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
GAUTENG DIVISION, JOHANNESBURG
CASE NO: 2025/047056
DATE: 27 May 2025
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED:
Date: 27 May 2025
In the matter between:
D[...] , M[…] A[…]
(Identity No. 8 […]) Applicant
and
G[…], R[…]
(Identity No. 9[…]) Respondent
Coram: M Van Nieuwenhuizen, AJ
Heard on: 20 May 2025
Delivered: 27 May 2025
JUDGMENT
M VAN NIEUWENHUIZEN, AJ :
[1] On or about the 6
th of May 2025 the applicant launched an urgent
Rule 43(6) application out of this Court pertaining to the parties’ 4 year old minor
2
daughter (referred to herein as “ E[...]” ). The applicant in essence seeks an order
varying an urgent Rule 43 Court Order of Van Deventer AJ dated the 17th of April
2025 ( “the Rule 43 order” ) on the basis that the Order is “patently unjust” . For his
contention in this regard the applicant relies on the Constitutional Court decision
in S v S and Another .1 The applicant argued that this was an exceptional case
where there is a need to remedy a patently unjust and erroneous order , whether
a change in circumstances exists or not.
[2] The existing Rule 43 order2 inter alia provides that:
[2.1] The applicant in the Rule 43 application (the respondent in this
application) and the respondent in the Rule 43 application (the applicant in
this application) shall exercise a shared residency arrangement, alternating every 2 (two) weeks;
[2.2] The two week period is to continue for a period of 4 ( four)
months;
[2.3] During the two week period, the non- resident parent is entitled to
reasonable telephonic contact on 1 (one) hour’s notice;
[2.4] E[...] shall not be subjected to any therapy or assessments or
expert intervention during the 4 (four) month transition period;
[2.5] At the conclusion of the 4 (four) month period the primary
residence of E[...] shall vest solely with the respondent (the mother) at her
appointed address and the applicant shall be entitled to contact inter alia
every alternative weekend from a Friday to a Sunday, mid- week contact
on a Tuesday and a Thursday from 14h00 until 17h00 as well as
telephonic and video contact at times mutually agreed upon between the
parties;
[2.6] After the 4 (four) month period, if necessary, the parties shall
take steps to refer the matter to the office of the Family Advocate or
expert mutually agreed upon and to be appointed by the parties to conduct the relevant assessment and therapy, which intervention may
only begin after the 4 (four) month interim period set out in Order 2;
1 2019 (6) SA 1 (CC)
2 Case lines, 022 -2 to 022 -9
3
[2.7] The applicant (the father) shall be solely liable for and pay the
costs of the experts and therapists appointed to conduct such
investigation and therapeutic interventions;
[2.8] This order is to operate as an interim order pending the
finalisation of all assessments to be conducted and pending the final determination of the residence of E[...] by the applicable Court of law;
[2.9] Each party shall pay his or her own costs .
[3] The respondent has taken various points in limine as set out
hereunder:
[3.1] The matter is not urgent;
[3.2] There has not been a “material change in circumstances” as
contemplated by Rule 43(6);
[3.3] This application is essentially “an appeal” disguised as a Rule
43(6) application;
[3.4] The “report” of educational psychologist Ms Van Jaarsveld is
inadmissible.
Urgency
[4] In respect of urgency, the respondent inter alia argued that:
[4.1] The current interim Court Order is applicable for a period of 4
(four) months with little under 90 (ninety) days remaining until therapy and assessments may commence;
[4.2] There is no imminent danger to E[...]. The respondent alleges
she is “happy” and “adjusting well” ;
[4.3] The applicant waited from 17 April until 6 May 2025 to launch
this application.
[5] I heard this application as one of urgency as it concerns the interests
of a minor child of tender age.
“Report” by Ms Van Jaarsveld
4
[6] At the outset the respondent wanted this Court to make a finding
regarding the admissibility of the “report” compiled by Ms Van Jaarsveld – even
prior to the arguing of urgency. I allowed the admission of the “report” tentatively,
but advised the parties that I would view the “report” with caution as Ms Van
Jaarsveld has not seen any of the parties or E[...] and no assessment of E[...]
had been conducted by Ms Van Jaarsveld.
No real Rule 43(6) application
[7] The respondent inter alia argued that there was no material change in
circumstances and that this point in limine goes hand -in-hand with the point in
limine raised by her that this application constitutes “an appeal” of the judgment
and order of Van Deventer AJ. When this point in limine was argued both parties
substantially ventured into the merits of the matter – the applicant’s counsel
contended that the arguing of this point is closely intertwined with the merits of the application.
APPLICABLE LEGAL PRINCIPLES
[8] The applicant has requested this Court to take a stance as envisaged
in S v S.
3 The Constitutional Court considered the available remedies as the
prohibition against appeal proceedings to Rule 43 or interim orders might serve to be prejudicial.
[9] In paragraph 34 the Constitutional Court held that:
“[34] In any event, should any rule 43 order be contrary to the best
interests of a child, this can be immediately rectified. The High Court regularly hears, on an urgent basis, applications where it is alleged that the best interests of the child are under threat. ”
4
3 Ibid
4 See NS v Presiding Officer of the Children’s Court [2018] ZAGPJHC 59; S v L , unreported
judgment of the High Court of South Africa, Gauteng Division, Pretoria, Case No 72839/2016 (30
September 2016) and Chief Family Advocate v G 2003 (2) SA 599 (W)
5
[10] In paragraph 58 the Constitutional Court held that:
“[58] There may be exceptional cases where there is a need to
remedy a patently unjust and erroneous order and no changed
circumstances exist, however expansively interpreted. In those instances, where strict adherence to the rules is at variance with the interests of justice, a court may exercise its inherent power in terms of section 173 of the Constitution to regulate its own process in the interests of justice. ”
5
[11] In Dodo v Dodo6 the Court, while acknowledging that Rule 43
applications were intended to afford the parties a quick, short and inexpensive
procedure, held that there was no reason why special circumstances should not justify a deviation from the norm where the complexities are unusual.
[12] In the matter of KKA v KNT
7 Bezuidenhout AJ also considered the
requirement of material change in circumstances in Rule 43(6) proceedings and
inter alia held:
“[85] What constitutes a material change in circumstances is not
defined by the rules nor by the various reported and unreported authorities that I have considered. And for good reason. It allows a court faced with such an application to apply the rule expansively and being mindful of the Constitutional dispensation of our country as a court is entitled to do and as was stated by the Constitutional Court in S v S
8:
“In addition, there is no reason why rule 43 should not be expansively
interpreted as some courts have already done [86] It is not surprising that the Constitutional Court expressed
the obiter view that Rule 43 may be wanting in certain respects and that
there may well be grounds for a review of rule 43(6) in the future to
5 Section 173 of the Constitution states:
“The Constitutional Court, the Supreme Court of Appeal and the High Court of South Africa
each has the inherent power to protect and regulate their own process, and to develop the
common law, taking into account the interests of justice.”
6 1990 (2) SA 77 (W) at 79D -E
7 2025 JDR 0581 (GJ)
8 Ibid at paragraph 56
6
include not only changed circumstances but also
“exceptional circumstances ”.9
[87] In Dodo v Dodo10 the court held that there was no reason why
special circumstances should not justify a deviation from the norm where
the complexities are unusual. I align myself with this decision as it
certainly cannot be argued with any conviction that the facts and issues before me are not extraordinary. ”
[13] I am mindful that as the upper guardian of minors, this Court, is
empowered and under a duty to consider and evaluate the relevant facts placed
before it with a view to deciding the issue which is of paramount importance: the
best interests of the child. When a Court sits as upper guardian in a custody
matter it has extremely wide powers in establishing what is in the best interests of minor or dependent children. It is not bound by procedural strictures or by the
limitations of the evidence presented or contentions advanced by the respective parties. Furthermore, the interests of minors should not be “held to ransom for
the sake of legal niceties” and the best interests of the child “should not be
mechanically sacrificed on an alter of jurisdictional formalism” .
11
[14] In Terblanche v Terblanche12 it was stated that when a Court sits as
upper guardian in a custody matter “… It has extremely wide powers in
establishing what is in the best interests of minor or dependent children. It is not
bound by procedural strictures or by the limitations of the evidence presented or
contentions advanced by the respective parties. It may in fact have resource to
any source of information, of whatever nature, which may be able to assist it in resolving custody and related disputes” .
[15] In P and Another v P and Another :
13
“I am bound in considering what is in the best interests of P, to take
9 Paragraph [53]
10 Ibid at 79B -D
11 J v J 2008 (6) SA 30 (C), paragraph [20] at 37D -38A, paraphrased
12 1992 (1) SA 501 (W) at 504C
13 2002 (6) SA 105 (N) at 110C -D
7
everything into account, which has happened in the past, even after the
close of pleadings and in fact right up to today. Furthermore, I am bound to take into account the possibility of what might happen in the future if I make any specific order.”
[16] In AD and DD v DW and Others (Centre for Child Law as Amicus
Curiae; Department for Social Development as Intervening Party
14 the
Constitutional Court endorsed the view of the minority in the Supreme Court of
Appeal that the interests of minors should not be “ held to ransom for the sake of
legal niceties” .15 And now that in the case before it the best interests of the child
“should not be mechanically sacrificed on the alter of jurisdictional formalism”16
THE APPLICANT’S CONTENTION WITH REGARDS TO A “PATENTLY
UNJUST AND ERRONEOUS ORDER”
[17] The applicant argued that the Court granted an order prohibiting
therapy and furthermore granted an order regarding primary residency without any expert involvement in a highly contentious matter.
[18] It was argued that section 28(1)(c) of the Constitution of the Republic
of South Africa
17 guarantees that every child has the right to basic nutrition,
shelter, basic healthcare services and social services. This must include
therapeutical intervention which is currently denied by virtue of the existing order.
[19] During the handing down of judgment it was indicated that:
“This Court also orders specifically that no assessment by any expert or therapy sessions may take place within the first 4 (four) months of this
14 2008 (3) SA 183 (CC) (2008 4 BCLR 359 paragraph 30 at 370A )
15 De Gree and Another v Webb and Others (Centre for Child Law as Amicus Curiae) 2007
(5) SA 184; SCA paragraph [99] at 2201
16 AD and DD v DW and Others (Centre for Child Law as Amicus Curiae, Department for
Social Development as Intervening Party) 2008 (3) SA 183 (CC) (2000 4 BCLR 359,
paragraph 30 at 370A)
17 Act 108 of 1996
8
order. It is in the minor child’s best interests that there is stability in her life
going forward, which she needs to learn to navigate for the rest of her life.
After the initial 4 (four) months, the necessary steps can be taken towards
therapy, assessments, schools, extramurals, and the office of the Family Advocate, whereafter this order can be amended.”
[20] Ms Ferreira argued that the reasons for the judgment do not expand
on the prohibition on therapeutic intervention, assessments and investigations ,
save to state that it was indicated that “This Court could not see how such interventions would in any way be conducted on equal footing if the minor has not had any chance to even, visit the applicant in a new environment where she now lives with her parents. The respondent does not want to take any
responsibility for his role, suitably qualified third parties, and therapists need to explain to his daughter what “separation” is and how it will work” .
[21] Ms Ferreira argued that it appears that the Court reasoned that the 4
year old minor child was required to learn to navigate the difficulties on her own as she will have to do “for the rest of her life” .
DELIBERATION
Whether therapy should be implemented without delay
[22] During the Rule 43 proceedings both parties were of the view that
E[...] suffered from anxiety, albeit for different reasons. The respondent (the
applicant in the Rule 43 proceedings) on more than one occasion stated that the applicant (the respondent in the Rule 43 proceedings) could obtain all the therapy sessions and expert assessments for E[...] that he wants as long as E[...]
is placed in the applicant’s primary residency pending such therapeutic
interventions/assessments.
[23] The Court confirmed that E[...] suffered “anxiousness” :
“[30] Lastly the Court considered, after the initial period, which had
to stop undue attachment to one parent only, and possible alienation, establish stability and ease the anxiousness of the minor child, more
9
reasonable contact with longevity in mind.”18
[24] Van Deventer AJ further stated that “The respondent in the answering
affidavit or in his submissions never took any responsibility on his part in his
daughter being traumatised and terrified” .19
[25] In these proceedings the applicant alleges that E[...] suffers from
anxiety having been removed from her stable environment and from him. This
has manifested in E[...] wetting her bed on the 4th of May 2025, being the first
night at home after E[...] had spent two weeks at the respondent’s home. This is
disputed by the respondent (mother).
[26] The respondent avers that the applicant is obsessively controlling and
this is unhealthy, unsafe and emotionally detrimental to E[...]. The applicant
argues that despite these allegations, which the applicant disputes, the
respondent now however during these proceedings opposes therapy.
[27] The respondent however states the following in her answering
affidavit:
“42.2 … If this Court is satisfied that the arrangement is
unsatisfactory and open to variation then I ask the Court to move the next
phase forward and order that E[...] move to live with me now and the order
that there is no therapy can then be relaxed.”
20
[28] The applicant argued that E[...]’s interests cannot be held “hostage”
until the respondent is vested with primary residency of her – this is exactly what
the respondent seeks.
[29] There has been a significant change in the life of E[...] who went from
living under one roof with both parents to splitting a month in half between two
parents and two different schooling arrangements. The applicant argued that it is
18 Paragraph [30], CaseLines, Judgment 023- 16
19 Paragraph [9], CaseLines, Judgment, page 20, 023 -16
20 Paragraph 42.2, Answering Affidavit, CaseLines , 026-26
10
unimaginable that the respondent can still allege that “a 4 year old toddler does
not need therapy because her parents are living separately. She can hardly
appreciate the distinction.”21
[30] On the papers before this Court there are conflicting versions as to
E[...]’s experience during the initial handover to the respondent and the implementation of the shared residency regime. The applicant reported that E[...]
was crying hysterically during handover. The applicant alleges that the video
footage ( Annexure “UA6” ) aligns with the applicant’s version. This is disputed by
the respondent. This Court does not know what transpires in between video
recordings and photographs that forms part of this application or what transpired
before and after the video recordings provided. This Court does not know the
attachment E[...] has with any of her parents. The respondent alleges that E[...]
is “happy and well -adjusted” in her care. This is disputed by the applicant.
[31] It is undesirable to unnecessarily interfere with a judgment of another
Court, however in circumstances like this where the interests of a child have to
be placed as paramount importance the Court may remedy such order.
[32] During the Rule 43 proceedings there was a clear indication and it
was common cause that E[...] was suffering from anxiety and it would be more
undesirable to leave such anxiety unattended. I am mindful of the confirmation
by the Court hearing the matter previously that E[...] is suffering from anxiety, a
condition which neither parent in the current circumstances and with the existing animosity are placed to attend to or to remedy . This Court as upper guardian of
all minor children has an unfettered discretion to make any order in relation to
the best interests of a minor child in its area of jurisdiction as this Court may deem meet. E[...] has a constitutional right to healthcare, which includes therapy.
In the absence of therapy E[...] is left to navigate an uncertain world fraught with
the animosity of a high conflict divorce of her parents unsupported and without any professional assistance. With the level of animosity between the parents
E[...] is at significant risk of becoming conflicted, something that she too would
21 Paragraph 104.3, CaseLines, 026 -60
11
have to navigate unassisted.
RESIDENCY AND EXPERT ASSESSMENT
[33] At this stage the Court is not going to interfere with the Court Order
currently in place in relation to the interim residency of E[...] and order s relating
to expert assessment (being prohibited for a period of four months after the
granting of the Rule 43 order). This Court is not placed in possession of sufficient
evidence as to determine what is in the best interests of E[...] pertaining to her
medium to long- term residency.
FAMILY ADVOCATE
[34] In the best interests of E[...] and so as to enable the future Court to
make an informed decision the matter is to be urgently referred to the Family
Advocate for investigation into what is in the best interests of E[...] .
The role and function of the Family Advocate
[35] In Soller NO v G and Another
22 Satchwell J gave some
consideration as to what the role and functions of the Family Advocate are.
“[21] The Mediation in Certain Divorce Matters Act 24 of 1987
provided for the appointment of persons in the public service at each division of the High Court to be styled “the Family Advocate”. The powers
and duties of the Family Advocate are set out in section 4 of the legislation and provide, inter alia that “The Family Advocate shall … after
an application has been lodged for the variation … of an order with regard
to the custody … or access to a child, made in terms of the Divorce Act, if
so requested by any party to such proceedings … institute an enquiry to enable him to furnish the Court … with a report and recommendations on any matter concerning the welfare of each minor or dependent child of the
marriage concerned or … regarding such matter as is referred to him by
22 2003 (5) SA 430 (W)
12
the Court.”
[36] The office of the Family Advocate was created in terms of the
appropriately named “Mediation in Certain Divorce Matters Act” . The title of this
legislation comprises within its use of the words “mediate” the concepts of
“negotiation” perhaps leading to “settlement” and in so doing acting as a sort of
go-between between the parties. If such attempts at mediation of disputes
through discussion and counselling are unsuccessful then the Family Advocate,
as required by legislation, reports to the Court on the facts which it will find to
exist and makes recommendations based on professional experience. In so
doing the Family Advocate acts as an advisor to the Court and perhaps as a mediator between the family who has been investigated and the Court.
23
“The Family Advocate is not appointed the representative of any party to a
dispute – neither the mother, father or any child. In a sense, the Family
Advocate is required to be neutral in approach in order that the wishes
and desires of disputing parties can be more closely examined and the true facts and circumstances ascertained” .
24
“The function of the Family Advocate has been described to be of
assistance to a Court by placing facts and considerations before the
Court. The Family Advocate should make a balanced recommendation
and should not take sides against one party in favour of the other.”25
[37] In Terblanche v Terblanche
26 the Court described the Family
Advocate as:
“… particularly well equipped to perform such functions and duties, having
at his or her disposal a whole battery of auxiliary services from all walks of
life, including family counsellors appointed in terms of the Act and who are
usually qualified social workers, clinical psychologists, psychiatrists,
educational authorities, ministers of religion and any number of other
23 Soller NO v G and Another supra at paragraph [22]
24 Soller NO v G and Another supra at paragraph [23]
25 Whitehead v Whitehead 1993 (3) SA 72 (SE) and Soller NO v G and Another supra at
paragraph [24]
26 1992 (1) SA 501 (W) at 503E -I
13
persons who may be cognisant of the physical and spiritual needs or
problems of the children and their parents or guardians, and who may be able to render assistance to the Family Advocate in weighing up and evaluating all relevant facts and circumstances pertaining to the welfare and interests of the children concerned.”
[38] The fact remains that the parties cannot agree on a medium to long -
term residency and contact regime in respect of E[...]. An objective investigation
and recommendation is therefore imperative in order to assist the Court ultimately in finding what arrangements would serve E[...]’s best interests. The
Family Advocate has been established by virtue of legislation. Both parties have
agreed to the appointment of the Family Advocate during the Rule 43 proceedings. I am accordingly inclined to grant the applicant the relief that he
seeks for the immediate referral of the matter to the Family Advocate.
ORDER
[1] A therapist/play therapist shall be appointed by the parties for E[...] to
assist and guide E[...] during this transition phase and to address her
alleged anxiety , and if necessary, to equip E[...] with the necessary tools
to assist her in coping with the effects of her parents’ pending divorce.
Such appointment shall be done immediately.
[2] The costs of the therapist shall be paid by the applicant.
[3] Should the parties be unable to agree on a therapist within 2 (two)
days after the granting of this order , they shall immediately approach the
Chairperson of the Gauteng Family Law Forum , with or without their legal
representatives, for urgent nomination of a suitable therapist.
[4] The matter shall immediately be referred to the offices of the Family
Advocate by the parties to investigate what would be in E[...]’s best
interests pertaining to inter alia her care, residency and contact
arrangements. The referral shall incorporate a full copy of the initial Rule
43 application and a full copy of the papers in this application. Copies of
both applications shall be made available to the offices of the Family
Advocate within 5 (five) days of the granting of this order.
14
[5] The Family Advocate is reques ted to convene an inquiry and to
provide a report to the parties and the Court as a matter of urgency.
[6] The costs of the application shall be costs in the divorce action.
Delivered: This judgment was prepared and authored by the Judges whose
names are reflected and is handed down electronically by circulation to the
Parties/their legal representatives by email and by uploading it to the electronic file of this matter on CaseLines. The date for hand- down is deemed to be on 27
May 2025.
HEARD ON: 20 May 2025
DATE OF JUDGMENT: 27 May 2025
FOR APPLICANT : Advocate R Ferreira
INSTRUCTED BY:
Farouk Attorneys
E-mail: muhamm ad@farouk.co.za
Tel: 061 588 3522
FOR RESPONDENT :
Advocate Z Khan
INSTRUCTED BY:
Farhana Ismail Attorneys
E-mail: farhana@ismailatt.co.za
Tel: 082 677 2041