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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
(WESTERN CAPE DIVISION, CAPE TOWN)
Case No: 9895/25
In the matter between
Y[...] S[...] APPLICANT
AND
S[...] S[...] B[...] S[...] RESPONDENT
Date of Hearing: 07 March 2025
Date of Judgment: 18 March 2025 (to be delivered via email to the respective counsel)
_____________________________________________________________________
JUDGMENT
______________________________________________________________________
THULARE J
[1] This is an opposed urgent application wherein the applicant sought the appointment
of an educational and child psychologist to conduct a care and assessment related to
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the parties’ parental responsibilities and rights at the applicant’s costs with the
respondent to co -operate, as regards thei r minor child. The applicant also sought terms
to regulate supervised contact with the child pending the assessment report . The
applicant sought the respondent to pay the cost of the application on a scale as
between attorney and own client.
[2] The parti es were married to each other. The child, who was now 13 years old, was
born during the marriage. The parties were now divorced. At the time of the divorce the
parties agreed to terms and conditions of a consent paper and parenting plan, which
regulated th e care and contact with the child. It provided for the respondent to be the
primary caregiver and the applicant’s contact with the child. The parties had difficulties
with co -parenting. At one stage the applicant sought to have the primary residence of
the child changed to him and this was opposed. The primary residence of the child was
never changed, but only the terms of contact. At one of the days that the applicant was
to pick up the child, the child refused to go and claimed that the applicant was phys ically
violent with the child, made threats and abused the child verbally and emotionally . The
respondent assisted the child to lay a criminal charge against the applicant, which case
is still pending. The applicant denied the allegations and accused the m other of using
the child as a stratagem to restrict and frustrate his contact rights. The child’s views
were to remain with the respondent as the primary caregiver, and to visit the father. After
the allegations of physical violence and abuse, the minor ch ild did not want to visit the
father at all, but was prepared to consider supervised visits until the child was sure that
there was no risk of abuse.
[3] The applicant approached the Children’s Court to enforce his contact rights. The
Children’s Court’s order provided telephonic contact and limited his contact to
supervised contact to Sundays for 3 hours during the day. The Children’s Court ordered
an investigation by a clinical psychologist to investigate the applicant’s claims of
parental alienation, a nd to conduct integrated sessions between the applicant and the
child and to investigate the issues around the applicant’s contact. The child, out of own
volition, refused to see the applicant . The respondent requested the child to speak to
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the father and tell the father directly. The respondent took the child to the father for this
purpose. It was on this day that a person found at the applicant’s place had a
confrontation with the respondent as she did not want the respondent in the house. This
happened in front of the child and since then the child refused to have any contact with
the applicant. The respondent was subsequently arrested for the alleged assault on the
child. The chil d was selected to play in a national tournament. The child was obviously
proud and excited about this success. The applicant wrote to the school, denying
consent for the child to take part in the tournament. There was a need for professional
intervention t o advise the applicant that this type of behaviour caused the minor child to
become increasingly resistant to form a relationship with him. The respondent
intervened and the child’s participation in the tournament was confirmed. The minor
child also became aware that the applicant had applied for a reduction in his
contribution for the maintenance of the child. The clinical psychologist reported that it
was both parents who made the child explicitly aware of the adult politics as well as the
legalities invo lved in the matter. The minor child resented the applicant for the possibility
that the child might have to go to a new school, make new friends and start all over
again, with new teachers, as the mother could not afford the current school on her own.
[4] The child refused to see the applicant since October 2024. The respondent
encouraged contact, but it was the child who refused to have contact with the father.
The refusal to have contact was given by the child to the prosecutor in the criminal
case, t he magistrate presiding in the Children’s Courts, the child’s legal representative
appointed by Legal Aid South Africa (LASA) , the school counsellor and the psychologist
appointed by the applicant . The child is in High School and was hostile to further
assessments. The respondent held the view that the psychologist only dealt with
alleged parental alienation, facilitating integrated sessions between him and the child
and the supervised contact. He now required a proper, in -depth, independent care and
conta ct assessment in the child’s best interests. He was unhappy with the progress
made by the clinical psychologist appointed at his instance. The applicant believed that
the change in the minor child’s behaviour towards him was influenced by the
respondent.
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[5] The relationship between the parents was correctly described by the clinical
psychologist as acrimonious and seriously adversarial. The clinical psychologist was
appointed to introduce a reintegration therapy initiative which was intended to help
facilitate the reunification of the child and the applicant. The clinical psychologist has
also correctly characterized this matter as a complex one. This is not an ordinary ‘he
said, she said’ dynamic which often characterizes contact disputes. It is made more
complex by the refusal of the child to see its father and the pending criminal assault
charges against the father made by the child. Although the clinical psychologist had
gone so far as to get the father and child to a point where a small increment in ti me
spent together could be considered, he favoured gradual, phased -in contact
arrangements as the child found itself within what he called a toxic adult politics which
created a messy and unacceptable adversarial climate. The clinical psychologist
identifi ed a need for the applicant to temper his attitude as regards his rights as well as
his perceived sense of entitlement. There was a need for the applicant to find out how
his son really perceived him and how the son experienced him as a father on an
emotio nal level. On the other hand, the clinical psychologist identified undue
overprotection of the son by the mother and the danger of inadvertently creating in the
son an erroneous belief that his voice was the only one that needed to be heard. There
was a da nger that the child was beginning to call the shots whilst, as a child, ignorant of
the bigger picture. The child had confirmed to the clinical psychologist that he had made
conflicting statements regarding his choice of primary caregivership, willingness to
phone his father and supervised contact. The child explained the contradictions as due
to feeling pressurized and intimidated by his father particularly when alone with him.
The child was scared of confrontation, was eager to please and not to disappoin t his
father and he said some things purely to avoid conflict. The child expressed a
preference to stay with the mother as the primary caregiver, and comfortable with
telephonic contacts on Wednesday afternoon and physical contact every alternate
Sunday un der supervision. The clinical psychologist did not find any evidence of
parental alienation. There was a need to continue with father and son mediation and
implementation of various reintegration therapy initiatives. The clinical psychologist,
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having learn ed of the urgent application, expressed the view that duplication of his
existing involvement was not only ill -conceived but was contra indicated and
counterproductive especially for the child. Simply put, it was unnecessary and runs the
risk of paradoxical ly promoting further estrangement of the father and son. The
reintegration therapy was necessary for the father and son to continue. Its fruitfulness
and productive progress had been spoiled by the applicant’s attempt to sabotage the
son’s attendance of a national school soccer tournament. The reintegration needed to
be a well -indicated gradual and phased -in contact approach. The applicant’s sense of
entitlement, impatience and generally impetuous demeanour at continuously pushing
and trying to accelerate c ontact was not helpful to the process. The clinical psychologist
received a report from the respondent that the public prosecutor had considered
recommending that no contact whatsoever take place between the applicant as an
accused and the child as a state witness, unless certain provisos were met by the
applicant. The clinical psychologist could not in clear conscience procced with the
scheduled reintegration therapy session for 7 November 2024 and placed his
therapeutic role on hold until clarity was provided. A letter from the respondent’s
attorneys to the applicant advised him that contact could not continue due to the
criminal charge s against him. It seems that the Children’s Court position was that there
should be an outcome on the criminal matter before any further interventions could
continue. This was communicated to the clinical psychologist by the child’s legal
representative ap pointed by the LASA.
[6] The child had met a counselling psychologist before the clinical psychologist was
involved. The child attended the session of their own free will and spoke freely. The
child showed no signs of anxiousness or any indication that he felt coerced. The results
were that the child had no indication of depression. The clinical overview was that the
child showed no signs that he was being coerced. The child stated that it did not want to
have visits with his father at that moment, due to incidents that had occurred in 2023.
The child indicated that he would feel comfortable with supervised visits until he could
be sure that similar incidents would not occur. The child was comfortable with the
mother in their home. The child was described a s a well -mannered, engaging and
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insightful young man. The counselling psychologist’s recommendation was that the
child’s wishes on parental visitation, although she saw him when he was 12, should be
respected. The previous month the child had seen a school counsellor. Of relevance
was that he had told the counsellor that he did not mind living with either parent. He had
shown no reason to continue to see the counsellor. Two days after the report, the
counsellor had written to both parents. In that email, th e counsellor advised the parents
that the child had expressed a preference to stay with the mother, and that he had not
reported this earlier as he did not want to hurt his father’s feelings, and that the child
had given his consent for her to inform the p arents.
[7] It was against this background that the applicant approached the High Court with an
urgent application. On the date of set down the child’s legal representative had not yet
filed her submission and the matter was postponed to the date where I was seized with
the matter. The child’s voice as advanced by the legal representative was that the child
refused to go to the applicant because every time the child struggled with his school
work, the applicant hit him. The child referred to two incident s in June and August 2023
where the applicant punched the child on his chest. The applicant had hit the child
several times before and the child had lost count of how many times it happened.
During these period the child was scare to go to the applicant bu t was also scared to
speak out. The child had been hit on his arms and chest to the extent that he had blue
marks. The abuse intensified when the child told the applicant that he wanted to stay
with his mother. The child indicated that when he said he want ed to stay with his father,
he was too scared to say what he really wanted. The child wished to reside with the
mother and to go to the same school. The child said he wanted supervised contact,
which was suggested to him by his mother. The child indicated that the applicant told
the child that he was slow to do things, he was dumb and swore at him. The child was
not ready to see the father and needed some time, about a month, to think about it. The
child preferred a social worker to supervise the visits. This was because the earlier
supervised visits were supervised by Aunt Tasnem and Uncle Razaad but the applicant
was rude to him, sometimes ignored him and argued with him when he arrived late for
the contact. The child did not enjoy the supervised contact. The child preferred
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supervised contacts to remain until the reintegration therapy was completed. The child
expressed anger at his father for the physical abuse, and preferred telephonic contact
for now. The child feared that since the court proceedings, th e applicant might swear at
him or tell him he did something wrong. The child was open to counselling, so that he
could amongst others tell his father how he felt. The child told his legal representative
that he only spoke out when the respondent indicated to him that he had to go to
Durban with his father. He was scared to go to Durban with his father and to be alone
with his father. The child indicated that although his paternal grandmother was in
Durban, his paternal grandmother was also scared of the app licant.
[8] The child explained that the nature of the assaults also included hitting him on his
shoulder, on his face and swearing at him. He had bruises on his chest and once he
had a bruised lip which he had to die from his mother. He did not tell his mother before
because he knew he still had to go to his father again and this might cause trouble. His
father once smacked him against his ear which left his ear red and his father told him to
tell his mother that he was hit by a soccer ball. The abuse inc luded punching, slapping
with opne hand and back of hand through his face, kicking him and pushing him off
chairs and kicking him whilst lying on the floor. During 2023 he was in a bad space, felt
depressed and did not want to live anymore. He felt he coul d not tell anyone about the
abuse. The child however spoke to his friend who motivated him to live. The child asked
this not be told to anyone. The legal representative explained that she had to disclose it
to adults who would help and protect him and he c onsented that this e disclosed. His
father always appeared angry and anything could set him off. That was why the child
tried to do everything right. According to the child, the father was like that even with his
own parents. The child indicated that his m other disclosed to him that she was also
physically abused. He had no independent recollection as they divorced when he was
two years old. The child enjoyed cricket and he feared not being able to play cricket on
Saturdays and Sundays as his father would n ot allow it when it was on his contact
weekend. The child indicated that if he wanted to see his father he would call him but he
did not want to see him on forced terms. The child did not feel safe to be with his father
now that the criminal case was runni ng, because the father would be angry at him.
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[9] The parents have been involved in seven court cases and during all these cases the
child has been at the centre of the litigation. The respondent also referred to the child
being made aware of the father’ s intention to have his maintenance payments reduced.
During this application the respondent’s attorney advised the child’s legal representative
that the child was anxious about this application. It could only be the mother who told
the child as she was th e only one with contact. The disclosure of the litigation was
disheartening and inappropriate. On the other hand, it was the applicant who expressed
reservations to the children’s court, about the clinical psychologist’s recommendations
with reintegration therapy which included supervised contact, whilst the criminal case
was pending. It was the applicant who informed the children’s court that he was advised
by the police to not have contact with the child, which caused the children’s court to
postpone the matter to obtain the outcome of the criminal matter and only then to
determine how the reintegration therapy should proceed with the applicant and the
child. The commitment of both parents to comply with the recommendations of the
clinical psychologist wer e curtailed by the pending criminal case. It was the legal
representative’s view that it was justifiable for the child to be scared and anxious about
the pending criminal case as a complainant and witness. The parents needed proper
intervention and guidanc e to see the light for they had been at each other’s throats for
many years. The tension between them was such that the child could not even confide
in any of them that he was in a depressive state and considered self -harm at some
stage. The child had inst ead confided in another child who was his friend. In other
words, the self -centre d parents left the child emotionally and psychologically unattended
so much so that it became the responsibility of another child in the child’s safe who
saved his life. They were too consumed by their egos, pride and the “I will show
him/her” syndrome to even see the pain and suffering o f the child they lived with. The
child’s legal representative recommended that the matter be postponed sine die, until
such time when the criminal proceedings were disposed of and that when the criminal
case was finalized, the parties jointly appoint a parenting co -ordinator.
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[10] In Z D E v C E1 it was said:
“[16] This Court in P v P2 stated that the determination of the best interests of
the child, ‘in any particular case involves the [h]igh [c]ourt making a value
judgment, based on its findings of fact, in the exercise of its inherent jurisdiction
as the upper guardian of minor children’.3 In this regard the court is not looking
for a perfect parent but to find “the least detrimental available alte rnative for
safeguarding the child’s growth and development.”4
[17] Our Constitution echoes the importance of the concept of the best
interests of the child. Section 28(2) of the Constitution provides that the child’s
best interests are of paramou nt importance in every matter concerning the child.
The principle of the best interests of the child has also been incorporated in s 9 of
the Children’s Act 38 of 2005.
[18] 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 .”
[11] The main issue, even before the children’s court, was the reluctance of the child to
exercise contact with the appli cant. The process of integration went well until the
applicant attempted to cancel the child’s trip to a national soccer tournament in Durban.
The applicant appears to have treated the child poorly during the contact sessions. The
criminal allegations then emerged. It was the applicant who raised concerns about
reintegration when it was considered in the children’s court and has now turned around
and approach ed the High Court with this application. The approach of the Children’s
Court was also not very helpful. It is common knowledge that criminal trials in the
magistrates’ courts take very long to finalise, for a variety of reasons, the main being , it
not being a continuous roll and accused persons having to come generally three times
or more even after pleading before the matter is final ised. It t akes longer to plead and if
1 (1011/2022) [2024] ZASCA 159 (18 November 2024) para 16 to 18.
2 P v P [2007] ZASCA 47 ; [2007] 3 All SA 9 (SCA); SCA 2007 (5) 94 (SCA).
3 P v P para 14.
4 P v P para 24
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convicted sometimes even takes months for sentencing. The effect of the Children’s
Court approach meant that the applicant may have to sit out the whole of 2025 and
maybe even the better half of 2026 before the question of his c ontact with the child was
investigated by the children’s court. It is even possible that the child would reach 18
before this question was put to rest. The approach of the Children’s Court did not give
me the appetite to consider remitting the matter back.
[12] I am not persuaded that the process which the clinical psychologist had
commenced needed to start afresh, be duplicated or strengthened with anot her
equivalent investigation. In my view, he must be given the space and co -operation of the
parties to fully investigate, work on the therapy and rebuild the relationship between the
child and its father. The reintegration therapy initiative that the clin ical psychologist was
involved in, was meant to facilitate reunification between the applicant and the child.
The attempt by the applicant to suggest that it was something separate from contact
with the child is simply semantics. In co -operating with the t herapist, it is necessary for
the respondent to realise that her sharing of ‘parental politics” with the child must have
its own limits. She was adult enough to unsaddle the horse of spite and discern when
she was sharing too much information necessary for the growth and development of the
child, especially as regards the child’s relationship with the father. Toxic parental politics
was a no -go area for her in her discussion with the child. She must refrain from using
the child as a tool in her battles with the applicant. Equally, in co -operating with the
clinical psychologist, it was necessary for the applicant to look into the mirror, and
realise that some of his own thought processes , esp ecially his subjectively perceived
sense of entitlement, was discernible on his own child . The attitude of his son
resembled and corresponded with his own, as regards the visits. He wanted them and
his son was against it. The only difference is that they were pitted at the different ends
of the tug -of-war. Instead of being the father, the applicant has reduced himself to an
equa l of his own son and was competing against hi s own son. This application, instead
of confronting the devil that the clinical psychologist has illuminated for him , is but an
example of the length to which the applicant would stretch in the contest for stren gth
and dominance . To avoid being seen making his own son an adversary, he blamed the
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respondent for the son’s own decisions. The applicant must strive to understand how his
own son perceived him and then strive to work on the emotional levels where he and his
son experience each other. Blaming the respondent for his own shortcomings was not
helpful. The applicant’s impatience with a gradual and phased -in approach does not
make the clinical psychologist wrong or biased. An urgent applica tion should never be
confused for an instrument towards an impetuous decision.
[13] For these reasons I make the following order:
(a) The matter is treated as one of urgency.
(b) The application to appoint Ms Leigh Pettigrew , an educational and
child psychologist, under the circumstances, is dismissed. The appointment at
the applicant’s instance , of the clinical psychologist currently working on the
matter , to continue at applicant’s cost , is confirmed.
(c) The clinical psychologist shall continue to conduct integrated sessions
between the applicant and the child, which shall include joint father and son
mediation sessions and the implementation of various reintergration therapy
initiatives, individual consultations with the parents and the child as the need
arose as well as any other intervention that the clinical psychologist may deem
necessary . All the expenses shall remain at applicant’s cost .
(d) The Socia l Worker from the Department of Social Development ,
Western Cape, appointed and or designated for the precinct where the applicant
resided, or that Social Worker’s designate , shall supervise the contact between
the applicant and the child for as long as th e criminal court has not passed
judgment on the merits or the matter between the applicant and his son was in
any other way disposed on the merits , and the clinical psychologist deemed it no
longer necessary. During the supervised contacts, the applicant shall not directly,
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indirectly or through another discuss the merits of the criminal case or in any way
whatsoever make any reference thereto, with the child.
(e) The applicant shall have supervised contact wi th the child on Sunday
30 March 2025 and thereafter on every alternate Sunday between 10H00 and
17H00. The clinical psychologist shall review the supervised contact
arrangements every quarter and shall adjust them as the exigencies needed or
work on them i ncrementally as the situation demanded. The clinical psychologist
shall prepare the child and the parents for the whole intervention journey.
(f) No costs order is made .
__________________________
DM T HULARE
JUDGE OF THE HIGH COURT