2
motions .1 The matter concerns the interest of OR, an 8-year girl child born
from the relationship between the applicant , her father , and the respondent ,
her mother . The applicant’s application to vary the primary residence of OR
from being with the respondent to that of shared residency was dismissed with
costs on an attorney and client scale .2
[2] The parties were before this court during 2019 under a different case number
for relief regarding inter alia confirming the applicant as a co-holder of parental
rights and responsibilities in accordance with section 21 of the Children’s
Act,3 residency and the extension of the applicant’s contact.4 The order
granted by agreement before Tuchten J during September 2019 also provided
that if the parties are unable to agree regarding the further extension of the
applicant’s contact to OR, that the parties reserved the right to approach the
court on the same papers as supplemented and after the Office of the Family
Advocate has provided their final report.
[3] When the applicant again approached this court under case number
021334/202 4 during February 2024 t he dispute re volved around the extension
of the applicant’s contact as recommend ed by a mutually appointed expert,
the social worker Mrs Irma Schutte . Mrs Schutte recommended shared
residency to be phased in such a manner that from January 2025 OR resides
on a weekly basis equally with both her parents.
[4] It is common cause that OR has been primarily resident with the respondent
since the parties’ separation during 2018 and that there is high levels of
conflict between the parties and differing parenting styles . The respondent did
not agree with Mrs Schutte’s findings and recommendation and informed the
applicant of her reasons prior to the launching of the application.
1 The order was granted on 13 January 2025 prior to the commencement of the 2025 school year and the
judgment and the reasons for the order was delivered on 24 February 2025
2 To be taxed on scale B
3 38 of 2005. Section 21 deals with the parental responsibilities and rights of unmarried fathers
4 46957/ 2019
3
[5] The applicant approached th is court on motion proceedings seek ing that Mrs
Schutte’s recommend ation be made an order of court and that the respondent
pay the costs in the event of opposition. Despite referring in detail to the 2019
proceedings in his founding affidavit, the applicant failed to explain why the
present application was launched under a different case number or why he did
not comply with the September 2019 order by approaching the Office of the
Family Advocate for a final report.
[6] On 12 September 2024 the matter was postponed to 7 November 2024. T his
court requested the Family Advocate to investigate and report on the best
interest of OR and to consider any new circumstances of each party including
the report of Mrs Schutte in respect of shared residency. The parties were
further provided with the opportunity to file supplementary affidavits and
supplemen t their Heads of Argument before the hearing of the matter.
[7] The Family Advocate’s November 2024 report took issue with Mrs Schutte’s
findings and recommendations . The Family Advocate referred the court to
relevant literature and research on the role of expert s, concerns regarding
shared residency in high conflict relationships and that quality parenting and
close meaningful relationships are unrelated to the amount of time the non -
residential parent and the child spen d together.
[8] The Family Advocate’s report was filed shortly before the hearing of the matter.
After hearing the parties and the Family Advocate, judgment was reserved .
The parties were afforded the opportunity to file supplementary heads of
argument to further address the Family Advocate’s report and
recommendation.
[9] The application for leave to appeal dated 17 March 2025 sets out three main
grounds upon which leave is sought . Firstly, that the court a quo descended
into the arena and disregard of the audi alterem principle . Secondly that the
court a quo placed undue reliance on the Family Advocate’s report and
recommendations and thirdly that in exercising its judicial discretion properly ,
the court would not have granted a punitive costs order .
4
THE COURT DESCENDING INTO THE ARENA
[10] Although the applicant acknowledges the wide powers and the duty of the
court sitting as upper guardian as enunciated in numerous judgments ,5 it is
argued that this court did not apply the principle of audi alterem partem
causing the process followed to be unfair.
[11] The applicant argues that the court a quo descended in to the arena by
“contacting ” the Family Advocate to comment on Mrs Schutte’s report , and to
investigate and provide a recommendation . A further ground for leave to
appeal is that a presiding judge in an adversarial system is required to be
impartial and that in arriving at its decision must be called upon by counsel ,
rather than the court’s own volition, what evidence ought to be considered.
[12] The applicant further argues that the court called upon the Family Advocate to
investigate and report on the recommendations of Mrs Schutte and “called
upon the family advocate and lead oral evidence without affording any of the
parties an opportunity to put questions to the family advocate ”.6 Mrs Schutte
should have been called by the court to give oral evidence as the respondent,
the Family Advocate and the court criticised Mrs Schutte’s report.
[13] The SCA in B v S remarked that litigation involving the interest of minor
children is not of the ordinary civil kind.7 The authorities are clear that in
matters concerning minor children the court’s approach is not adversarial but
inquisitorial.8 This kind of litigation involves a judicial investigation in which
the court can call evidence mero mot u and the court’s primary focus is on the
minor child and not on the parties.9 As upper guardian the court is actively
involved and may have recourse to any source of information of whatever
5 J v J 2008 (6) SA 30 (C) , 2002 (6) SA 105 (N) at 110C - D; AD and DD v W and Others (Centre for Child Law as
amicus curiae; Department of Social Development as intervening party 2008 (3) SA 183 (CC) paragraph [30] at
370A; AD & DD v DDW and Others 2008 (3) SA 183 (CC) at paragraph [30] at 370A; ZDE v DE [2024] JDR 4976
(SCA); Shawzin v Laufer 1968 (4) SA 657 (A) at 662E – 663B
6 Applicant’s heads of argument, para 18 filed at 27 -31
7 1995 (3) SA 571 (A) at 585 E
8 B v S supra ; T v M 19 97 (1) SA 54 (A) at 57 H -58 A
9 Terblanche v Terblanche 1992 (1) SA 501 (W) at 504 C -D; B v S supra ; T v M supra
5
nature to properly determine the best interest of the minor child and is not
bound by the evidence presented or contentions advanced by the parties.10
[14] In T v M the SCA remarked that the sole criterion is always the best interest
of the child concerne d, that there is no onus as such on either party and
concluded that “..a Court should be slow to determine facts by way of the usual
approach adopted in opposed motions and explained in Plascon -Evans Paints Ltd v
Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 584H -585E.” 11
[15] According to the applicant to ensure a fair hearing, especially in
circumstances where conflicting expert reports have been provided, the court
a quo ought to have either referred the matter to oral evidence or at the very
least called Mrs Schutte to give evidence and afforded both parties an
opportunity to question these two experts.
[16] In support of the argument that it is not uncommon for a court sitting as upper
guardian to refer a matter brought on motion proceedings to oral evidence the
applicant relies on ZDE.12 However the ZDE matter is procedurally and
factually distinguishable from the present matter. ZDE was a divorce action
and not motion proceedings. The matter came before the court a quo as an
unopposed divorce and the provisions of section 6(1) an (3) of the Divorce
Act was applicable.13 The defendant appeared at the hearing and alleged that
10 Terblanche supra
11 1997 (1) SA 54 (A) at 57H - 58A
12 ZDE v CE [2024] JDR 4 976 (SCA)
13 70 of 1979 Sections 6(1)(a) and (3) provides as follows:
“6(1) A decree of divorce shall not be granted until the court —
(a) is satisfied that the provisions made or contemplated with regard to the welfare of any minor or
dependent child of the marriage are satisfactory or are the best that can be effected in the
circumstances;
and………………………………………………………………………………………………………………………………………………..
(3) A court granting a decree of divorce may, in regard to the maintenance of a dependent child of the
marriage or the custody or guardianship of, or access to, a minor child of the marriage, make any
order which it may deem fit, and may in particular, if in its opinion it would be in the interests of
such minor child to do so, grant to either parent the sole guardianship (which shall include the
power to consent to the marriage of the child) or the sole custody of the minor, and the court may
order that, on the predecease of the parent to whom the sole guardianship of the minor is granted,
a person other than the surviving parent shall be the guardian of the minor, either jointly with or
to the exclusion of the surviving parent. “
6
she signed the settlement agreement under duress as the plaintiff informed
her that she will then be able to have contact with the minor child born from
the marriage.
[17] In the present matter the applicant elected to proceed with motion proceedings
with the knowledge that the respondent does not agree with Mrs Schutte’s
findings , report , and recommendations. The applicant even went so far as to
request Mrs Schutte to respond to the respondent’s criticism against her report
as contained in the answering affidavit , and Mrs Schutte’s response was
attached to the replying affidavit.
[18] None of the parties exercised his /her right to request for a refer ral to oral
evidence. This issue was not raised in the further supplementary affidavit that
was filed nor in the further heads of argument filed after the argument on 7
November 2024.
[19] The respondent simply did not agree with the findings, report and
recommendations of M rs Schutte and the court itself raised certain issues with
regards to whether Mrs Schutte’s report meets the requirements of what is
expected of an expert’s report. This in my view did not warrant a mero mo tu
referral to oral evidence.
[20] When an expert makes recommendations without providing the proper factual
and scientific basis for such investigation and the recommendations flowing
from such recommendations, the expert fails in his/her duty towards the
court .14 It is the expert’s obligation to ensure that the findings and
recommendations are based on sound, logical and scientifically based
reasoning.15
[21] The court owes no duty to an expert or any of the parties in motion
proceedings to allow for further reports and/or evidence for purposes of
rectifying of or address ing deficiencies in an expert report filed. The focus of
14 Schneider N.O and Others v AA and Another 2010 (5) SA 203 (WCC) at 211J – 212B
15 Southwood’s Essential Judicial Reasoning in Practice and Procedure and the Assessment of Evidence (Lexis
Nexis) at 7 - 8
7
the court is on the interests of the minor child and not the interests of the expert
to further justify his/her findings .
[22] The applicant relied almost solely on the report and recommendation of Mrs
Schutte and knew that his case would stand and fall by the content of such
report. An applicant in motion proceedings cannot bargain on a matter being
referred to oral evidence. The same principle applies to the expert providing
a report , which should contain sufficient information to substantiate the
expert’s findings and/or recommendations.
[23] If in applications involving minor children where there is disagreement
amongst the experts and/or the Family Advocate about what is in the best
interests of such child(ren) a court is expected to mero motu call for oral
evidence , such proceedings would almost without exception result in “mini
trials ”. In my view this is a dangerous expectation to create with litigants and
experts alike and has the potential to open the doors to abuse of proceedings.
[24] Such an approach is further not conducive to the judicial investigation into the
best interest of minor children and contrary to the provisions of section s 6(4)
and 7(1)(n) of the Children’s Act . These sections of the Act provide that in
matters concerning the interests of minor children a delay in any action or a
decision to be taken must be avoided as far as possible .
[25] Accordingly, in my view there were not sufficient grounds for referral to oral
evidence.
[26] Consequently, the grounds for leave to appeal advanced by the applicant
under this heading are not supported by the applicable authorities , legislatio n,
the orders granted on 12 September and 7 November 2024 , the arguments
raised before the court a quo , and the heads of argument filed.
8
THE AUDI PRINCIPLE
[27] As referred to above, after the first hearing before me on 12 September 2024
the matter was postponed specifically to provide the parties an opportunity to
supplement their papers as well as their Heads of Argument and for the Family
Advocate to investigate and report to the court. Following the hearing on 7
November 2024 the parties were given a further opportunity to file
supplementary Heads of Argument specifically to address the Family
Advocate’s report and recommendation .
[28] The parties were therefor e given more opportunity than parties in motion
proceedings are normally given to ensure that their respective versions and
arguments are properly before court. I therefore do not agree with the
applicant’s contention that that the court a quo disregarded the audi principle.
UNDUE RELIANCE PLACED ON THE REPORT AND RECOMMENDATION
FROM THE OFFICE OF THE FAMILY ADVOCATE
[29] The applicant argues that the court a quo ought to have called M rs Schutte to
give evidence and to explain those aspects the court grappled with such as
her methodology and her ultimate findings instead of rejecting them out of
hand and by accepting the recommendation of the Office of the Family
Advocate. I have already dealt with these arguments hereinabove .
[30] The role and obligations of an expert and that of the Office of the Family
Advoca te are distinguishable. The Family Advocate fulfills its responsibilities
towards litigants, minor children and the court in terms of the Mediation in
Certain Divorce Matters Act .16 Section 4 of the Act deals with the powers
and duties of the Family Advocate and provides in subsection (3) as follows:
“(3) Any Family Advocate may, if he deems it in the interest of any
minor or dependent child of a marriage concerned, and shall,
if so requested by a court, appear at the trial of any divorce
action or the hearing of any application referred to in
16 24 of 1987
9
subsections (1)(b) and (2)(b) and may adduce any available
evidence relevant to the action of application and cross -
examine witnesses giving evidence thereat.”17
[31] The important role of the Family Advocate has been dealt with in numerous
judgments including that the Family Advocate is required to be of assistance
to the court.18 As remarked in Terblanche v Terblanche , the Family Advocate
plays an important role in assisting the court an d a failure to refer a matter
concerning the interests of a minor child for an investigation by the Family
Advocate may in certain circumstances be unwise and may lead to a result
which is neither just nor expeditious.19
[32] It is in the court’s discretion whether as upper guardian it relies on the
recommendations of the Family Advocate.20 The court a quo dealt extensively
with the report of M rs Schutte and the weight to be attached to it ,21 and the
input received from the office of the Family Advocate.22
[33] When considering the best interest of OR the court a quo had regard to all the
information before it - the long history of high conflict between the parties, the
inability to effectively communicate as parents , and OR’s emotional
deregulated behaviour as reported by both parties to the Family Advocate and
Councilor and as observed by Mrs Schutte.23
[34] The facts before the court a quo was not considered in isolation . Regard was
given to what happened in the past, after the close of pleadings , and even
right up to the day when the court consider ed the evidence . This includ ed the
possibilit y of what might happen in the future if the court ma de a specific
order.24
17 My emphasis. In Centre for Child Law v TS and Other 2023 (6) SA 1 (CC) s ection 4 was declared invalid as it
excluded unmarried parents from the simplified process for initiating an enquiry by the Family Advocate into
the welfare of children born from such relationships
18 Soller N.O. v G and Another 2003 (5) SA 530W at paragraph 23 - 24
19 Terblanche supra at 403C - H
20 ZDE supra at paragraph 20
21 Paragraph 45 to 64 of the judgment
22 Paragraph 65 to 71 of the judgment
23 Judgment paragraph 77
24 Judgment paragraph 81
10
[35] Consequently, I am of the view that another court will not reasonably come to
a different conclusion in respect of the involvement of and reliance placed on
the report and recommendation of the Family Advo cate by the court a quo .
COSTS ORDER
[36] The applicant argues that the cou rt a quo failed to exercise its discretion
judicially in that it failed to consider that the respondent has not complied with
the previous court order to change OR’s surname and that the applicant was
substantially successful with his application on the issue of the surname. In
addition, it is argu ed that since an independent expert was agreed upon to
conduct an assessment it was not necessary for the Family Advocate to
investigat e and that the applicant had no other option but to approach the court
where the respondent rejected the expert’s recommendation, and the
applicant accepted same.
[37] It is a trite that court orders stand until they are amended or set aside. The
September 2019 order, which was made by agreement between the parties,
specifically provided for the Family Advocate to file a final report in the event
of the parties not agreeing to the further extension of the applicant’s contact. I
was not referred to any case law in support of an argument that where the
parties agree to an independent expert that it is not necessary for the Family
Advocate to investigate where an order directs otherwise .
[38] It is a well -established principle that the award of costs unless expressly
otherwise enacted, is in the discretion of the presiding judicial officer.25
[39] Before a court of appeal will interfere with an order as to the costs, it must be
satisfied that there has not been a judicial exercise of the court’s discretion. In
other words, to justify interference on appeal, there must have been an
improper exercise of judicial discretion.26
25 Ferreira v Levin, Vryenhoek v Powell N.O. and Others 1996 (2) SA 621 (CC) at 624 para 3
26 Beinash v Wixley 1997 (3) SA 721 (SCA) at 739G -H; Logistic Technologies (Pty) Ltd v Coetzee and Others
1998 (3) SA 107 0J (WLD) at 107 5I to 1076D
11
[40] The judgment deals with the reasons for the costs order in paragraphs 92 to
94 thereof. Consequently, there is no special circumstances in the application
for leave to appeal to warrant an interference by a court of appeal in the
exercise of this court’s discretion regarding the costs order granted.
REQUIREMENT FOR THE GRANTING OF LEAVE TO APPEAL
[41] The applicant seeks leave to appeal in terms of the provisions of section
17(1)(a)(i) and (ii) of the Superior Courts Act .27
[42] The applicant argues that the appeal would have a reasonable prospect of
success and that there are compelling reason s why the appeal should be
heard. According to the applicant an appeal court ’s guidance is required on
the nature and extent of the court’s powers as upper guardian when face d with
conflicting expert opinion s and when the Family Advocate is called upon to
give evidence, so as not to curtail the powers of the upper guardian but also
that t he rules of justice and fairness and laws of evidence are still adhered to.
[43] The test for granting leave to appeal has become more stringent and the
threshold for granting of leave to appeal more onerous.28
[44] In determining whether there is a reasonable prospect of success and
compelling reasons I considered the judgment, and the application, the heads
of argument filed at the hearing by the court a quo , including the subsequent
heads of argument, the orders granted in September and November 2024 and
the notices and argument of both parties in the application for leave to appeal.
[45] I am not persuaded that another court would come to a different conclusion,
that the appeal would have a reasonable prospect of success , or that there is
some other compelling reason why the leave to appeal should be granted.
None of the grounds are novel . There are no conflicting judgments regarding
27 10 of 2013
28 Section 17(1)(a)(ii)