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compliance with the law and SAFLII Policy





IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)

Case No: 24999/25

In the matter between

A[...] V[...] S[...] APPLICANT

AND

H[...] W[...] V[...] S[...] RESPONDENT

Date of Hearing: 03 March 2025
Date of Judgment: 17 March 2025 (to be delivered via email to the respective
counsel)
_____________________ ________________________________________________ _
JUDGMENT
______________________________________________________________________

THULARE J

[1] This is an opposed urgent application for a rule nisi for the respondent to show
cause why the court should not make an order giving the applicant primary care of the
parties ’ minor child pending the return date and an investigation by a private social
worker , subject to some terms regulating the respondent’s rights to reasonable contact
with the minor child and for the rule nisi to operate as an interim order with immediate
effect and the respondent being ordered to pay the costs in the event of opposition. The
rule nisi was granted. The court, however, ordered an investigation by the Family
Advocate and not by a private social worker.

[2] The parties are the biological parents of the min or child who was 21 months old. The
parties met at a rehabilitation centre in 2015 whilst both independently underwent
treatment for drug abuse. They married in 2018. They were now estranged and viewed
their marriage as having irretrievably broken down . The respondent holds the view that
whilst he is fully recovered from drug abuse, the applicant was not. The child ordinarily
lived with the mother. Both parties resided and were employed within the City of Cape
Town. The respondent’s mother resided in Bredas dorp. On 24 January 2025 the
applicant was involved in a motor vehicle accident. Without any basis, the respondent
alleged that this happened whilst she was under the influence of substances. On that
day after the collision, the applicant voluntarily book ed herself into a psychiatric hospital
for observation. During her hospitalization, she agreed for the minor child to be taken
care of by its paternal grandmother in Bredasdorp. From the papers, It seems to me that
the respondent confused the psychiatric h elp which the applicant sought, for drug abuse
help. The respondent on his own took a decision that the applicant was not able to look
after the child and that she shall not have unsupervised contact with the child until his
own conditions were met. He did not return the child to the applicant upon her
discharge. Instead, he retained the child in Bredasdorp with his mother, and the
applicant could only see the child if she met his conditions.

[3] The applicant had a traumatic, painful and scary caesarean and after birth
complications, at and after the birth of the child . This resulted in her having mood,
anxiety, trauma and depression. Amongst the medicine prescribed were Lexamil, Alzam
and Tremadol. The applicant suffered Post Traumatic Stress Disorder an d Port -Partum
depression. This explained why she needed assistance from both a psychologist and a
psychiatrist. The applicant’s case, which the respondent denied, was that the
respondent preferred prayers and church counselling by people with no qualificat ions
for counselling, and not professional and expert intervention. The respondent’s case
was that he recommended that the applicant see a church counsellor because of his
strong faith. According to the applicant, the respondent told her that the only medi cation
she needed was the gospel. The respondent admitted that the applicant had told him
that she needed to see a professional for her anxiety, which persisted. The applicant
saw a psychiatrist and a psychologist in August 2024. She was diagnosed with a
General Anxiety Disorder with a depressed mood which was linked to the trauma
related to the minor child’s birth experience.

[4] The respondent controlled every major aspect of the applicant’s life. For instance,
although her salary was paid into her own p ersonal account, the respondent held the
bank card and internet banking code. She rarely had access to her own money. She
could not make any decision on what to spend with her own salary In the unlikely event
that the respondent would allow her to buy brea d and milk for the house, she had to
present him with a slip as he insisted to see whether she did not purchase anything he
did not consent to her buying. She also had to hand back the bank card to the
respondent after such purchases. The respondent did no t deny the control. According to
him, he had to exercise control over the applicant as a result of her substance and
prescription medication abuse. The respondent did not deny the economic control.
According to him he controlled her economically because sh e was bad with her
finances. This is the man who was himself sequestrated. It was the man who could not
take out credit in his own name. The respondent had insisted that the applicant took
credit in her own name for his and their purchases and did not pay the debts with the
result that the applicant went into debt review. The minor child became sick whilst being
breast -fed. Whilst medical professionals confirmed that the medication that the applicant
was taking had no effect, the respondent blamed the appli cant for her prescribed
medication as the reason the child was sick.

[5] In my view, the respondent contributed to the emotional and psychological
challenges which the applicant suffered, from which he now sought to gain an
advantage. About 7 days before the applicant booked herself for psychiatric help, that is
on 17 January 2024, without any discussions the respondent simply told the applicant
that he had taken the child to his mother and that the child will be in Bredasdorp until
the applicant got her emotions and well -being in order. The applicant in quoting the
respondent verbatim partly, said the respondent used the terms: “ to get my shit
together”. According to the applicant he asked the respondent that they go for
counselling. The respondent declin ed, claiming that there was nothing wrong with him
and that the applicant was the problem and the reason their marriage was taking strain.
Although the respondent’s case was that this was by agreement, this is not persuasive.
In his answer to the 17 Januar y discussion, among other things, he indicated that he
had to go to work on 20 January 2025 and could not supervise the applicant with the
minor child, which supervision according to him was extremely necessary. His case was
that he was still afraid that i f the applicant was left alone with the child, she may be
under the influence of substance, pain medication or alcohol. The respondent took the
child to Bredasdorp without the consent of the applicant.

[6] The respondent’s case was based on speculative opinions which were irrelevant. He
relied on his own conclusions with no evidential basis to conclude that the applicant was
under the influence of alcohol or drugs when she was involved in the collision. He was
not on the sc ene and did not observe what happened. Similarly, he has his own
reconstruction of an incident where the applicant injured her wrist in the bathroom. His
own opinion was that the applicant was suicidal and had attempted to kill herself that
day. Similarly, he was not present and did not observe anything and his conclusions are
without any evidential support and founded by a fertile, highly creative, self -assured,
creative and biased mindset. Whilst the evidence showed that the applicant struggled
with anxie ty, depression and stress disorders, her marriage to the respondent seems to
me to be a contributory factor, and not the child. In other words, on a simple scale, the
respondent is one of her primary problems, and not the child. There was no iota of
object ive evidence that the applicant had ever threatened the life of the child, or that she
was a risk to the child, outside the irrelevant speculative opinions of the respondent.
The respondent’s s uppositions and conjec ture on alleged medical and dr ug abuse we re
simply not sufficient to meet the case that the applicant placed before the court.

[7] The rule nisi is explained in Member of the Executive Council for the Department of
Health. Eastern Cape v M [213/2021] [2022] ZASCA 140 (24 October 2022) at para 1 2
to 14. At para 14 it was said:

“[14] Since those observations were made, the practice relating to rules nisi has
been used in various contexts. The essential character and purpose of the
procedure, however, remains to ensure that (a) notice is given to a n affected
party; (b) a prima facie case is made out for the relief sought, and (c) such relief
may be granted unless cause is shown why it should not be granted.”

The respondent w as a man who through his controlling behaviour meant that the
applicant was denied enjoying her salary and choose her own colour, time and shop to
buy her own lingerie unless the respondent agreed , which are deep and personal
choices . The controlling behaviour meant as a new mother she was denied the
memorable excursion, with her newborn, to walk around a shopping mall to choose and
buy food and clothing for her infant , and she did not have the painful pleasure of
choosing and shopping for groceries for her own household. The irony does not
illuminate for the respondent when he took refuge in the gospel and claimed a God -
fearing Christlike life in court papers. Unless the court intervened the controlling
behaviour of the respondent meant that there was a real risk that the respondent would
deny the applicant the opportunity and pleasure of raising her own child. It was one
thing to control her access to the child who was moved to another town without her
consent. It was another thing to move the child from that known address to elsewhere
and then refuse to disclose the whereabouts of the child to its mother. It was cruelty. No
one who cared would deny a caring mother to know where her 21-month -old child was
and expect ed the mother to have a peaceful sleep and good days and restfu l nights.
The respondent did not care about the welfare of the applicant and was reckless about
her emotional and psychological health. The respondent was a law unto himself. The
cruelty was not innocent. It was calculated to drive the applicant up the psy chiatric and
psychological hill, for her struggles to get at the top to be used against her in the care of
the child.

[8] I was persuaded that there was sufficient justification in the evidence placed before
the court to grant the rule nisi. The applicant sought interim relief to adequately protect
her interests . The applicant’s parental rights were infringed, and it was clear that she
would suffer a disadvantage if the court did not intervene.1 The rule is flexible and can
act as an interim order.2 The applicant would not gain any advantage on the return date
which she would not otherwise have had.3 It seemed to me that the applicant might be a
victim of domestic abuse who developed panic symp toms when traumatic experiences
of her marriage were triggered. It also appeared to me that the applicant may have been
exposed to severe and ongoing threats to her integrity and now her care and contact
with the child were being not only threatened but al so infringed by the respondent’s
extra -judicial orders and conditions.

[9] For these reasons the rule nisi granted and the respondent was ordered to pay the
costs.


___________________________
DM THULARE
JUDGE OF THE HIGH COURT



1 Safcor Forwarding (Pty) Ltd v NTC 1982 (3) SA 654 AD at 674H -675A.
2 National Director of Public Prosecutions v Mohamed NO 2003 (4) SA 1 CC at para 29.
3 Du Randt v Du Randt 1992 (3) SA 281 SA ECD at 289D -E.