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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NUMBER: 2025 -081159
Reportable: NO
Circulate to Judges: NO
Circulate to Magistrates: NO
Circulate to Regional Magistrates NO
In the matter between: -
A[...] S[...]
Applicant
and
R[...] J[...] -L[...] E[...]
Respondent
JUDGMENT
REID J
Introduction
[1] This matter is brought on an urgent basis in the Family Court . The applicant
and respondent are the biological father and mother of a 19 -month -old baby
girl (who will be referred to as “the minor child” or “M”) and have never been
married. The dispute relates to the primary care and residence of M and the
rights of access to M .
[2] The applicant ( father ) seeks an order that primary care and residence of M
should vest in him, and that the respondent (mother ) should be afforded
supervised visitation to M. The order sought reads as follows :
“1. That the Applicant's non -compliance with the rules and
directives of this Honourable Court regarding time limits and
service is condoned, and that the matter be heard as an urgent
matter in terms of the provisions of Rule 6(12) of the Uniform
Rules of Court.
2. That the Respondent is directed to return the minor child, M,
who was born on 10 October 2023 from the relationship of the
parties and having identity number 2[...] ("the minor child"), to
the Applicant's care, within 24 hours of the granting of this order.
3. That the minor child is placed in the Applicant's interim primary
care and residence, pending the finalisation of a forensic
assessment to be conducted by Claire O' Mahony, alternatively
by an expert to be nominated by the Chairperson of the Gauteng
Family Law Forum, and who will provide a report, including
written recommendations, in respect of the minor child's best
interests regarding primary residence, care and contact.
4. That the Applicant pays the costs of expert and the forensic
assessment to be conducted in terms of paragraph 3 above.
5. That the parties be ordered to fully and timeously co -operate
with the requirements of Claire O' Mahony, alternatively the
expert to be nominated by the Chairperson of the Gauteng
Family Law Forum, and the conduct of his/her forensic
assessment to be conducted in terms of paragraph 3 above.
6. The Office of the Family Advocate, Johannesburg be appointed
to conduct an investigation of the parties, as well as the minor
child, and to furnish a report with recommendations regarding
the best interests of the minor child, with specific reference to
the allocation of her primary residence, contact, care and
guardianship.
7. Pending the finalisation of the forensic assessment to be
conducted in paragraph 3 above and the issuing of the expert's
report, and pending the finalisation of the investigation by the
Family Advocate to be conducted in terms of paragraph 6 above
and the issuing of the Family Advocate's Report, that the
Respondent exercises the following rights of contact with the
minor child, subject to such contact being supervised by the
Respondent's sister, M[...] E[...] , or an alternate person agreed
upon by the parties:
7.1. Every Wednesday afternoon from 2:00 pm until 5:00 pm;
and
7.2. Every alternate Saturday or Sunday from 9:00 am until
5:00 pm. ”
[3] On 4 July 2024 an order was made in this Court under case number 2024 -
071796 by the hand of Strydom AJ (the July order) . The order reads as
follows :
“1. The minor child's principal place of residence shall be with the
Respondent at E […] Estates 1 […], Cnr C […] & C[…] Streets,
Akasia, Pretoria.
2. The Family Advocate of Johannesburg shall urgently investigate,
and report back to this Court, on the best interest of the minor
child, M, currently 8 months old, which investigation shall include
the issues of care and contact as well as the issue of primary
residency. The Family Advocat e of Johannesburg shall urgently
investigate, appoint an expert with the necessary experience to
assist the Office of me Family Advocate in this regard.
3. The Applicant (the biological father) shall have contact with the
minor child as follows:
3.1 He shall collect or arrange for the collection of the minor
child from the address set out in Clause 1 above on
Wednesdays at 06h30 and return her at 18h00;
3.2 He shall collect or see to the collection of the minor child
from the address set out in Clause 1 on Sundays at 07h00
and return her at 19h00.
4 The Respondent will provide weekly status updates to the
Applicant via email regarding the minor child's health,
development and any other related issues pertaining to her well -
being and best interests.
5 The Respondent will give regard to and respond within a
reasonable time to any reasonable enquiries by the Applicant into
the minor child's well being and best interests.
6 The Applicant shall, within three (3) days of date hereof deliver
the minor child's toys, clothes and similar items to the
Respondent. The Applicant shall be entitled to retain the minor
child's car seat, which is required to transport the minor child …”
[4] The order was not served on the Office of the Family Advocate Johannesburg
and consequently no investigation had been done.
[5] This order has not been varied, rescinded or set aside.
[6] After the July 2024 order was granted, the respondent primarily took care of M
until 1 October 2024 , when the respondent handed M over to the applicant for
primary care and residence . The applicant claims, and the respondent
denies, that they verbally amended the court order that the applicant will have
primary residence of M since 1 October 2024. The applicant , assisted by his
mother , has taken care of M from 1 October 2024 to 22 May 2025 and had de
facto primary care and residence of M.
[7] Adv Segal argues on behalf of the applicant that the action of the respondent
by handing the baby to her father, indicates that the July order was varied by
agreement between the parties. It is stated as follows in the applicant’s heads
of argument:
“The applicant exercised his contact rights in terms of the 4 July 2024
court order until 1 October 2024, whereafter the Respondent
consented to a de facto variation of the terms of this order. ”
[8] On 22 May 2025 the respondent changed her mind and decided to exercise
her rights in terms of the July 2024 court order and removed M from the
applicant ’s care. It is common cause that, a t that stage, M spent 163 nights of
the 202 nights from 1 October 2024 until 22 May 2025 in the applicant’s
primary care and residence . The respondent infrequently exercise d rights of
contact with M whilst M was with the applicant for a period of more than 7
months.
[9] The applicant brings this application on the basis that the respondent is an
alcoholic, is violent, has borderline personality disorder (called BPD, which is
a mental disorder) and that M’s safety is in danger whilst she is with the
respondent. The applicant claims that the respondent arrived under the
influence of alcohol at M’s christening and also refers other instances of
alcohol abuse as recorded by him.
[10] For the period that M was in his sole supervision, the applicant took notes of
the instances where he was assaulted by the respondent , where the
respondent was under the influence of alcohol and where M was found to be
neglected. The respondent at all times denie s that she is aggressive or was
drunk when receiving M. The notes taken by the applicant were done when M
was handed over to her mother for visitation. The applicant stated that e ach of
these incidents become violent , which has a traumatic effect on M.
[11] The applicant claims that the respondent scratched him and bit him in “a
drunken stupor”. He attaches photos of bite marks and scratch marks on his
body. The applicant states:
“When she (sic -the mother) is drunk, she is volatile, aggressive and
physically and verbally abusive towards me. This abusive conduct
often takes place in front of our daughter, causing her great distress. ”
[12] The respondent deni es the allegations of alcohol abuse, being violent, having
BPD and being volatile. She volunteers to go for mental evaluations and
alcohol testing. The applicant accepted the tender, and arrangements will be
made between the attorneys. Adv Segal placed it on record on behalf of the
applicant that the applicant tenders to be responsible for the costs of these
tests.
[13] The applicant opened a case of assault against the respondent on 10 May
2025 . This resulted in the respondent being incarnated from 13 May until 22
May 2025. During May 2025 the respondent opened a criminal case of rape
against the applicant. The injuries captured in the J88 reflects that the
respondent’s wrists were bruised, and both her knees had extensive bruising.
Both parties thus have pending criminal proceeding s against each other.
[14] The respondent approached the Children's Court on 29 May 2025 to appoint
a social worker to investigate the best interest of M . A Notice to Attend
Proceedings of the Children’s Court in terms of Section 57 of the Children’s
Act, 38 of 2005 has been issued on the applicant calling on the applicant to
appear before the Children’s Court at Pretoria North on 16 July 2025 at 08:30
(“the Children’s Court Order ”). These proceedings should proceed in addition
to the investigation of the Family Advocate.
[15] The court date in the Children’s Court is within a period of approximately one
(1) month.
Variation of a court order
[16] None of the parties deal with the High Court order dated 4 July 2024 or the
Children’s Court order dated 29 May 2025 . It is noteworthy that b oth these
orders place the primary care and residence of M at the respondent.
[17] It is trite law that an order of a court of justice stands, until it has been set
aside, varied or dismissed / changed on appeal. The High Court order dated 4
July 2024 and the Children’s Court order dated 29 May 2025 both stands in
law.
[18] The applicant essentially seeks to have the current orders varied to reflect the
de facto position of primary residence as it was from 1 October 2024 to 22
May 2025, thus placing primary residence of M with the applicant. The
applicant argues that the order was varied mutually on 1 October 2024 when
the respondent placed M in the care of the applicant.
[19] However, t he legal position is that parties cannot inter partes vary a court
order. A court order can only be varied by another court order , under the
following mechanisms: Uniform Rule 31, Rule 42 and the common law.
[20] In casu the variation of the court orders is sought under the common law
powers that this Court has on the basis that the High Court remain the upper
guardian of all minor children. Should the current order (s) not be in the best
interest of the minor child, this Court has the common law power to interfere
with the order by amending, varying or setting it aside. The Children’s Act
38 of 2002 also has the power, in terms of section 48 there -of, to vary or
amend a court order concerning a child.
[21] In Tom v Minister of Safety and Security [1998] 1 All SA 629 (E) it was
held that, i n an enquiry under the common law as to the existence of sufficient
cause for the variation of a judgment , the court must make a value judgment.
It was required to consider all the facts and circumstances to decide whether
an order should be rescinded as a matter of fairness and justice. It was held
that:
“Rule 42 (1)(a) created a specific procedural step which enables the
court, mero moto or upon application to rescind, or vary expeditiously
any order or judgment obviously granted erroneously in the absence of
the party affected thereby. By virtue of it's purpose such procedure was
confined to the contents of the court file and the proceedings in the trial
court which granted the order or judgment. ”
[22] In J v J 2008 (6) SA 30 (C) the full court of appeal held as follows:
“[20] As the upper guardian of minors, this court is empowered
and under a duty to consider and evaluate all relevant facts placed
before it with a view to deciding the issue which is of paramount
importance: the best interests of the child De Gree and Another v
Webb and Others (Centre for Child Law as Amicus Curiae) 2007
(5) SA 184 (SCA) para 32 at 200E . In Terblanche v Terblanche 1992
(1) SA 501 (W) at 504 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
recourse to any source of information, of whatever nature, which may
be able to assist it in resolving custody and related disputes.
In P and Another v P and Another 2002 (6) SA 105 (N) at 110C -D
Hurt J stated that the court does not look at sets of circumstances in
isolation:
‘I am bound, in considering what is in the best interests , to take
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. ’
In 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) (2008 (4) BCLR 359) para 30 at 370A , 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' De Gree and Another v Webb
and Others (Centre for Child Law as Amicus Curiae) 2007 (5) SA
184 (SCA) para 99 at 220I and held that in the case before it the best
interests of the child 'should not be mechanically sacrificed on the altar
of jurisdictional formalism'. 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) (2008 (4) BCLR 359)
para 30 at 370A. ”
(some footnotes omitted)
[23] I interpret the above to mean that M’s best interest should be the pivotal point
of this whole application. The fact that 2 court orders in 2 courts determined
the primary care and residence of M to be with the applicant, is a factor taken
into consideration, but not the determining factor that this Court is to be bound
by. In addition, this Court should not bind itself to the formalities of
variation/rescission/amendment of the existing court orders, but should remain
focused on the best interests of M. Substance should take place over form
and the interest of the minor child should never be compromised by the
legalities of the variation/rescission/amendment of a court order dealing with
M’s best interest.
[24] In the heads of argument filed on behalf of the respondent , the following is
argued :
“19. No allegations are made in the founding affidavit that the
Applicant fears for the safety and wellbeing of the minor child, as
such the best interest of the child is missing from the
application. ”
[25] I disagree that the absence of specific fears of the safety of M should be held
against the applicant . Allegations of alcoholism and a volatile or instable
personality would by implication affect the minor child’s wellbeing. However,
the veracity of the allegations cannot be tested in application proceedings,
especially where it is vehemently denied as in this case.
Discussion
[26] This Court is called upon to determine, on a value judgment, whether the 2
existing court orders should be varied to amend the primary care of M from
the respondent to the applicant.
[27] This is an extremely difficult, if not impossible , thing to do. As said by many
other judges, it would be akin to having a look in a crystal ball to see the
outcome retrospectively of what would have been in the best interest of the
minor child. Judges are neither fortune tellers nor lie -detectors, especially in
motion proceedings where evidence cannot be tested under cross -
examination.
[28] To protract these proceedings and issue an order in terms of Rule 6(5)(g) that
oral evidence should be led, would not be in the interest of the minor child due
to the urgency of this matter.
[29] What stands out to this Court is that the respondent voluntarily, and without
qualification, handed M to the applicant on 1 October 2024. Whatever her
reasoning for the decision was, it remains an objective fact that M was handed
over to the applicant ’s complete and primary care . This act indicates to me
that, for whatever reason, the respondent regarded the applicant as a safe
place to have M stay and be taken care of. I choose to believe that every
parent wants the best for their child and in that moment, I commend the
respondent for handing M to the applicant for primary care.
[30] It is furthermore significant to this Court that the respondent states that he is
assisted by his mother in taking care of M. This is also a factor I c onsidered in
determining which primary residence would be in the best interest of M. On
the other hand, the High Court order of 4 July 2024 specified the address
where the applicant was to reside and take care of M, which was where the
respondent resided with her sister. This creates the impression that,
irrespective of which party may have primary residence of M, they will need
assistance.
[31] Having regard to the fact that the respondent willingly handed M to the
applicant on 1 October 2024, and having regard thereto that the applicant
stays with his mother who assists him with taking care of M, I hold the view
that it would be in the best interests of M that the applicant receive primary
care and residence of M, pending the investigations of the Family Advocate
and other experts.
[32] The respondent seeks that the applicant exercises supervised contact with M
pending the inv estigations, and tenders supervised contact with M every
Wednesday (afternoon from 14h00 until 17h00) and every alternate Saturday
(from 9h00 until 17h00).
[33] I hold the view that supervised contact is not necessary at this stage. From
25 May 2025 the respondent had primary care of M in terms of the 2 court
orders which, by the very nature of it, the care of M occurred unsupervised . I
am satisfied that that measures of control can be put in place, as set out in
paragraph [34], to protect the best interests of M.
[34] Considering t he applicant’s tender of alcohol and mental tests, and the
respondent’s willingness to pay for such tests, I hold the view that the best
interest of M would be that she should have unsupervised and unrestricted
contact with M on the condition that the alcohol tests indicate a lack of
alcohol /substance abuse. Should the tests, at any time pending the
investigation, indicate alcohol /substance abuse, the contact with M should
take place under supervision.
[35] Despite the existence of the High Court order (4 July 2024) in terms of which
the respondent was granted interim primary care of M, M has primarily resided
with the applicant and his mother and has been in the applicant’s primary care
and primary residence for the majority of her life.
[36] For the above reasons, I find that it would be in the best interest of M that
primary care and residence rests with the applicant and that the respondent
has unsupervised rights of access to M.
Costs
[37] The general principle is that the successful party is entitled to his/her costs.
[38] In this matter there exists much speculation during the pending investigations
and ongoing supervision in the form of alcohol and mental testing.
[39] The results of the pending investigations and alcohol testing may convince the
court making the final determination, that a cost order would have been
warranted against a specific party.
[40] I therefore deem it in the interest of justice that the cost of this application be
reserved.
Order
As a result of the above, the following order is hereby made:
(i) The court order dated 4 July 2024 is amended to change primary care
and residence as well as contact, as stipulated herein.
(ii) The Office of the Family Advocate is to urgently investigate the primary
residence and primary care of M, as well as rights of access, would be
to the best interest of M. The Family Advocate should urgently issue a
report in this regard.
(iii) The Children’s Court proceedings and investigation is to continue 16
July 2025 at 08:30 in cooperation with the Office of the Family
Advocate.
(iv) The applicant (through his attorney) is to serve this order with the
request for investigation on the Office of the Family Advocate.
(v) Pending the outcome of the investigation by the Family Advocate and
other specialists as requested by the Family Advocate, primary care
and residence and rights of access to M is to be vested in the
applicant.
(vi) The applicant is to be assisted by his mother in exercising primary care
and residence of M.
(vii) Pending the outcome of the investigation by the Family Advocate and
other specialists as requested by the Family Advocate, t he respondent
is to have unsupervised contact with M every alternative weekend from
Friday 17h00 to Sunday 17h00.
(viii) The respondent is to collect M from the applicant’s residence and
deliver her at the applicant’s residence on the aforementioned days and
times.
(ix) The parties may, by agreement in writing, amend the times and place
as mentioned in (vi) and (vii) above.
(x) The respondent is ordered to submit herself to alcohol /subsance and/or
mental tests , as and when prescribed by the Office of the Family
Advocate, or a professional mandated by the Office of the Family
Advocate, and the access right accordingly be adjusted by the Office of
the Family Advocate depending on the results of the tests .
(xi) Costs of the application is reserved.
FMM REID
JUDGE OF THE HIGH COURT
NORTH GAUTENG DIVISION, JOHANNESBURG
DATE OF ARGUMENT: 10 JUNE 2025
DATE OF JUDGMENT: 20 JUNE 2025
APPEARANCES:
FOR APPLICANT:
COUNSEL: Adv L Segal SC
INSTRUCTED BY: Fairbridges Wertheim Becker
Email: andiswa.k@fwblaw.co.za
FOR RESPONDENT:
COUNSEL: Adv H van Staaden
INSTRUCTED BY: Engelbrecht Attorneys
law@en gelbrechtatlwa.co.za