SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy


IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION – GQEBERHA )

CASE NO.: 3051/2020
Matter heard on : 14 January 2025
Order delivered on: 15 January 2025
Reasons delivered: 03 February 2025

In the matter between: -

M[...] D[...] Applicant

and

L[...] N[...] First Respondent

CHRISTELIKE -MAATSKAPLIKE RAAD (GQEBERHA) Second Respondent


JUDGMENT – REASONS FOR ORDER


Rossi AJ:

Introduction and background

[1] This urgent application concerns the primary care and contact of two children ,
a daughter C […] born on 20 Apri l 2015 (currently 8 years of age) and G[…] , a son,
born on 29 November 2016 (currently 7 years of age). It served before me on the
return date being 14 January 2025 , a rule nisi in terms of Part B of the notice of
motion having been granted on 17 December 2024 . On 15 January 2025 I confirmed
the rule nisi and indicated that my reasons would follo w. Accordingly, these are my
reasons.

[2] In terms of the rule nisi the first respondent was called upon to show cause
why a final order in the following terms should not be granted:

‘3.1 That the recommendations of the office of the Family Advocate
contained in their report dated 19 November 2024, in respect of the minor
children…be and are hereby made an order of court as follows:

PARENTAL RESPONSIBILITIES AND RIGHTS

3.1.1 The applicant and first respondent shall remain the co -holders of
parental responsibilities and rights in respect of the children as contemplated
in section 18 of the Children’s Act 38 of 2005.

CARE AND CONTACT

3.1.2 The children shall primarily reside with the applicant , subject to the
applicant appointing a suitably qualified professional (therapist or
psychologist) to provide therapeutic support to the children during the
transition process.

3.1.3 That Elise Fourie be appointed to provide therapeuti c support to the
children through the transition process, as required in paragraph 3.1.2 above.

3.1.4 That the change in [primary ] residence take place on Tuesday the 14th
of January 2025.

3.1.5 That the first respondent engage the services of a psychol ogist to
develop her insights into the needs of the children.

3.1.6 The first respondent shall have the right to exercise contact with the
children subject to the following:

3.1.6.1 Commencing from the date of the court order, that contact for
the firs t three months be limited to one voice note per week,
the contents of which is to be screened by the appointed
parenting coordinator;

3.1.6.2 After a period of three months as envisaged above, the
contact will be under supervision for a period and at a v enue
identified by the parenting coordinator appointed herein;

3.1.6.3 Supervised contact to be extended gradually and in
accordance with the recommendations made by the
appointed parenting coordinator.

3.1.7 That Ani Grobbelaar of Family Reconnect, Pretoria be appointed as the
parenting coordinator to facilitate communication between the parties and to
assist the parties with the implementation of the care and contact
arrangements incorporated in any court ord er, including the phasing in of
contact arrangements at a place as recommended by the parenting
coordinator.

3.1.8 That a copy of the Family Advocate’s report and Dr Le Roux’s report
shall be made available to the appointed [parenting] coordinator and
appointed therapists of the children and the first respondent.

3.1.9 In the event of a dispute arising between the parties relating to the
implementation of the court order (including the first respondent’s contact),
that the parenting coordinator be autho rised to mediate the dispute and failing
any agreement between the parties, to have the authority to issue directives
pertaining to the implementation of the court order, where necessary and
regarding structure (i.e duration of contact, place of contact) a nd supervision
of the first respondent’s contact with the children and in doing so the parental
coordinator shall have the right to do the following:

3.1.9.1 Consult with the parties, any family member or extended
family or stepfamily member or carer invo lved with the
children, school teachers and personnel, and such persons
authorised to provide relevant information to the [parenting]
coordinator.

3.1.9.2 The directive issued by the [parenting] coordinator shall be
binding on the parties until varied by a court.

3.1.10 The first respondent shall provide proof of her therapeutic process to
the [parenting] coordinator and the [parenting] coordinator is authorised
to liaise with the first respondent’s therapist and the children’s therapist
to enable the [p arenting] coordinator to issue informed directives
regarding the first respondent’s contact with the children.

3.1.11 That the first respondent shall pay the costs of Part B of the
application.’

[3] In terms of Part A of the notice of motion, which was granted on 12 December
2023, the Family Advocate ’s offices were directed to re -open their investigation into
the best interests of the children and provide a report and recommendations
specifically regarding the applicant’s care and contact. In addition, Dr Le Roux1 was
directed to furnish written recommendations in respect of the structure of parental
rights and responsibilities, with specific reference to the children’s wishes, care and
residency and to make findi ngs on whether the first respondent has alienated the

1 The court order in Part A which provides for Dr Le Roux’s appointment makes provision for the
appointment of an alternative independent child psychologist agreed upon by the parties, and failing
such agreement , one to be appointed by the Health Professions Council of South Africa .
children from the applicant and if it is found to be case to propose therapeutic
interventions to remedy the situation and to prevent further alienation.

[4] The applicant and first respondent were directed in terms of Part A to co -
operate with the investigations of the child psychologist , and although not specifically
mentioned , such direction would, by application of logic and implication , also include
an obliga tion to co-operat e with the Family Advocate.

[5] The report by Dr Le Roux was finalised on 10 Octobe r 2024. This report was
duly considered by the offices of the Family Advocate , whose report inclusive of the
report by social worker, Ms Gans, is dated 19 November 2024. I shall return to these
reports in due course.

[6] A brief summary of the historical landscape follows. The applicant , a
businessman currently residing in Pretoria, Gauteng , is the biological father of the
children. The first respondent, a local radio personality, is the biological mother. She
resides in Gqeberha and until the interim order of 17 December 2024 ,2 the children
have primarily resided with her. The parties were involved in a romantic relationship
during 2012 to 2018, during which time the children were born. Both parties are co -
holders of full parental rights and responsibilities.

[7] The second respondent was cited in the proceedings to facilitate the
appoint ment of a social worker to act as parenting coordinator.3

[8] In terms of an earlier court order dated 19 January 2021 ,4 the offices of the
Family Advocate were directed to urgently investigate and report on the best
interests of the children specifically with regard to primary residence , care and
contact. Pending the investigations and report by the Family Advocate, an interim
order was granted in the following material terms :


2 Which order was granted by Eks teen J.
3 A consent letter signed by Ms Ani Grobbelaar a social worker employed by Family Reconnect forms
part of the application papers.
4 Which order was granted by Potgieter AJ.
(a) The children would continue to reside with the first respondent.

(b) The applicant would be permitted to exercise telephonic/video contact
with the childre n every Tuesday and Friday from 17h00 until 18h00.

(c) In the first week of every month, t he applicant would be permitted to
exercise contact with the children from a Monday at 10h00 until the
following Monday at 10h 00.

(d) Provision was also made fo r holiday contact ; contact on the applicant’s
birthday ; the children’s birthdays and on religious h olidays (rotating
between Christmas and Easter).

(e) The applicant was directed to pay R1 000.00 per month as a cash
contribution towards the children’s maintenance and to purchase clothing
for the children twice a year.

[9] For several months after the order o f January 2021 , the applicant e xercised
contact with th e children. In October 2021, the first respondent terminated his
contact . According to the applicant, his contact was frustrated due to the first
respondent changing residences and her cell phone number on several occasions.
The first respondent disputes that she has frustrated contact. The report by the
Family Advocate was finalised on 6 December 2021. In terms of this report, it was
recommended that the applicant would have contact with the children , however,
owing to financial constraints and not knowing the first responden t’s whereabouts ,
the applicant did not approach the court to have these recommendations made an
order of court.

[10] According to t he applicant he was financially in a position to instruct his
attorneys in March 2023. In August 2023, the first respondent was located and in
November 2023 this application comprising of Part s A and B (in its unamended form)
was launched. I have already mentioned that Part A was granted on 12 December
2023. Part A served two purposes. Firstly, it directed the Family Advocate to
reinvestigate and file a report , and secondly, it granted t he applicant interim contact
with the children for a period of one week in December 2023 .

[11] Prior to this, the applicant had no contact (physical or telephonic) with the
children since October 2021. Following the one week contact in December 2023 , the
applicant again had no physical contact with the children until 10 August 2024, when
he met with them during Dr Le Roux’s assessment . There has been some telephonic
contact with the children, but such contact has been far from ideal. These
encounters are either cut short by the children or the applicant is scorned by them for
his lack of financial support.5

[12] The applicant contends that the first respondent frustrates his contact,
whereas the first respondent says he is estranged from the children and has made
no effort to connect with them. A significant issue for the first respondent is the
applicant’s failure to adequately financially provide for the children contending th at
the paltry sum of R1 000.00 is wholly insufficient.

Dr Le Roux’s report

[13] I now turn to the report of Dr Le Roux , who is a registered clinical psychologist
with inter alia a PhD in psycho -analytic psychotherapy and a PhD in child and
forensic p sychology .6 She explains the ambit of her appointment thus:

‘The examiner was appointed on 28 November 2023…to investigate the
circumstances of the minor children and to furnish written recommendations in
respect of the structure s of parental rights and responsibilities. The order stated that
(i) the investigation should focus on the minor children’s wishes, care and residency;
(ii) make findings on whether the [first] res pondent has alienated the minor children
from the applicant; and , if it is found that the [first] respondent has alienated the
minor children, propose therapeutic interventions to remedy the situation and prevent
further alienation in future.’

5 Dr Le Roux captures the contents of several tele phonic discussions in her report.
6 Dr Le Roux’s qualifications do not appear to be in dispute.

[14] In terms of her assessment procedure, Dr Le Roux undertook psychometric
assessment of both parties by means of the Million Clinical Multiaxial Inventory -IV
(MCMI -IV). These results were in turn independently verified by an off -site
independent bureau licensed to proc ess psychometric results and provide a
comprehensive assessment report. She conducted detailed clinical interviews with
the parties to assess personality functioning, coping mechanisms, typical defence
mechanisms and possible underlying psychopathology . Sh e undertook clinical
assessment of the children by way of structured clinical interviews as well as clinical
observations of the children and their interactions with the parties and obtained
collateral information from various sources.

[15] The psychometric assessments and clinical interviews of the first respondent
and applicant were conducted on 5 July 2024 and 9 August 2024 respectively. The
forensic assessment of the children and the children with the applicant on 12 July
2024 and 10 August 2024 respectively.

[16] The personality assessment of both parties are comprehensively detailed in
the report. I do not intend to deal with this at great length, save and only to the extent
that such findings inform the ultimate relief granted.

[17] Dr Le Roux notes that she initially established a good rapport with the first
respondent, but that she expressed a reluctance for the children to see the applicant
for the investigation process. Ultimately, she agreed. Following the applicant’s
interaction with the children, the first respondent stopped communicating with Dr Le
Roux .

[18] The first respondent’s participation in the investigation falls short of what is
expected of a parent acting in accordance with the best interests -standard . This has
served as a repeating theme and will be returned to momentarily . Dr Le Roux noted
that on clinical assessment the first respondent was ‘extremely evasive and passive
aggressive to the point of exhaustion’. She displayed reluctance to meet with Dr Le
Roux citing that she did not want to disrupt the children’s routine, although it had
been explained to her on three occasions that the children were not required at the
initial assessment. She failed to atten d the first scheduled meeting again citing the
same reason. This was at a time when she already knew that they children were not
required to attend . She ultimately met with Dr Le Roux in July 2024.

[19] She failed to provide a detailed timeline of her life and collat eral information
regarding the children’s developmental histories. Requests for a home visit were
ignored. Following the children meeting with their father on 10 August 2024, Dr Le
Roux sought a further assessment of the children. Several telephonic, email an d
WhatsApp messages were left unanswered . However, on 14 August 2024 she asked
Dr Le Roux to intervene and approach the applicant in regard to outstanding school
fees.

[20] According to Dr Le Roux the first respondent presents as psychologically
distressed and displays a significant personality dysfunction. First respondent
displayed several aspects of a narcissistic/turbulent personality disorder . She
presented with a lack o f capacity for mentalisation , which is a lack of capacity for
mirroring the feelings of others and a general lack of playfulness and a lack of
reflective capacity. Individuals with this type of personality constellation present with
great difficulty in parenting. Children are typically viewed as objects for emotional
gratification and the loneliness, depression and despair experienced by these
parents typically know no boundaries, resulting in children frequently expressing
sympathy and con cern for what is typically perceived as the victimised parent. The
first respondent displayed very little insight into the destructive impact of embroiling
the children in adult concerns and this, according to Dr Le Roux, contributed
significantly to the c hildre n’s perception of their father. Dr Le Roux states ‘(T)he
overall narrative of victimising has resulted in a lack of balance in the [first]
respondent’s narrative and in essence germinated the seeds for parental alienation.
The result is that the chil dren have internalised the three pillars of parental alienation
i.e (1) their mother is a victim of their abusive and sadistic father who withholds
money from them and makes her (and them) suffer as a result; (2) that their father
cannot protect them; and (3) that their father does not provide for them.’

[21] According to the results of the applicant’s MCMI -IV profile he presented as a
well-functioning adult with no clinical disorders or personality traits of concern. On
clinical scrutiny , there was some evidence of a conscientious/compulsive personality
type, but he ultimately presented as ‘probably more capable to respond empathically
and appropriately to the minor children’s emotional needs for nurturing and growing
independence. ’

[22] The salient features of Dr Le Roux ’s assessment of the children are :

(a) C[…] conveyed to Dr Le Roux that her father does not love her and her
brother, since he does not provide for them and makes their mother
struggle with money .

(b) C[…] was party to information contained in court orders, financial affairs
and details of the first respondent’s struggles wi th her own mother and
other family members . C[…] displayed protection of her mother and
brother and a tendency to distort information to support the narrative of
maternal victimisation. These signs typically attest to the presence of
parental alienation wh ich ‘presents in families in themes of complete
rejection of the one parent by the children, a lack of finding anything to
say about the alienated parent and no longer presenting mixed feelings
towards the parent. It is further described as the programming of children
to distance themselves emotionally from one parent and to learn to
despise the target parent. In most cases, parental alienation presents as
passive -aggressive comments by the one parent about the other parent in
the presence of the children, blocking some forms of communication, or
ensuring periodic unavailability of the children to visit with the alienated
parent. Children also get caught up in arguments between the parents, is
often guilted into taking sides with the alienated parent and there is great
pressure on the children to reject the other parent entirely and demand
allegiance…All these dynamics were evide nt on clinical assessment of
this family and the interaction between the [first] respondent and the
children.’

(c) Upon the children’s arrival at the assessment with the applicant (whom
they had not seen in months): ‘(T)hey both immediately indicated to him
that the police were coming to arrest him for not paying money towards
them and their mother. C[…] immediately started interrogating her father
about money…After the initial reprimands by C[…], both children relaxed
and enjoyed the interaction with their father. C[…] not ed that they were
informed by their mother that they only had to stay for five (05) minutes
and could leave when they wanted to.’ Ultimately the children settled into
the applicant’s company and interacted normally with him. C[…] remained
weary and continued to remind Dr Le Roux and her brother that they had
to leave to attend a family birthday.

(d) Following what Dr Le Roux describes as a positive interaction between
the children and applicant, the children were not interviewed again as the
first respondent did not respond to requests for a further interview. This,
according to Dr Le Roux, is probably because the positive int eraction was
perceived by the first respondent as a betrayal.

(e) There is evidence that the children have been alienated from the applicant
which has resulted in the co-creation of the pre -existing dynamics
between the parties. At present given the strained relationship between
the parties, the lack of contact with other family members, and the
perception that the applicant is a sadistic and depriving figure, the
alienation has become an entrenched dynamic of the family. There is no
ameliorating and/or suppor tive encouragement of the relationship
between the applicant and the children , as the first respondent supports
the view that they will be better off with a nother father figure.7

(f) The children have internalised beliefs that they are not loved and are
aban doned by their father.

[23] In her discussion section, Dr Le Roux states that there is evidence of
parental alienation, and problematic family dynamics, which are not adequately

7 G[…] he conveyed the following to Dr Le Roux ‘My dad does not care for us. He does not love us. A
father ca res for his children and he will never forget about his children. He is a freak. He is a goat. I
will get myself a better father. He forgets about me and he leaves me and my mother and my sister.’
addressed in the Family Advocate ’s report of 2021. The recommendation
‘exacerbated [ the first respondent’s ] already entrenched personality dynamics of
viewing the children as property and embroiling them in adult conflicts. This conduct
has significantly contributed to the current situation where the mino r children and
psychologically in crisis. ’8

[24] According to Dr Le Roux the current arrangement is detrimental to the
psychological health and adjustment of the children and remedies should be placed
in action as a matter of urgency. She goes on to analyse maintaining the status quo
(i.e the children remaining with their mother ) which she suggests is inappropriate
given the historical difficulties in the exercise of contact and the children displaying
significant symptoms of parental alienation.9 Furthermore, and for similar reasons,
she suggests that share residency is not a viable option.

[25] In regard to the children primarily r esidin g with the applicant, Dr Le Roux
states that the applicant has displayed the parental capacity to act as primary carer
and will be able to foster an on -going relationship between the first respondent and
the children. He has also displayed a more balanced and reasonable alternative in
viewing life and a psychological space to foster individualism without the children
being left responsible for the emotional needs of either parent. It was also opined
that he would be more likely to foster a healthy relationship between the children and
the first respondent.

[26] Dr Le Roux concludes that the focus ‘should be on the developmental and
emotional needs of the children , who are clearly not coping with the current situ ation
and display symptoms of children who are alienated from their father ’ and that her
recommendations should be viewed as possible remedies to be considered by the
Family Advocate and the court.


8 My own emphasis.
9 And being at risk of developing compl ex posttraumatic disorder.
[27] Dr Le Roux recommended that both parties maintain their status as co -
holders of parental rights and responsibilities10 but that the children’s ‘current
emotional and developmental needs will be better served by primary residence with
the applicant. The complex history does not bode well for future parental co -
operation and it is the examiner’s respectful view that should the children remain in
the care of the [first] respondent they will become completely alienated from their
father and psychologically develop very serious psychopath ology in the long run .
The children are the unfortunate victims here of a failed parental system. It is
reasonable to assume that the [first] respondent will not accept this recommendation.
Being mindful of the historical position in this matter, the change in primary care is, in
the examiner’s view, the only possible remedy to ensure that the children are
provided with an opportunity to have a reasonably stable and normal upbringing.
This wi ll understandably be upsetting to the minor children and they will require
psychotherapy to assist them with the changes in primary care and schooling. The
only benefit for the children at present [is] that they are young and both present as
intelligent an d resilient and will, likely, thrive when given the psychological tools to
manage their feelings of loss and understand the importance of them being allowed
to be children and not little adults who are responsible for managing the conflict
between their pa rents.’11

[28] To ameliorate any hardships that the children will face during this transition,
Dr Le Roux suggests the appointment of a parenting co -ordinator . Dr Le Roux also
recommends limited contact between the children and the first respondent for the
first three months following this order to ensure that the children are not exposed to
further psychological harm and/or interrogation by the first responden t.

[29] Dr Le Roux concludes that th e importance of providing both children with a
structured, predictable, disciplined and loving home environment cannot be over -
emphasised and that the first respondent will have to undergo a period of
psychotherapy to equip her in understand ing the devasting impact of parental
alienation on the children.

10 In terms of s 18 of the Children’s Act.
11 My own emphasis.

Family Advocate’s report

[30] The Family Advocate’s report by Mr Mgobozi incorporates a social
investigation report by Ms Gans, a family counsellor and registered social worker.

[31] In the preparation of her report, M r Mgobozi and Ms Gans consulted with the
first respondent but were unable to assess the children due to the first respondent’s
non-cooperation in their efforts at arranging an assessment and a follow -up
consultation.12 A repeating theme by the first respondent. Despite being unable to
assess the children, Mr Mgobozi concludes that he is satisfied that child participation
was achieved in accordance with s 10 of the Children’s Act by Dr Le Roux in her
assessments and by adequately capturing their voices . He states ‘any further delays
in finalising the matter may negatively impac t on the children , as the assessment
denotes areas of concern which require the issue of care and contact to be resolved
as speedily as possible …Dr Le Roux makes findings of parental alienation which
require the court’s immediate intervention .’13

[32] Additionally , collateral sources were consulted, such as the children’s class
teachers, the school secretary and the principal. It was noted that there had been no
improvement in the relationship between the children and the applicant despite
positive sign s of development when contact was exercised in December 2023 and
that e fforts at contact in April and August 2024 were unsuccessful as the first
respondent could not be reached. Mr Mgobozi states ‘(W)hat is clear from the
reporting, however, is that the relationship between the applicant and the children
seems to improve during times of physical contact and sour when non -physical
contact is exercised . Ms Gans opines that this change speaks to the co nflicting
emotions that the children are experiencing which is indicat ive of them being
influenced by the personal views of the [first] respondent and according to Dr Le

12 The unsuccessful efforts at making contact with the first respondent are detailed in paragraph 2.5 of
the report by Ms Gans.
13 My own emphasis.
Roux is a cause for serious concern regarding the [first] respondent’s capacity to
[meet] the needs of the children.’14

[33] Mr M gobozi took note of the financial struggles experienced by the first
respondent , which according to her were due to the applicant’s failure to sufficiently
support the children but stated that the current environment was contrary to the need
for the children to be brought up in a stable environment which also takes into
account their physical, psychological and emotional well -being.

[34] Mr M gobozi assessed the likely effect of the change of circums tances on the
children ( s 7(1)(d)15 of the Children’s Act ) against the other factors contained in s
7(1) and emphasised that one should be careful not to place too much emphasis on
the children’s current emotional attachment with the first respondent, as doing so,
may be detrimental to their future wellbeing. He concludes that ‘ (W)hile it can be
expected in these circumstances that the ch ildren will want to remain with the [first]
respondent [with] whom they lived their entire life ; it is further a natural consequence
when children change primary residence to expect that some emotional challenges
may have to be endured by the children whil e undergoing the adjustment. However
as upper guardian, the court should intervene where the alternative far outweighs the
immediate harm the children may experience as a result of the change in primary
residency .’16

[35] In the result the Family Advocate recommends that primary residency be
awarded to the applicant in order to avoid the risk of further damage to the children’s
emotional well -being . The recommendation largely mirrors the interim order set out
in my opening paragraphs.17

Opposition by the first respondent

14 My own emphasis.
15 Section 7(1)(d) of the Children’s Act concerns the likely effect of the child of any change in the
circumstances, including the likely effect on the child of any separation from both or either of the
parents.
16 My own emphasis added.
17 Save for the identification by the applicant of the parenting co -ordinator (A ni Grobbelaar at par
2.2.2) and Elise Fourie as the suitably qualified professional to provide therapeutic support to the
children (at par 2.3).

[36] I turn to the first respondent’s opposition. In terms of the interim order t he first
respondent was directed to file her answering affidavit by 7 January 2025 , which she
duly did. At the time of filing her answering aff idavit, she did not have the benefit of
legal representation. Subsequent to instructing her attorney on 8 January 2025, a
supplementary answering affidavit was prepared on her behalf . On 13 January 2025,
this supplementary answering affidavit made its way to me. The admission of the
supplementary affidavit was opposed by applicant.

[37] According to the first respondent’s supplementary answering affidavit, she
consulted telephonically with her attorney Mr Lazarus on 8 January 2025. He called
for a financial instruction and required time to acquaint himself with the matter, which
has a lengthy history. His view was that her answering affidavit failed to address
material aspects , which aspects inform the best interests of the children. I agree with
Mr Lazarus , having regard to the principles of the interest s of justice and the best
interests of the children , that this supplementary affidavit should be allowed . For this
reason , and the extremely wide powers afforded to courts as the upper guardians in
establishing what is in the best interests of the children .18 In AD and DD v DW and
Others19 the Constitutional Court endorsed the view of the minority in the Supreme
Court of Appeal that the interests of the minors should not be ‘held to ransom for the
sake of legal niceties ’ and that the best interests principle ‘should not be
mechanically sacri ficed on the altar of jurisdictional formalism’. Accordingly, I allow
the admission of the first respondent’s supplementary answering affidavit.

[38] At the hearing of the matter , I was presented with a notice of motion in which
the first respondent sought a variety of relief, to wit, the introduction of her
supplementary answering affidavit (which is dealt with above ); dismissal of the
application and costs on an attorney and own client scale; that the Family Advocate
be directed to reopen its investigation and not to have any regard to the report of Dr

18 DM v CHP [2024] ZAGPPHC 76 (4 January 2024) par 42.
19 AD and DD v DW and Others (Centre for Child Law as amicus curiae : Department for Social
Development as Intervening party) 2008 (6) SA 33 (CC) par 10 and 30. See also Du Toit and Another
v Minister of Welfare and Population Development and Others (Lesbian and Gay Equality Project
as Amicus Curiae) 2003 (2) SA 198 (CC) par 3.
Le Roux; that the parties be ordered to co -operate with the Family Advocate in the
investigation ; that a clinical psychologist be appointed, if it is found to be necess ary
and that pen ding the outcome of the further recommendations that the children
reside with the first respondent.20

[39] Holistically viewed , the first respondent alleges that:

(a) The children have not been alienated from the applicant but have in fact
become estranged due to the applicant ’s failure to make any serious
attempts at exercising contact.

(b) The applicant’s failure to adequately provide financially for the children21
has caused the household to suffer. As the children are aware of the
financial struggles , this has caused them to feel abandoned and
neglected. The children have taken it upon the mselves to raise this issue
with their father.

(c) The findings of Dr Le Roux should be rejected . Her report evinces a lack
of due diligence due to inaccuracies22 and is incomplete as she did not
conduct a follow -up assessment with the children . Dr Le Roux failed to
act impartially , was biased and acted as an agent/representative of the
applicant.23

(d) In the result, t he Family Advocate’s report was (incorrectly) influenced by
the report of Dr Le Roux .

Analysis and discussion

20 Additio nally, relief was sought for maintenance and the referral of Dr Le Roux to the HPCSA. These
prayers were ultimately disavowed by the first respondent in argument before me.
21 She contends that he has failed to purchase clothing for the children and is in fact in contempt of
that order.
22 The first respondent takes issue with the following inaccuracies; namely that the applicant is a
business owner, whereas he is referred to as self -employed and that Zilwa AJ granted the order of 28
November 2023 when in f act it was granted by Eksteen J.
23 Reference is made to a remark by Dr Le Roux that the applicant was attractive, which conveyed her
bias.

[40] It is well accepted that in matters such as these, the enquiry turns on what is
in the best interest s of the children. This is not only encapsulated in s 9 of the
Children’s Act24 but also comprises a Constitutional imperative. In terms of s 28(2) of
the Constitution25 the best interests of the children standard is raised to a principle of
paramountcy.

[41] The answer to the question of what exactly is in a child’s best interests entails
a factual enquiry according to the circumstances and merits of each case. Section 7
of the Children’s Act gives content to th e best interests -standard. Section 10 of the
Children’s Act explicitly recognises the child’s inherent rights in any matter in which
that child is affected.

[42] The wide formulation of s 28(2) has been described as ‘ostensibly so all -
embracing that the interests of the child would override all other legitimate interests
of parents, siblings and third parties.’26 The plain meanin g of the words indicate that
the reach of s 28(2) extends beyond those mentioned in s 28(1 ) and the ‘best
interests principle has never been given exhaustive content, but it is necessary that
the standard should be flexible as individual circumstances will determine which
factors secure the best interests of a particular child.’27

[43] Prior to analysing the merits of the first respondent’s opposition , a few
opening remarks stand to be made. There is no dispute that Dr Le Roux is suitably
qualified to undertake the assessment and report to this court. She is a highly
qualified and respec ted clinical psychologist. The first respondent took no issue with
her appointment pursuant to the order of 12 December 2023.


24 Section 9 reads ‘In all matters concerning the care, protection and well -being of a child the standard
that the child’s best interest is of paramount importance, must be applied.’
25 The Constitution of the Republic of South Africa, 1996. Section 28(2) reads ‘ A child’s best interests
are of paramount importance in every matter concerning the child.’ See also P v P 2007 (5) SA 94
(SCA) par 13.
26 Jooste v Botha 2000 (2) SA 199 (T) .
27 Minister of Welfare and Population Development v Fitzpatrick and Others 2000 (3) SA 422 (CC) par
18.
[44] My impression of Dr Le Roux’s report is that it has been prepared in a careful
and considered manner. The report is comprehensive. Although there are minor
factual inaccuracies ,28 none of which indicate a lack of due diligence and in any
event , such inaccuracies played no role in her ultimate recommendations .

[45] Although Dr Le Roux wanted a follow -up consultation with the children, due to
the first respondent’s lack of co -operation this did not take place . Dr Le Roux was
able to meaningfully engage the children and gauge their views as mandated by s 10
of the Children’s Act. The children’s views are recorded.29 Dr Le Roux assess ed that
there was evidence of parental alienation and that the children were currently in
psychological crisis . Whilst a further consultation may have been preferable, the
current situation and the best interests of the children call for urgent intervention
without further delay . I am not persuaded that her investigations were incomplete.

[46] The first respondent al leges that Dr Le Roux is biased. Such allegations are
not taken lightly. The duties of an expert witness , which , derived from English law
have been adopted into our jurisprudence ,30 are adumbrated in National Justice
Compania Naviera SA v Prudential Assurance Co Ltd (“The Ikarian Reefer”).31
An expert’s evidence must be uninfluenced by the exigencies of litigation either in its
form or content. An expert must not assume the role of an advocate and must give
an unbiased opinion on matters falling within his/her expertise; he/she should state
the facts or assumptions upon which the opinion is based; he/she should not omit to
consider matter that would detract from the opinion; he/she should make it clear
when a particular question is outside of his/her expertise; if he /she has not fully
researched his/her opinion, it must be stated that the opinion is provisional; and if
something stated in his/her opinion requires clarification, this must be disclosed.32


28 See fn 22 supra.
29 These appear from paragraph 4.2 of her report.
30 See f or example PriceWaterhouseCoopers Inc and Others v National Potato Co -operative Ltd
[2015] ZASCA 2; [2015] 2 All SA 403 (SCA) par 98.
31 [1993] Lloyd’s Rep 68.
32 Ibid.
[47] In order to as sess the value of an expert’s opinion, it is necessary for the
expert to disclose the process of reasoning which led to the conclusion reached.33
An expert’s bald statement of opinion is of no assistance to a court.34 When experts’
opinions are in conflict, a court must determine to what extent their opinions are
founded on logical reasoning.35 This is so because an expert’s opinion must
represent their reasoned conclusion based on certain facts or data which are either
common cause or established by hi s/her own evidence or that of some other
competent witness.36

[48] The first respondent contends that Dr Le Roux is biased because she inter
alia states that she had no further communication with the first respondent after 10
August 2024 , whereas they in fact communicated after this date. In the words of Dr
Le Roux ‘numerous requests (email and telephonic) were sent for a follow -up consult
which [we re] ignored by the [first] respondent after the consult between the children
and their father on 10 August 2024.’ This statement conveys that the consultation
took place on 10 August 2024 , and that follow ing this event, her requests for a
follow -up were unsuccessful .37 Communication, to a limited extent, did continue38 but
it did not progress her request s to consult . The first respondent does not contend
that she facilitated a follow -up consultation . Elsewhere in Dr Le Roux’s report she
specifically records an exchange with the first respondent on 14 August 2024
regarding arrear school fees.39 If Dr Le Roux was indeed biased, one would no t have
expected her to mention this exchange. Additionally, Dr Le Roux talks to the financial
struggles of the first respondent, compounded by the applicant’s failure to
adequately support the children. This shows Dr Le Roux’s objectivity and impartiality ;
essential element s of an expert’s duty.40


33 Coopers (South Africa) (Pty) Ltd v Deutsche Gesellschaft für Schädlingsbekämpfung MBH 1976 (3)
SA 352 (A) at 371F -H.
34 Louwrens v Oldwage 2006 (2) SA 161 (SCA) par 27.
35 Ibid.
36 Roman’s Transport v Zihwele [2015] ZASCA 13 (SCA) par 9.
37 This trend was also experienced by the offices of the Family Advocate as well, who experienced
difficulties in arranging a meeting with the first respond ent.
38 Relevant to service of a maintenance subpoena and arrear school fees.
39 Page 24 of Dr Le Roux’s report (unnumbered paragraph).
40 Van Niekerk v Kruger and ot hers [2016] ZASCA 55 (SCA) par 16.
[49] My observations of Dr Le Roux’s report have , to some extent, been set out
above. My impression of her report is that i t has been prepared in a conscientious ,
fair and objective manner. She was aware of her mandate, and this is set out in her
introductory paragraphs. She would have no cause to unfairly favour one party over
the other or ac t as one’s agent or representative . But in any event, I do not find that
she has done so. I express my gratitude to Dr Le Roux. Her report has been of
appreciable help to the court . Accordingly, the criticism is found to hold no merit.

[50] What we are left with are several critical observations by Dr Le Roux , which
she arrives at by reason of her special knowledge and skill. None of her findings are
countered by expert opinion. These observations are:

(a) The f irst respondent presents as psychologically distressed with a lack of
insight into her own behaviour.41

(b) Evidence of parental alienation was foun d to be present.42

(c) As result of the 2021 Family Advocate’s report failing to sufficiently
address the problematic family dynamic, the first respondent’s personality
dynamics of viewing the children as proper ty and embroiling them in adult
conflicts has been entrenched . This has significantl y contributed to the
current situation where the children are psychologically in crisis.43

(d) The applicant has the parental capacity to act as the primary carer and
will be able to foster an on -going relationship with their mother.

(e) The children’s em otional and developmental needs will be better served
by primary residence with the applicant .


41 Elsewhere in the report Dr Le Roux states ‘(T)he [first] respondent further displays very limited
insight into the destructive impact of embroiling the children in adult concerns.’
42 This has been detailed above and will not be repeated.
43 According to Dr Le Roux the children are not coping with their current situation.
[51] Dr Le Roux has set out the process of her reasoning and her reasoned
conclusions are set out in her report. Her opinions are genuinely held by her and
based on logical reasoning . I accept her fi ndings.

[52] The alleged insufficient financial support by the applicant is a significant
catalyst for the disharmony between the parties. It is repeatedly raised by both the
first respondent and the children. Although I am not called upon to make any finding s
regarding the suffic iency of the contribution, it does permeate into the best interests
enquiry. I question why the first respondent took no active steps44 at seeking an
increase in maintenance , either informally or by way of legal proceedings. This of
course does not excuse the applicant from adequately support ing his children . He
has a duty to do so. A monthly contribution of R1 000.00 does , to my mind, seem
strikingly low . Having said that, what is clearly unacceptable is that the first
respondent continues to embroil these young children in a financial tug of war with
their father and discloses sensitive information to them which they lack the maturity
to process . There can be no question, such behaviour is not in the ir best interests.

[53] I am similarly disinclined to accept that the applicant has only become
estranged from his children due to a lack at effort on his part . Given the lengthy
litigation background,45 the historical landscape, and the modus operandi adopted by
the first respondent in failing to engage with both Dr Le Roux and the Family
Advocate ’s office , it is far more probable that she played an active role in frustrat ing
contact.

[54] It is also important to remind ourselves tha t in cases where a child’s welfare is
a stake, a court should be slow to determine the facts by way of the usual opposed
motion approach.46 The best interests of the child principle is a flexible standard and
should not be approached in a formalistic manner.47 These principles have guided
me in arriving at t he conclusions encapsulated in the preceding two paragraphs.

44 Prior to her efforts during her engagement with Dr Le Roux, who offered to pass on the
maintenance documents to the applicant.
45 As evidenced by the case number, proceed ings were first commenced by the applicant in 2020.
46 RC v HSC [2023] ZAGPJHC 219; 2023 (4) SA 231 (GP).
47 Ibid.

[55] I am of the view that the appointment of a parent ing co-ordinator to assist in
establishing calm and stability is appropriate . So too is the necessity for limiting the
first respondent’s con tact with her children , at least initially, to ensure that further
psychological harm is not caused. I agree that ther e is value in the provision of
therapeutic support to the children during the transition process , and to direct the first
respondent to engage a psychologist to develop her insights. To my mind these
additional safeguards will help ameliorat e any further harm to the children.

[56] Accordingly, and after carefully weighing the statutory and common
imperatives relevant to this matter and these against the facts in the papers and the
reports referred to above, I confirm the rule nisi granted on 17 December 2024,
which includes an order that the first respondent pay for the costs of the Part B
applicat ion. Awarding a cost order in matter such as these are not the norm. This is
based on the premise that the parents in their litigation endeavours are assumed to
be acting in the children’s best interests. Sadly, this has not been my impression of
the first respondent’s conduct in this matter . In the result, I depart from the ordinary
principle.

[57] Lastly, I find that no case has been made out for the first respondent’s
remaining relief set out in her notice of motion , and which, in any event do not serve
the children’s best interests . The relief sought in paragraphs 2 to 7 are dismissed.

[58] In conclusion I express my gratitude to the r epresentatives of the Family
Advocate’s office for the ir conscientious efforts in approaching this deeply emotional
matter. Additionally, the submissions made in argument before me by Mr Mgobozi
were persuasive and of significant value to the court .

The Order

In the result , I make t he following order:

1. Leave is granted to the first respondent to file her supplementary answering
affidavit.

2. The remaining relief sought by the first respondent in paragraphs 2 to 7 of
her notice of motion dated 12 January 2025 is dismissed.

3. The rule nisi granted by this Honourable Court on 17 December 2024 is
hereby confirmed.


________________________
T ROSSI
ACTING JUDGE OF THE HIGH COURT


Appearances:

For the applicant : Ms M Morgan
Counsel for the applicant
Instructed by:
IC Clark Inc .
25 St Luke’s Street Belgravia
East London
c/o Anthony -Gooden Inc.
9 Bird Street
Central
Gqeberha
Ref: Mrs J Anthony -Gooden

For the first respon dent: Mr J Lazarus
Attorney for the first respondent
Lazarus Joshua Attorneys
20 Wallace Street Unit 15 Silver Keys
Waverley
Pretoria

For the family advocate: Mr Mgobozi
Office of the Family Advocate, Gqeberha
1 Bird Street
Central
Gqeberha