him at the
conclusion of the school day and ferry him home . The applicant is not involved in any of
these activit ies.
[34] Accordingly, i f anyone provides physically for S, it is not the applicant, but it is his
extended family , more particularly his older sister . I cannot spea k more highly of Ms G.
But, and this is a big but, she is not the mother of S nor is she the mother of M. If
primary care of the two children is given to the applicant, it is reasonably certain that the
burden of caring for them will fall on, or will be willingly assumed by, Ms G.
[35] The applicant also testified. Ms Main -Bailie described hi m in her report as being
possessed of a ‘flat’ attitude . That chimes with what I observed. He sat for the most part
stony -faced while evidence was led and displayed no emotional responses at any time.
As the trial progressed , I formed the impression that being the only male in the family ,
he had been over-indulged , particularly by his sisters. He was funded through most of
his adult life by his family, firstly by his late mother and later by his older sister. I t
appears that he was not required to account for what he did with th e money that he was
given . His wife, the first respondent, worked : he did drugs.
[36] At the end of the first day of the trial, I suggested to the applicant and the first
respondent that they should seriously consider their positions overnight and determine
whether they were really acting in the best interests of their children. I was inclining to
the view that neither of them was prepared to sacrifice their own personal interests for
the great er good of their children . My appeal to them went unheeded and neither party
shifted their position, and the trial continued into day two and then into day three .
[37] At one stage while the applicant was testifying, I asked him if he accept ed that
there was a time when he realised that the dream of living together with the first
respondent and his children in Johannesburg was not going to be realised. He said that
there was such a stage. I asked him why, having reached such an appreciation, he had
not then returned S to th e first respondent. Until that stage, S had lived his whole life in
Pietermaritzburg and that was where his home had always been. I had heard no
evidence that the parties had agreed that the applicant could keep S with him
irrespective of whether or not the first respondent relocated to Johannesburg . That
arrangement existed only so long as they both moved to Johannesburg . The applicant
was not able to meaningfully respond to my question.
[38] The only answer that could be given for his failure to return S is that it suited the
applicant to keep S with hi m. In deciding that, it appears to me that the applicant placed
his o wn interests above those of his children and demonstrated a certain self-
centredness . While h e admitted that he believed the children should be together, he
was not prepared to allow that to occur if the parent granted care of both children was
the first respondent.
[39] That the applicant is self -centred was rather perceptively acknowledged by Ms
Main -Baillie in her report , when she state d:
‘He has also chosen, [sic] to place his own need to be in Johannesburg with his
family above his children's needs to have a relationship with both of his parents.'3
[40] While I have criticised Ms Main -Baillie ’s evidence elsewhere in this judgment , I
agree with her that the re are unequivocal signs that the applicant has manipulated the
situation to best suit himself . Two further examples of this bear mentioning in Ms Main -
Baillie ’s report . Firstly, she noted that:
‘Likewise, the applicant moved away with S to Johannesburg, and in so doing
disrupted S’s relationship with the first respondent. Despite having the freedom to
work remotely, the applicant has chosen to remain in Johannesburg, thereby
separating the two fami lies through significant practical distance .’
And secondly, she observed that :
‘Moving to Johannesburg appears to have been his own need, and one that was
not urgent or even unavoidable given then (sic) he has not yet established his
business, his work allows him to work remotely, and he has family and history in
Pietermaritzburg. Whilst being with his family may be good for his psychological
3 I am not sure what the reference to ‘his parents’ in the extract mentioned is intended to mean. The
applicant had no personal knowledge of his father who was absent from his life since shortly after his birth
and his mother has passed away. It seems to me that what Ms Main -Baillie intended to say was not ‘his
parents’ but rather ‘their parents,’ meaning the applicant and the first respondent.
well-being , he has not give (sic) much consideration to the impact of this
separation on both the children, specifically on the separation of S and M, as well
as S’s separation from his mother. ’
[41] All this accords with the view that I have of the applicant. I did not find him to be
an impressive witness, and, in my view , his true nature became more apparent the
longer he remained in the witness box.
The evidence called by the first respondent
[42] The first respondent briefly led the evidence of a clinical psychologist, Mr Clive
Willows (Mr Willows). A man with a grizzled appearance , Mr Willows has great
experience in his field of expertise. I found him to be refreshing in his approach to his
evidence. He candidly told me up front that he did no t believe that he could assist the
court much: he had not spent sufficient time with the children, or their parents , to permit
him to come to a recommendation. The value of his evidence was confined to two
points. The first was that he had visited the first respondent’s parent’s home and
described it as being perfectly adequate to accommodate the first respondent and the
two children. The second point was his evidence that siblings should be raised together
wherever possible. Mr Willows may not have thought his evidence would be of any
assistance but in that he was mistaken .
[43] The first respondent took to the witness box. She partially testified . I say this
because she was not cross -examined by counsel for the applicant. Shortly before the
long adjournment was take n on the third and final day of the trial , the first respondent
finished be ing led in her evidence in chief and counsel for the applicant , Mr Ender, was
invited to commence his cross -examination of her. He did not do so but asked for the
matter to stand down so that the possibility of settlement could be considered. I was
surprised by this development but agreed to allow the parties an opportunity to resolve
the matter .
[44] When the trial recommenced after standing down for several hours , I was handed
a typed consent order (the consent order) . Having briefly considered t he terms of the
consent order, I then stood the court down again, this time to further consider my
position. I returned to court after half an hour and indicated that I did not believe the
consent order would serve the best interests of the minor children. I requested Mr Ender
to commence his cross -examination of the first respondent. He declined to do so but
instead led her on why she had agreed to the consent order.
[45] None of the first respondent’s evidence in chief was therefore challenged and Mr
Dwayi, who appeared for her, closed her case after she finished giving her explanation
to Mr Ender. No basis was consequently laid through cross -examination for it to be later
argued that the first respondent’s evidence should be rejected .
[46] Cross -examination is a vital part of a trial. The Constitutional Court summed up
its value in observations that it made in President of the Republic of South Africa and
others v South African Rugby Football Union and others :4
‘The institution of cross -examination not only constitutes a right, it also imposes
certain obligations. As a general rule it is essential, when it is intended to suggest
that a witness is not speaking the truth on a particular point, to direct the
witness' s attention to the fact by questions put in cross -examination showing that
the imputation is intended to be made and to afford the witness an opportunity,
while still in the witness -box, of giving any explanation open to the witness and of
defending his or her character. If a point in dispute is left unchallenged in cross -
examination, the party calling the witness is entitled to assume that the
unchallenged witness's testimony is accepted as correct. This rule was
enunciated by the House of Lords in Browne v Dunn and has been adopted and
consistently followed by our courts. ’ (Footnotes omitted .)
4 President of the Republic of South Africa and others v South African Rugby Football Union and
others [1999] ZACC 11; 2000 (1) SA 1 (CC) para 61.
[47] Before turning to assess the evidence of the first respondent , it is appropriate that
the material terms of the consent order be stated . The principal terms read thus :
‘1. Primary care of S[…] D[…] R[…] , a boy born of the parties ’ union on 05
May 2017 (“S”) is awarded to the (sic) D[…] R[…] R[…] (“D”) and it is directed
that S shall have his primary place of residence with D.
2. Primary care of M […] R[…] , a girl born of the parties ’ union on 21
September 2021 (“M”) is awarded to the (sic) S[…] D[…] R[…] (“S”) and it is
directed that M shall have her primary place of residence with S. ’
[48] The consent order also dealt with the rights of contact of the non -custodial parent
to the child not in their custody.
[49] Thus, the consent order was designed and intended to preserve the status quo .
The same status quo that the applicant wished to upend by bringing his application , and
which had been the genesis of the trial that I had just heard.
[50] Reverting to the evidence of the first respondent, she stated that she held, inter
alia, a Bachelor of Arts degree in Psychology and a post -graduate diploma in public
administration. She has registered her own company , which is active in the health care
field, and she is its only director.
[51] She explained that she resides in her parents’ home in Pietermaritzburg. She
accepted that she had agreed to relocate to Johannesburg but added that such
agreement was subject to two conditions , namely that the applicant found employment
and that he found a flat for her and their children to live in independently of the
applicant’s family . The applicant assured her that both conditions would be achieved by
him within three months. She testified that it was n ever achieved. According to her, h e
could not have secured employment within that period because after three months he
had still not prepared his curriculum vitae for circulation to prospective employers .
[52] The first respondent indicated further that the applicant had been unemployed
from 2016 to 2021. After moving to Johannesburg, he reported to her at one stage that
he was feeling suicidal and that he thought he should return S to her. But he did not do
so. The applicant refused to discuss the situation with her , but, instead , created a
WhatsApp group , the members of which were the applicant, the first respondent and the
applicant’s two sisters.
[53] What then transpired , according to the first respondent’s evidence, was that the
applicant shifted the onus of finding employment and independent accommodation from
himself to the first respondent: she should go to Johannesburg and find employment
and the desired accommodation .
[54] On the issue of parental alienation, t he first respondent denied that she had ever
‘coached’ S . She stated that she was not told when S would have his sessions with Ms
Main -Baillie , nor was she present when they occurred. She stated that even i f she had
wished to do so, she simply did not have th e opportunity to do so .
[55] The first respondent testified further that w hile the applicant was in
Johannesburg, he made no effort to contact M. Even when he had come down for this
trial, he still made no effort to see M.
[56] One of the complaints made by the applicant in his evidence was that he had not
known of the birth of M and had not been allowed to attend her birth . The first
respondent admitted that the latter allegation was true. But there was an explanation for
this. M was born during the height of the COVID -19 pandemic and no -one, not even a
prospe ctive father, was permitted to attend the birth of their child in hospital . That is a
lived experience which resonates .
[57] I remain mindful of the fact that I never saw the first respondent subjected to the
pressures of cross -examination, but I found her overall to be a good witness who
expressed herself clearly and well. I also assessed her to be long -suffering , having
stood by the applicant while he fought his battle against drug addiction. Her evidence
had the ring of authenticity to it and was not given, in my opinion, in order to secure an
advantage for herself, but rather was comprised of sincere response s to the questions
that were put to her.
[58] As to why she agreed to the terms of the consent order , the first respondent
explained that S had been in Johannesburg for three years and appeared to be settled
there. If he were required to relocate to Pietermaritzburg , he would be distressed and
would have to commence schooling at a new school where he would not have any
friends. She did not want him to be unhappy. In those circumstances, she indicated that
she was prepared to sacrifice her needs to be with him to ensure that he was happy.
[59] This was the first indication that one of the parents was prepared to make their
interests secondary to the interests of a child.
The report of the second respondent
[60] The final piece of evidence to be considered is the report that I ordered to be
produced by the second respondent. It is comprised of a report from the Family
Advocate (the Family Advocate) and a report from a family counsellor (the Family
Counsellor) .
[61] The criticism that I had of the report of Ms Main -Baillie is of equal application to
both of these reports: they, too, are hopelessly out of date. Both reports are dated 20
September 2022 . As already observed, m uch has changed since then .
[62] The Family Advocate reported that when she considered the matter, the
applicant was already of the view that S was well -settled in his new home and school . In
fact, h is sojourn there had really only just begun. The first respondent had informed the
Family Advocate that it was not desirable , in her view, to separate the children . This
seemed to accord with the views of the Family Adv ocate who reported that :
‘The Family Advocate does not endorse separating siblings especially during this
(sic) tender ages. The minor child in question is much too young to be separated
from his sibling. ’
[63] The Family Advocate found the first respondent to be a:
‘... stable and a competent parent to be taking care of her young children.’
The Family Counsellor also recorded in her report that the applicant had no concerns
about the first respondent’s parenting capacity nor her place of residence. As a
consequence, both the Family Advocate and the Family Counsellor recommended that
both children reside with the first respondent.
Argument
[64] Having heard all the evidence and having been presented with the consent order,
I indicated to counsel that I required written argument on why the terms of the consent
order should be accepted by the court. Both parties counsel duly submitted written
argument s of differing quality.
[65] Mr Ender, for the applicant , emphasised in his written argument that the court
was required to ensure that the best interests of the minor children were protected . He
drew attention to the fact that S has now resided in Johannesburg for three years and
that his parents, in agreeing to the terms of the consent order, have implicitly regar ded it
as being in his best interests for him to continue to remain in Johannesburg.
[66] On whether it should be ordered that S return to the care of the first respondent,
it was submitted that such an order would be ‘extraordinary’, because there was no:
‘… professional, objective and thorough psychological assessment ’
performed on S to establish how that move would affect him. In truth, a similar argument
could be raised on the initial decision that the applicant and first respondent took to
separate the children: there was no psychological assessment performed on S then
either to assess whether h e would be able to cope with the relocation. The fact of the
matter is that children are moved on a daily basis throughout our country without
deleterious effects upon the m. Children whose parents are transferred by an employer
from one town to another or from one province to another or even from one country to
another are required to commence new friendships and endure different surroundings
when they move. The same happens when they graduate from a primary school to a
high school. Children are resilient and they adapt far better and quicker to change than
adults generally do.
[67] It was further submitted that to the extent that the court was considering ordering
S to return to the care of the first respondent, there was no counter -application to
motivate why this should occur . I do not attach any significance to this submission , for
one of the issues defined in the order of Sibiya J was whether the children should be
separated from each other . It would be nonsensical for me to determine that issue and,
in the event of me finding that they should not be separated, not be able to order that
they resume living together.
[68] The argument was advanced that S was thriving in the environment in which he
now found himself. That may be so. But what is good for S is not the only factor that
requires consideration. M has the right to develop a relationship with her brother , as any
sibling has. In focussing only on S, the needs of M are cast into darkness.
[69] Mr Ender submitted that :
‘… there is no evidence to support a conclusion that the Plaintiff was governed by
egocentricity or selfishness, that he considered the Defendant ’s views to be
irrelevant, or that his own rights should trump her right to pursue a fulfilling and
meaningful career of her own. ’
I cannot agree with that submission for the simple reason that Ms Main -Baillie herself
recognised that the applicant, her client, was entirely self -centred, as previously
discussed in this jud gment.
[70] It was further argued that there was nothing to contradict the applicant’s evidence
that what little work he was able to secure in Pietermaritzburg was insufficient to allow
him to provide for his family. I n formulating that submission, no regard has been paid to
the evidence of the first respondent that from 2016 to 2021 , the applicant simply did not
work . She contradicted the applicant but because she was never cross -examined, her
evidence, ironically give n the nature of the submission, was itself not contradicted .
[71] Finally, it was submitted that the consent order would ensure that each child
would remain with their current primary care giver. On the evidence before me, that
statement insofar as it relates to S is simply incorrect . On the evidence before me, the
applicant is not his primary caregiver . The applicant’s extended family appears to be the
true caregiver.
[72] The first respondent’s counsel, Mr Dwayi, submitted what can only be described
as thoroughly confusing written argument. That conf usion is demonstrated by the
following submission that appears in the argument :
‘7.1 We submit that:
7.1.1 S should have his primary place of residence with the Defendant at No.
8[…] T[...] Road, Pelham, in P ietermaritzburg ;
7.1.2 M should have her primary place of residence with the Defendant at No.
8[…] T[...] Road, Pelham, P ietermaritzburg ;
7.1.3 It would not serve the best interests of S and M for them to be separated
and have different custodial parents.’
[73] Thus, the submission was made that the children should no longer be separated
but should be permitted to both reside with their mother , the first respondent, in
Pietermaritzburg. Having made that submission , the first respondent added a contrary
final submission in the following terms:
‘7.1.20 We submit that the proposed order will be in the best interests of the minor
children , that:
1. Primary care of S[…] D[…] R[…] , a boy born of the parties ’ union
on 05 May 2017 (“S”) close brackets is awarded to the (sic) D[…] R[…]
R[…] (“D”) and it is directed that S shall have his primary place of
residence with D.
2. Primary care of M […] R[…] , a girl born of the parties ’ union on 21
September 2021 (“M”) is awarded to the (sic) S[…] D[…] R[…] (“S”) and it
is directed that M shall have her primary place of residence with S. ’
[74] Despite the earlier submission that separation should not occur, separation is
what Mr Dwayi ultimately submitted should occur. It is clear that no thought whatsoever
went in to the preparation of the argument: it was a copy and paste exercise that
unfortunately also duplicated the grammatical errors that appear in the consent order.
[75] That argument gave me no insight into why the first respondent believed the
consent order should be granted. That , after all, was the reason why I called for the
written argument.
Analysis
[76] The order of Sibiya J referring the matter to trial identified five issue s that needed
to be determined by the court hearing the oral evidence. The last issue was whether the
children should be separated and have different custodial parents. In my opinion, that
ought to have been the very first issue to be determined. If the answer to that issue was
that they should not be separated , then the other issue s identified , save for the quest ion
of contact , largely fall away.
[77] All the witnesses that testified acknowledged that it was desirable that the
children be raised together. This accords with the conventional thinking on the issue,
and the thinking of courts, generally. In Van der Linde v Van Der Linde,5 the court
opined that, ceteris paribus , siblings should not be unnecessarily separated from each
other. The court explained that the reason for this is that:
‘… siblings experiencing the trauma of a divorce tend to form a bond with each
other. A bond which to a great extent gives them a feeling of security against the
'onslaught from outside'. On the other hand, however, it wi ll be necessary for
children to be separated from each other if one child with the custodian parent is
not properly cared for or is neglected. Also if the change will be a
substantial improvement.’
[78] There are other convincing reasons why siblings should be kept together where
possible. One obvious r eason is that children learn not only from their parents but also
from their brothers and sisters. Sharing a home and a relationship with a sibling allows a
child to observe and copy social skills already possessed by their sibling and being with
a sibling helps the development , over time , of emotional intelligence. There are a myriad
of benefits that ha ve contributed to the conventional wisdom that children born to the
same parents should be kept together and raised to adulthood together.
[79] The Family Advocate has recommended that S and M be raised under a single
5 Van der Linde v Van der Linde 1996 (3) SA 509 (O) at 510F -G in the headnote .
roof. I do not lose sight of the fact that the recommendation was made two years ago ,
but it accords with sound common sense. I appreciate, further, that I am not obliged to
slavishly follow the recommendations of the Family Advocate ,6 but in this instance , I am
not persuaded that the Family Advocate’s recommendation is unsound.
[80] It is so that the high court is the upper guardian of all minors when it comes to
determining what is in the ir best interests . The high court , in acting in that capacity ,
must identify what is in the best interests of minor children and t hen make orders that
ensure that those interests are served and safegu arded.7 In doing so, the high court
essentially arrives at a value judgment. In Terblanche v Terblanche ,8 the court identified
its powers where the issue is the custody of minor children as follows :
‘… 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
limitations of the evidence presented or contentions advanced by the respective
parties. It may in fact have recourse to any source of information, of wha tever
nature, which may be able to assist it in resolving custody and related disputes. ’
[81] Considering the facts of this matter and the late development that occurred on
the final day of trial , I have no doubt that the consent order presented to the court by the
parties was formulated at the instance of the applicant in an attempt to salvage
something from what was becoming a desperate situation for him. The evidence that
had been called brought to the foreground two applicable principles: very young children
are not easily separated from their primary caregiver and the previously mentioned
principle that siblings should generally be kept together.
[82] If those two principles are applied, then, as Mr Willows stated in a letter dated 28
February 2024:
6 ZDE v CE [2024] ZASCA 159 para 20; NV v CL [2022] ZAFSHC 284 para 65.
7 Girdwood v Girdwood 1995 (4) SA 698 (C) at 708J -709A.
8 Terblanche v Terblanche 1992 (1) SA 501 (W) at 504C -D.
‘… it will require very detailed analysis and well substantiated motivations to
support that these circumstances be maintained based on the opinion that the y
meet the criteria of the best interests of the children.’
The circumstances referred to in the letter was the continued separation of the minor
children in this matter . In other words, there would have to be persuasive evidence that
something that is palpably not in the children’s best interests should be permitted to
prevail. I discern no such evidence in this matter. The only factor that can be advanced
by the applicant is that S has been where he is for the past three years.
[83] The consent order appears to directly acknowledg e the correctness of at least
one of the two principles that I have just mentioned , namely that young children should
not be easily separated from their primary caregiver . This would appear to be the case
because the applicant, in agreeing to the terms of the consent order, no longer s ought
the exclusive care of M. This was a significant development , for the care of M was the
catalyst that prompted the bringing of this application. The applicant already had the
care of S and wanted the care of M as well. I do not accept that the abandonment of the
care of M was as a result of a Damascus Road experience by the applicant in which he
was suddenly and powerfully struck by the realisation of the folly of his trying to pry M
away from the first respondent. Had he applied his mind to this before bringing his
application , the difficulty of what he proposed to do would have leapt out at him. The
evidence shows that h e is a self -oriented person, and the consent order was intended to
ensure that he did not lose care of S.
[84] The consent o rder came after three days of evidence and it attempted ,
essentially, to reverse the evidence heard on those days . It sought to place the parties
back at the point that they were in before the trial began. My difficulty with the consent
order is that it does not serve the best interests of the minor children. There is no sound
reason why the children should not be raised together .
[85] The first respondent was ill advised in agreeing to the consent order . But as
upper guardian of minor children, this court is not obliged to give effect to agreements
incorrectly struck that do not serve the interests of minors . In ZDE v SC ,9 the Supreme
Court of Appeal observed that:
‘Whilst the parties’ right to contract should be respected, in matters dealing with
minor children, the court has a duty to enquire whether any arrangement by the
parties would serve the best interests of A. Even though Mrs E had initially bound
herself to the settlement agreement, the high court, as upper guardian of A, had
a duty to interrogate the facts and the arrangements made in the agreement
insofar as they related to the best interests of A. The court had to be satisfied
that the provisions made for the welfare of A were satisfactory and in her interest.
[86] I have adopted this approach in considering and evaluating the terms of the
consent order and having done so, I do not intend giving effect to it.
[87] Why I do not believe that the consent order serves the best interests of S and M
is that it has as its central premise the idea that the continued separation of the children
is in their best interests and cannot be unwound because of the fact that S has resided
with his father for the past three yea rs. That is false logic. The true question to ask is
whether the separation of the children from each other is in the ir best interests . That
question cannot simply be answered by considering only the best interests of S , which
appears to me to be precisely what the applicant has done in crafting his written
argument along the following lines :
(a) S is thriving in Johannesburg; and
(b) S is loved by the extended family with whom he lives
and therefore he cannot be placed in the care of his mother.
9 ZDE v CE [2024] ZASCA 159.
[88] No argument is advanced at all that considers the problem from the viewpoint of
M. The best interests of both children must be considered , not just the best interests of
one of two children .
[89] I have considered whether the first respondent’s agreement to compromise her
interests in favour of her son’s interests should not be acknowledged and given effect
to. She, after all, is his biological mother and knows him best. I do not know him at all. If
she believes the consent order to be in his best interests, should I not honour this?
[90] I have decided not to, for a number of reasons. S is seven years old, shortly to be
eight , and he is young enough to make a fresh start again in P ietermaritzburg. I have no
doubt that the relocation that I intend to order will occasion days of unhappiness in S’s
life, but the resilience of young people teaches us that any lived misery is but of brief
duration, and he will overcome it. The joy that he will undoubtedly experience in
resuming his relationship with his sister will, perhaps, take the edge off his immediate
unhappiness. It would be intolerable , in my view , if, at the age of seven , S is
permanently deprived of the right to grow up with his sister and if M, correspondingly , is
deprived of the right to mature alongside her brother . They both have the right to remain
with each other , provided that there are no compelling circumstances that exist to make
that impossible or undesirable. I can discern no such limiting factors and there are no
factors that dictate that I should order that the two children remain apart.
[91] The answer to the fifth question posed by the order of Sibiya J is thus that S and
M should not be separated and that the parent who should be awarded their custody is
the first respondent.
[92] The only other issue that needs to be addressed , therefore , is the applicant’s
rights of access to the children . Helpfully, the parties, in agreeing to separate the
children in the consent order , agreed to their respective rights of access to the child not
in their care. The applicant consented to an order allowin g the first respondent to have
contact with S, presumably on the basis that it was fair and reasonable . He can
therefore have no complaint if he is granted that same contact.
[93] As regards contact with M, the applicant’s own witness , Ms Main -Baillie, stated
that he had no real relationship with her. I do not think that in those circumstances the
applicant should be afforded overnight contact with her before she is of school -going
age. That interregnum w ill allow him to nurture and cultivate his relationship with her .
Costs
[94] I am aware that in matters such as the present, courts are generally reluctant to
grant costs orders because the parents in commencing , and continuing , with litigation
are acting in what they believe to be the best interests of their children.10
[95] It is so that t he applicant brought the application and claimed primary care of both
children. He ultimately abandoned that relief in agreeing to the consent order and, in the
end, sought merely to preserve the existing status quo . Costs of litigation are awarded
in the exercise of a court’s discretion. After consideration of the competing interests, I
am of the view that the interests of justice would be best served if I were to order that
each party shall pay their own costs.
Order
[96] I consequently grant the following order:
Primary care of S and M
1. Primary care of S[…] D[…] R[…] (S), a boy born on 5 May 2017, and M[…] R[…]
(M), a girl born on 21 September 2021, is awarded to the first respondent and both
children shall have their primary place of residence with the first respondent.
10 F v F 2006 (3) SA 42 (SCA) para 28; TN v NN 2018 (4) SA 316 (WCC) para 31 ; WB v RB and another
2024 (4) SA 316 (KZD) para 45.
Contact by the applicant with S
2. The applicant shall be entitled to exercise contact with the minor child S as
follows:
(a) where possible, and only following prior confirmation by the applicant with
the fir st respondent at least 72 hours prior to the intended visit, on the second
and fourth weekends of every month commencing on Friday afternoon at 14h00
and terminating on Sunday evening at 18h00;
(b) during the long school holidays, which are to be divided in tw o and shared
equally between the applicant and the first respondent; and
(c) during the short school holidays, which are to be alternated between the
applicant and the first respondent .
3. In addition to the abovementioned contact, the applicant shall be entitled to
reasonable telephone and video contact with S on a daily basis by arrangement with the
first respondent.
Contact by the applicant with M
4. The applicant shall be entitled to exercise contact with the minor child M where
possible, and only following prior confirmation by the applicant with the first respondent
at least 72 hours prior to the intended visit, on the second and fourth weekends of every
month.
5. Such contact shall be exercised as follows until M reaches school going age:
(a) commencing on Friday afternoon at 14h00 and terminating at 18h00 on
Friday evening;
(b) commencing on Saturday morning at 09h00 and terminating on Saturday
evening at 18 h00; and
(c) commencing on Sunday morning at 09h00 and terminating on Sunday
evening at 18h00 .
6. In addition to the abovementioned contact, the applicant shall be entitled to
reasonable telephone and video contact with M on a daily basis by arrangement with
the first respondent.
7. Upon M attaining school going age, the parties, or any one of them, shall be
entitled to seek the variation of the order relating to the first applicant’s contact with M.
Costs
8. There shall be no order as to costs.
___________________________
MOSSOP J
APPEARANCES
Counsel for the applicant s: Mr G E Ender
Instructed by : Velile Tinto and Associates
Suite 3, Terrace View
Aspen Place
8 Rydall Vale Office Park
Douglas Saunders Drive
La Lucia Ridge
Locally represented by:
J Leslie Smith and Company Inc
332 Jabu Ndlovu Street
Pietermaritzburg
Counsel for the first respondent : Mr M N Dwayi
Instructed b y: Legal Aid South Africa
187 Hoosen Haffejee Street
Pietermaritzburg
Counsel for the second respondent: No appearance