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IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
Case Number: 034132/2022
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES/ NO
(3) REVISED: YES / NO
DATE : 16/5/25
SIGNATURE
In the matter between:
Y[...] T[...] B[...] Applicant
ID NO: 8[...]
and
J[...] F[...] B[...] Respondent
ID NO: 8[...]
___
JUDGMENT
______________________________________________________________
VAN NIEKER K N, AJ:
Section 28 of the Children’s Act , 38 of 2005 – Termination of Guardianship.
Introduction:
[1] The applicant served a notice of motion , dated 11 March 2025 , on the
respondent via the sheriff , on 29 March 2025 , for an order in the
following terms:
1.1 That the respondent’s guardianship in terms of s ection 18(2)(c) of
the Children’s Act, 38 of 2005 be terminated, together with his
rights as contained in s ection 18(3)(c) of the Act.
1.2 Costs of the application to be paid by the respondent, if opposed.
1.3 Further and/or alternative relief.
[2] No notice to oppose was served by the respondent .
[3] This application ca me before me, in the family court , as an unopposed
application on Tuesday, the 13th of May 2025.
Facts :
[4] Applicant and respondent were married to each other on the 15th of
March 2014.
[5] From the marriage one minor daughter was born, namely B , on the 28th
of June 2018.
[6] The applicant and the respondent separated during February 2019 and
again on 4 November 2020. The Applicant was at all relevant times, the
primary caregiver of B.
[7] The applicant and the respondent were divorced by an order of court on
the 11th of November 2021 , and a settlement agreement was made an
order of court.
[8] The applicant alleges that she has struggled to obtain the cooperation of
the respondent in respect of various issues concerning B. She proceeds
to provide examples.
[9] In August 2021 , she requested the respondent’s co oporation to apply for
a passport for B. The respondent undertook to sign the passport
documents provided to him and sen d it to the applicant via whatsapp.
From the documents before court , it is not clear whether or not this was
done or whether or not it would have been sufficient to apply for a
passport.
[10] The next request for the respondent to cooperate in respect of B’s
passport was on the 14th of July 2022 , when the applicant secured an
appointment at home affairs, Nelspruit, where the respondent resided .
The respondent was going to attend the appointment , but t he applicant
cancelled the appointment due to unrest in Nelspruit.
[11] On the 10th of October 2022 , the applicant contacted the respondent to
arrange an appointment for B’s passport in Pretoria. The respondent
reverted that he needed to shuffle his calendar in order to attend such an
appointment. At that stage the respondent was residing in Nelspruit.
[12] On the 3rd of November 2022 , the applicant’s attorney of record sent a
letter of demand to the respondent indicating that he had to confirm his
attendance at the department of home affairs, Akasia, Pretoria on either
the 11th, 14th or 18th of November 2022. No response from the
respondent was received.
[13] On the 25th of November 2022 , the applicant indicated to the respondent
that she will have to open a Nedbank account in order to make an
appointment at the home affairs at a Nedbank branch in Nelspruit.
[14] On the 28th of December 2022 at 16h44 , the applicant informed the
respondent of the appointment at Nedbank, Nelspruit Crossing for the
following day at 09h00. At 01h30 on the 29th of December 2022 , the
respondent informed the applicant that he would not be able to attend
the appointment that morning because he was not in Nelspruit.
[15] On the 17th of July 2023 , the applicant again requested the respondent
to sign the application forms for B’s passport and the passport
application was finalised on the 8th of August 2023.
[16] According to the applicant , it took her two years to convince the
respondent to cooperate in this regard.
[17] The next example the applicant provides is that during March 202 2, she
deemed it necessary for B to attend play therapy , and the respondent
had to co -sign the permission forms. She requested him on the 3rd of
March 2022 to sign the permission form , and he signed the forms on the
11th of March 2022, 8 days after being requested to do so.
[18] The last example provided , is that the applicant requested the
respondent on the 20th of July 2023 to sign a consent form for a forensic
evaluation for B, which request he ignored. No further information is
provided.
[19] After the reference to the forensic evaluation , as mentioned above, the
applicant’s affidavit abruptly ends.
Consideration of the facts:
[20] The last example provided by the applicant of any non -cooperation by
the respondent in respect of his guardianship , is her request on the 20th
of July 2023 for the forensic evaluation of B.
[21] Notwithstanding not providing any further examples to the court , the
applicant proceeded to launch this application in March 2025 , without
explaining the delay of 20 months.
[22] The founding affidavit does not contain a single allegation , why it is now
suddenly necessary to terminate the respondent’s guardianship in
respect of the minor child B , when on her own version , there were no
examples of any non -cooperation by the respondent for a period of
twenty months , prior to launching the application.
[23] Furthermore, what is glaringly absent from the affidavit of the applicant is
any allegation that the relief sought by the applicant is in the best
interests of B and/or why it would be in the best interests of B to
terminate the Respondent’s guardianship .
[24] It needs to be mentioned that in my view, even if the examples
mentioned by the applicant were more recent, they would not entitle the
applicant to the relief sought.
[25] In respect of the applicant’s example pertaining to the respondent’s non-
cooperation to apply for a passport for B , it is evident that the distance
between Pretoria and Nelspruit provided a logistical problem in the
expedient conclusion of the request.
[26] Upon her second request to the respondent to cooperate , arrangements
were made , and an appointment was made at the Nelspruit home affairs
office in respect of which appointment the respondent cooperated . It was
the applicant who cancelled this appointment , on the day of the
appointment .
[27] Thereafter , when the applicant informed the respondent that she will be
making an appointment at Akasia Home Affairs, to apply for B’s
passport, the respondent indicated that toe enable him to travel to
Pretoria for such an appointment , he will have to make arrangements at
work . This response by the respondent, in my view, does not show any
unreasonableness or uncooperativeness .
[28] The last appointment prior to obtaining the passport was made at a
Nedbank branch in Nelspruit. The appointment was for the 29th of
December 2022 at 09h00 and the respondent was informed of this
appointment on the previous day at 16h4 4. This notification was in my
view, not reasonable noti ce of the appointment which was to take place
during the festive season. T he fact that the respondent indicated that he
was not in Nelspruit at the time cannot be considered unreasonable
and/or uncooperative.
[29] The next example of the respondent ’s alleged uncooperativeness is in
respect of the applicant’s request that the respondent sign the admission
forms for B’s play therapy. In my view, this is also not an example of
unreasonable and/or uncooperative conduct by the respondent , because
on the applicant’s own version the respondent signed the necessary
documents , 8 days after receiving the request.
[30] In respect of the example of the forensic assessment no information is
given by the applicant to this court why a forensic assessment would
have been necessary and why it was even requested from the
respondent. It seems that in th is regard the Applicant made one request
and never again brought up the subject of a forensic assessment. The
respondent’s conduct in this instance cannot be accepted as being
uncooperative and/or unreasonable.
Legal principles:
[31] Section 28 of the Children’s Act, 38 of 2005 provides that:
’28 Termination , extension , suspension or restriction of parental
responsibilities and ri ghts:
(1) A person referred to in sub -section (3) may apply to the high court ,
a divorce court in a divorce matter , or a children’s court for an order
–
(a) Suspending for a period or terminating any or all of the
parental responsibilities and rights which a specific person
has in respect of a child or
(b) Extending or circumscribing the exercise by that person of
any or all of the parental responsibilities and rights that person
has in respect of a child.
(2) An application in terms of sub -section (1) may be combined with an
application in terms of section 23 for the assignment of contact and
care in respect of the applicant in terms of that section.
(3) An application for an order referred to in sub -section (1) may be
brought –
(a) by a co -holder of parental responsibilities and rights in respect
of the child ;
(b) by any other person having the sufficient interest in the care
protection well -being or development of the child ;
(c) by the child acting with leave of the court ;
(d) in the child’s interests by any other person acting with leave of
the court;
(e) by a family advocate or the representative of any interest
organ of state.
(4) When considering such application the court must take into
account -
(a) the best interests of the child;
(b) the relationship between the child and the person whose
parental responsibilities and rights are being challenged;
(c) the degree of commitment that the person has shown towards
the child; and
(d) any other factor that should in the opinion of the court be
taken into account.’
[32] As stipulated above the applicant did not provide any grounds why the
order sought will be in the best interests of the minor child and such a
finding cannot be made by this court .
[33] The examples provided by the applicant is historic in nature and cannot
be the only substantiation for such far-reaching relief .
[34] Even if these examples took place more recently, they do not show
uncooperativeness and/or unreasonableness on the part of the
Respondent, warranting the termination of his guardianship over his
daughter.
[35] In the premises the applicant did not make out a case for the relief
sought and the following order was made in open court on Tuesday, the
13th of May 2025:
35.1 The application is dismissed.
Judge VAN NIEKERK N, A J
In The High Court of South Africa
Gauteng Division, Pretoria
Date of hearing: Tuesday, 13 May 2025
Order granted: Tuesday, 13 May 2025
Date of delivery of reasons : Friday , 16 May 2025
Appearance
Instructing Attorneys for the Applicant appearing on behalf of the Applicant :
Suze Buitendag Attorneys
Attorneys for Plaintiff
Cell: 084 476 0930 / 072 256 3695
E-mail: suze@sbpinc.co.za
Instructing Attorneys for the Respondent: No appearance for Respondent .