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 DIVISIO N, CAPE TOWN)
JUDGMENT
REPORTABLE
Case no: A83/2024
In the matter between:
S[...] E[...] T[...] FIRST APPELLANT
G[...] L[...] B[...] SECOND APPELLANT
R[...] B[...] THIRD APPELLANT
and
THE DEPARTMENT OF JUSTICE FIRST RESPONDENT
THE PRESIDING OFFICER : SECOND RESPONDENT
MAGISTRATE Y SIPOYO
Neutral citation: S[...] E[...] T[...] and others v The Department of Justice and
another (Case no A83/2024 ) [202 5] ZAWCHC (4 July 2025 )
Coram: CLOETE J AND MAYOSI AJ
Heard : 11 June 2 025
Delivered : 4 July 2025
Summary : This is an appeal from order s made by the Children ’s Court, Atlantis
dismissing a n app lication to set aside a no-contact order made by it in terms of section
46(1)(h) and (x) of Act 38 of 2005 ; to place baby R in the care of the second appellant ,
alternatively both minor children in the care of the first appellant subject to various
safeguards; and thereafter placing the minor children that form the subject matter of this
application in permanent foster care.
ORDER
1 The application for leave to place further evidence before this Court is granted.
2 The appeal is upheld, and the following orders are made.
3 The no -contact order granted by the Children’s Court, Atlantis, on 5 December
2024 in relation to X and baby R (the minor children) and their maternal and
paternal family members is set aside.
4 The order made by the Children’s Court, Atlantis, on 23 April 2025 placing the
minor children in the permanent care of foster parents is set aside, subject to the
further terms of this order.
5 The minor children shall be returned to the custody and care of the second and
third appellants who remain the legal guardians of the minor children with
parental rights and responsibilities in terms of the Children’s Act 38 of 2005.
6 Baby R’s return to the custody and care of the second and third appellants shall
occur forthwith.
7 X’s return to the custody and care of the second and third appellants shall occur
only in the event that the bail conditions applicable to the second and third
appellants in connection with the pending criminal case against them have been
amended to permit such return.
8 In the interim, pending X’s return to the custody and care of the second and third
appellants as envisaged in paragraph 7 above or the finalisation of the criminal
proceedings against them, whichever occurs first, X shall be placed in the care of
the first appellant as soon as the second and third appellants have secured
suitable alternative accommodation which shall be paid for by them, at which
accommodation the first appellant shall reside with X; and in such event the
second and third appellants shall be allowed daily contact with X as follows:
8.1 on school days after school until 18h00.
8.2 during weekends between 11am until 18h00.
8.3 under the supervision of a person approved by Dr Astrid Martalas, at the
cost of the second and third appellants.
9 All costs relating to X’s daily living expenses, including but not limited to those for
her food, education, medical care, therapy, childcare, transportation and
entertainment as well as the costs of running and maintaining the residence at
which she will reside with the first appellant shall be borne by the seco nd and
third appellants.
10 The second and third appellants’ contact with X as envisaged in paragraph 8
above shall occur only in the event that the bail conditions applicable to them in
connection with their pending criminal case have been amended to permit such
contact.
11 The appellants shall not discuss with the minor children, or in their presence, any
details concerning or in connection with the second and third appellants’ arrest,
their incarceration and the pending criminal proceedings; and furthermore, the
appellants shall ensure that no such discussions are held by any other parties in
the presence of the minor children.
12 The second and third appellants shall reside with baby R, and X should her
return be permitted by the bail court, at […] A[...] Way, A tlantic Beach Golf
Estate, Melkbosstrand or at any other alternative address that they may from
time to time be permitted to reside in, in terms of their bail conditions.
13 Dr Astrid Martalas shall act as the case manager in relation to X, and shall
compile monthly reports regarding her welfare, which reports may be submitted
to a competent court if called upon to do so. The costs for the services of Dr
Martalas shall be borne by the second an d third appellants.
JUDGMENT
Mayosi AJ :
[1] This case concerns what is in the best interests of two minor children – a six-
year-old girl X, and a one-year-old boy I shall refer to herein as baby R (the minor
children ), in the peculiar circumstances that are set out below .
[2] Their mother is the second appellant . She is the wife of the third appellant , who
in turn is the father of the minor children (the parents ). The minor children have a half
sibling , 13-year-old H[...] who was born to the third appellant from a previous marriage.
H[...] lives in New Zealand with her mother but has visited the family regularly over the
years in Doha, Qatar , where the family has be en living , and is therefore very much a
part of the family set -up.
[3] The second appellant is a British citizen . She has no prior convictions and is the
owner and CEO of R [...] E[...] and other businesses operating in Doha, Qatar, whilst the
third appellant is a South African businessman employed at M[...] C[...] for the past 14
years. The family has been living in Doha, Qatar ; and the parents also own a property at
[...] A[...] Way, Atlantic Beach Golf Estate in Melkbosstrand, near Cape Town which I
understand to be their home base when they are in South Africa.
[4] The first appellant is a British citizen, and she is the aunt of the second appellant .
She therefore forms part of the extended family of the minor children from the maternal
side.
[5] The genesis of this case is the arrest of the parents on 31 October 2024 on
charges that include human trafficking, rape and sexual assault . This includ es the
alleged sexual a buse of their six-year-old daughter X. The complainant in the criminal
matter is a former employee of the second and third appellant s, one J[...] O[...] (the
complainant ). By virtue of her being the subject of some the charges which h er parents
face in the impending criminal trial , X is a potential witness in th at case.
[6] The complainant made the first set of her accusations against the second and
third appe llants on or about 14 October 2024. On 16 October 2024, members of ACVV
conducted an unexpected home visit at the parents ’ home in Melkbosstrand. The third
appellant was overseas at the time , and the second respondent was present in the
home with the minor children. The minor children were medically examined and a J88
was completed by the examining doctor, who found no indication s of se xual abuse of
the minor children and the findings were all normal. During a second visit conducted by
the ACVV members on 17 October 2024, the second appellant was requested to submit
to a drug test, which she did , and the results were negative.
[7] The complainant made a second set of accusations to the p olice later in October
2024, in which she alleged that the second and third appellants were sexually abusing
or had abused their daughter X, after which further accusations the parents were
arrested on 31 October 2024 and the minor children were removed from them .
[8] Furthermore, on that same date , the minor children were again subjected to
medical assessments. This time the medical assessments were performed by a Dr
Swanepoel of the Thuthuzela Care Centre at Victoria Hospital. She reported that she
had no concerns regarding baby R but that there were alarming signs in respect of X , in
regard to whom she reported that the condition of her hymen was suggestive of
historical blunt force trauma and was in keeping with the history pr ovided by the
complainant that X had been repeatedly raped.
[9] After the parents’ arrest the second appellant was incarcerated in Pollsmoor
Prison from where she awaited trial. At the time of his mother’s arrest baby R was four
month s and two weeks old and was being breast -fed by h er. They were then separated .
The third appellant was incarcerated at Malmes bury Prison awaiting trial .
[10] After the arrest of their parents t he minor children were placed , first, in foster care
and when that proved unsuccessful , they were placed at the Baitul -Ansaar Child and
Youth Care Centre in Mitchells Plain .
[11] On 5 December 2024 , the Children ’s Court in Atlantis made an order in terms of
section 46 (1)(h) and (x) of the Children ’s Act 38 of 2005 ( the Act ), that there shall be no
contact between the minor children and their respective maternal and paternal family
members pending the finalisation of the children’s court proceedings. This is order,
which was granted ex parte , is what is referred to in these proceedings as the no -
contact order that is at the heart of these proceedings, amongst other issues .
[12] On 21 February 2025, the parents ’ application for bail was refused by the
Magistrate, Atlantis Court . The parents lodged an appeal to this Court , which was
upheld on 23 May 2025 when they were granted bail by Mapoma AJ, subject to various
conditions .
[13] On 6 March 2025, the appellants brought an application in the Children’s Court in
Atlantis, seeking the setting aside of the no-contact order , and further that baby R be
placed in the care of the second appellant subject to appropriate safety provisions;
alternatively that both minor children be placed in the care of the first appellant subject
to various safeguards , whilst the parents remained incarcerated . The matter came
before the second respondent (the magistrate or the learned magistrate ), who
postponed it for hearing on 20 March 2025 in order to afford the ACVV more time to file
a report , and to afford the ACVV an opportunity to respond to the application.
[14] On 20 March 2025 , Legal Aid appeared on behalf of the minor children at the
request of the magistrate . The Legal Aid representative requested a postponement to
consider the application papers and the ACVV requested a further extension to file their
report pertaining to permanent foster placement on the basis that family members were
not being considered, given the no -contact order made earlier. It bears noting that at
this point when permanent placement was being considered , no interaction had been
had by ACVV with the parents regarding their suitability to continue to hold parental
rights and responsibilities in relation to the minor children ; their response /s to the
allegations they faced in relation to X (no concern s had been expressed relating to ba by
R) and, ultimately , their suitability to care for their minor children should they secure
bail.
[15] The application to set aside the no -contact order and place the minor children
with the first appellant or their mother (in the case of baby R) was postponed to 4 April
2025.
[16] The ACVV filed their report on 2 April 2025 and Legal Aid filed an opposing
affidavit on 3 April 2025. The ACVV had an interview with the first appellant on 3 April
2025 and handed a supplementary report to the Court and the ap pellants ’
representatives on 4 April 2025 regarding the suitability of the first appellant to care for
the minor children.
[17] Ms Louw, a social worker f rom the Department of Social Development ( DSD ),
also attached a forensic assessment report prepared by Captain Golding in re spect of X
to her report. Attached to the Legal Aid opposing affidavit was a report of Ms Kriel, X’s
therapist who met with the State’s team.
[18] After hearing argument on 4 April 2025, judgement was reserved and the matter
was postponed to 16 April 2025.
[19] On 16 April 2025, the second respondent dismissed the application to set aside
the no -contact order and place the minor children with the first appellant and indicated
to Ms Louw that she intended to formalise the permanent foster care placement as
recommended by the ACVV . The second respondent advised Ms Louw to attend court
on 23 April 2025.
[20] After the court adjourned on 16 April 2025 , the appellants filed and served a
notice of appeal. By operation of law, any execution of the second respondent’s
dismissal of the application to set aside the no -contact order and the ancillary orders
sought the rein ought properly to have been suspended by the delivery of the notice of
appeal . However , this did not occur, because the second respondent nonetheless
proceeded to execute her decision by placing the minor children in permanent foster
care on 23 April 2025 .
[21] The minor children were handed over to the foster parents at Court on 23 April
2025. This was their third placement in the almost -six-month period since they were
removed from their parents on 31 October 2024.
[22] This appeal, therefore, is against the second respondent ’s decision to refuse the
setting aside of the no -contact order and the ancillary relief sought in that application . It
was initially set down for hearing on 13 June 2025 but was heard earlier on 11 June
2025 The appeal papers were served on the respondents, the Legal Aid representative
for the minor children , DSD and the ACVV and we were provided with proof of
notification of the earlier hearing to all parties concerned. The Legal Aid representative
informed us in writing that she had no mandate to represent the children at the hearing
of the appeal.
[23] The appeal was not opposed by any party.
[24] At the hearing of this appeal on 11 June 2025, the appellants made application
for leave to place further and new evidence before this Court. The further evidence
related to the following events that occurred after the second respondent’s refusal of the
setting aside of the no -contact order on 16 April 2025; i.e.; (a) the fact that the second
respondent had proceeded to place the minor children in permanent care on 23 April
2025, notwithstanding the appellants’ delivery of a notice of appeal on 16 April 2 025;
(b) the fact that the second and third appellants had been granted bail on 23 May 2025;
(c) the details regarding when the second and third appellants discovered X’s historical
sexual abuse by a third party in Doha, and the steps taken by them to supp ort her and
seek appropriate curative medical intervention for her, which efforts were interrupted by
their arrest on 31 October 2024; (d) Dr Astrid Martalas’ s report on the long -term impact
of separating children from their primary caregivers and attach ment disruptions, as has
happened to the minor children; and (e) the willingness of the minor children’s maternal
grandmother, in addition to the first appellant, to care for the minor children subject to
any safeguards that this Court impose.
[25] The applica tion to place further evidence was granted by this Court, on the basis
that the new information was material and relevant to the issues for determination in the
appeal.
The authorities’ interaction with the parents of the minor children
[26] In the period of eight months since the removal of the children from their parents,
the second appellant has received only two updates in respect of them, and both
updates were given to her by her social worker at Pollsmoor Prison where she was
awaiting trial, af ter many requests to see photographs and be provided with information
regarding her children.
[27] The first update that the second appellant received was on 3 December 2024
and the second update was four months later on 3 April 2025. The children’s father –
the third appellant - was not provided with a single update regarding the children whilst
he was incarcerated – from 31 October 2024 until 23 May 2025.
[28] Letters addressed by the attorneys of record of the second and third appellants
to ACVV, on 28 March and 3 April 2025, recording, inter alia , the dismissive conduct of
the ACVV and their failure to provide information to the second and third appellants
regarding their children’s wellbeing went unanswered. Similarly, numerous attempts by
the first appellant to contact ACVV requesting updates regarding the children and their
wellbeing went unanswered.
[29] This conduct forms an important backdrop against which t he best interests of
these minor children w as approached by DSD, ACVV , the legal representative
appointed for the minor children and the learned magistrate . In this backdrop, the
following factors appear to have been lost sight of by all those seized with what was in
the best interests of the minor children in this matter, including the learned magistrate ,
that: (a) the parents are innocent of the charges against them until proven guilty; (b)
human nature is complex ; (c) parents are not perfect ; and, (d) except in the clearest of
cases to the contrary, children are entitled to and deserve the love , care, attention of,
and upbringing by, their biological parents and extended family .
The no-contact order granted on 5 December 2024
[30] In terms of section 2(a) of the Act, one of its m ain objects is to promote the
preservation and strengthening of families. In my view, the word ‘family’ refers to a
child’s nuclear family and extended family. The Act defines a family member, in relation
to a child, as, inter alia : (a) a grandparent, brother, sister uncle or aunt o r cousin of the
child; and (b) any other person with whom the child has developed a significant
relationship, based on psychological or emotional attachment, which resembles a family
relationship. The first appellant , who is a great aunt of the minor children and with
whom , on the uncontested evidence, X in particular has developed a close bond, is
clearly a member of the minor children’s family.
[31] Similarly , section 2(b)(i) of the Act states that it aims to give effect to the
constitutional rights of children to family care or parental care or appropriate alternative
care when removed from the family environment. These rights are to be found in section
28 of the Constitution .
[32] Section 7(1)(f) of the Act particularly emphasises the importance of family and
the need for children to remain in the care of their family and extended family wherever
possible , and to maintain a connection with their family, extended family , culture o r
tradition.
[33] Section 157(1)(a) stipulates that before a Children ’s Court can make an order in
terms of section 1561 is made by a co urt for the removal of a child , the court must obtain
and consider a report by a designated social worker on the condit ions of the child’s life ,
which must include -
33.1 an assessment of the developmental, therapeutic and other needs of the
child;
33.2 details of family preservation services that have been considered or
attempted; and
33.3 a documented permanency plan taking into account the child’s age and
development needs aimed at achi eving stability in the ch ild’s life and
containing the prescribed partic ulars.
[34] In the view of this Court, and against th ese legal principles, the second
respondent erred in granting the no -contact order on 5 December 2024 , and in refusing
to set it aside on 16 April 2025 , for the reasons that follow.
[35] We were also provided with a transcript of the proceedings before the second
respondent. The no -contact order appears to have been granted on the basis of a report
dated 22 November 2024 , in which Ms Louw opined that it would be in the best interests
of the minor children to have no contact with any family members until completion of the
investigation due to the sensitivity of the matter and the children’s need to be brought up
1 This deals with orders made when a child is in need of care.
in a stable home. She further stated that: “Further to this, as it seems there are
allegations that family often travelled with the family or possibly resided with family, it is
not clear if they are involved in any way or could possibly influence the children in any
way.”
[36] It does not follow from the fact that family members travelled together, which is
what family members do, that those family members are th en to have no contact with
the minor children of th at family when the other family members they travelled with
become accused of crimes against those minor children. Furthermore, the above
statement itself by Ms Louw expresses nothing definitive or conclusive regarding all the
maternal and paternal family members that were ultimately ordered to have no contact
with the children. She says it is not clear if they were involved, and yet those very
(unnamed) family members were ordered by the second respondent to have no contact
with the minor children at all , seemingly indefinitely .
[37] In the hearing of the application to set aside the no -contact order, t he magistrate
accepted as correct the following factual submissions, which were incorrect: (a) that
were the children to be given to the first appellant to live in their house in
Melkbosstrand, they would return to where some of the sexual abuse took place and
this would further then subject X to secondary trauma. First, no sexual abuse has been
found to have taken place, and second, such sexual abuse as is alleged allegedly took
place in Qatar, not in the residential home in Melksbosstrand. There are therefore no
issues of secondary trauma that would arise at the Melkbosstrand home as was found
by the learned magistrate.
[38] Another fact, which appears to have influenced the magistrate in her findings,
and which was incorrect , is her assertion in her judgment that the third appellant
accused his oldest daughter of taking X to a neighbour who sexually abused her. This
is factually incorrect. The third appellant ’s oldest daughter H[...] lives in New Zealand
and visits the famil y occasionally. It was the second and third appellants’ then-nanny
Chet whom th ey suspected had facilitated the alleged sexual abuse of X by their
neighbour in Doha , in that it was Chet who took the child to the neighbour where these
acts allegedly occurred.
[39] The magistrate made a factual error in another respect as well , which also
influenced her finding in regard to the non -suitability of the first appellant to care for the
minor children. She found that the minor children, if placed in t he care of the first
appe llant, may be caught in a constant struggle between the first appellant and “the
maternal aunt whom [the first appellant] alluded to as the potential support system if she
were granted care of the minor children as she views her as her rival in wanting to take
care of the children.” On the facts before us, the person that the magistrate meant to
reference w as the maternal grandmother of the minor children, not their maternal aunt
who is the first appellant . The children’s maternal grandmother resides in the UK and
stands ready to come to South Africa to care for the children should her service s and
assistance be needed to do so. There is no rivalry between the first appellant and the
maternal grandmother . They are both available and willing to care for the children, and
in the event of one not being available the other will step into the breach and care for
the children , in the absence of the parents .
[40] The court a quo erred in refusing to set the no -contact order aside o n 23 April
2025 and furthermore erred in thereafter placing the children in permanent foster care,
in all the circumstances of this case. In particular given that a notice to appeal her order
had been delivered on 16 April 2025.
[41] The decisions of the lea rned magistrate are not in keeping with the objectives of
the Act and are not in the minor children’s best interests.
[42] Those objectives in the Act include promoting the preservation and strengthening
of families, which the learned magistrate did not have r egard to. The learned magistrate
did not have regard to the importance of promoting the preservation and strengthening
of families because she, like the ACVV and DSD, moved from the premise that the
parents were guilty of the offences with which they have been charged.
[43] It also appears from the learned magistrate’s judgment that a main consideration
for her reaching her decision was the State’s fear that X’s testimony in the criminal trial
would be influenced by family members should she have contact with them or be placed
with them. In this regard, the magistrate found that the first appellant poses a poten tial
external influence in favour of the biological parents as she is a family member who is
supportive of the parents and, as a result, she may in turn expose the minor children to
undue pressure and influence and, in the magistrate’s view, the children’s safety and
emotional security should outweigh all the other considerations.
[44] The second respondent, unjustifiably, simply accepted that the first appellant
would deliberately influence X because the first appellant honestly stated that she was
not aware of the accusations against the second and third appellants and has a good
relationship with the second appellant – her own niece.
[45] First of all, it does not follow from the fact that the first appellant is supportive of
the parents that she will exert und ue pressure and influence on th e children. The first
appellant’s support for the minor children’s parents has no bearing on the children’s
safety and emotional security. The children’s safety and emotional security, as I see it,
is primarily dependent upon the environment that is created for them to thrive – by the
first appellant or their parents; the love, and care they receive; the routines set up and
maintained for them in the promotion of their needs, desires and welfare; and ultimately
the attention t hey receive from those charged with their care. The first appellant’s
support for the minor children’s parents does not negate any of these things.
[46] Second, the fact of a family member or members expressing their support for the
second and third appellan ts (who are, it must be remembered, innocent until proven
guilty) is not on its own, and without more, a disqualifying factor in terms of that family
member’s ability to care for the minor children. If this were the case, then all those
related to the sec ond and third appellants who , believing in their innocence, support
them would be disqualified from caring for the minor children, and only those family
members who did not support the parents, or who did not have a good relationship with
them, would qual ify to care for the minor children. All of this needs only be said in order
for its absurdity to be apparent, and the magistrate erred in finding the first appellant
unsuitable to care for the children for these reasons.
[47] There was no factual basis for g ranting the no -contact order, in the manner in
which it was couched, or at all. There was no evidence placed before the magistrate
when she granted the no -contact order that any members of the maternal and paternal
family who f ell under the ambit of the no -contact order had any knowledge of the
allegations against the parents at all or had taken part in the activities that the parents
are accused of. All of the maternal and paternal family members who became
effectively banned from interacting with these minor children were not before the second
respondent, and there was no information before that court regarding them . Such
information was necessary, given that the proceedings were ex parte , and furthermore
given the drastic nature and effect on the minor children, and their constitutional and
statutory rights to family, of the no -contact order granted by the learned magistrate.
There was some limited information about the first appellant, but even that was not such
as to disqualify her from interact ing with or caring for the minor children.
[48] Furthermore, the learned magistrate did not consider at all, and this is apparent
from her judgment, the safeguards proposed by the appellants in the application to set
aside the no -contact order, which were furn ished in order to ensure that no undue
influence and pressure as feared would take place in the event that the no -contact order
were lifted and the children were placed in the care of the first appellant. These
safeguards included the support of a therapis t for the minor children whilst in the care of
the first appellant; the expertise and oversight of psychologist Dr Astrid Martalas , who
has extensive experience as a case manager ; and the oversight offered by a trained au
pair for the children. The learned magistrate was wrong not to consider these or any
safeguards at all .
[49] I do not believe there to be any safeguards necessary in regard to the placement
of baby R with his parents , now that they are out on bail. He should never have been
removed from his mother in the first place , and to impose safeguards regarding the care
of him by his parents would be tantamount to robbing them of their right to innocence
before guilt, and baby R to the care of his parents , and would circumscribe the second
the third appellants’ parental rights and responsibilities in relation to baby R , where no
case has been made out for this. Moreover, and as stated above, there is no evidence
at all that his care by his parents places him in any risk or danger.
[50] For all of the above reasons, the magistrate erred in granting the no -contact
order; she erred in refusing to set it aside on 16 April 2025 and she furthermore erred in
finding the first appellant unsuitable to care for the minor children, for these reasons that
she did. There was no factual basis for granting the no-contact order; and both its
granting and the refusal to set it aside were not in the best interests of the minor
children.
The care of baby R
[51] The second respondent correctly identified in her judgment th e importance of the
provisions of section 9 of the Act which stipulates that in matters concerning the care ,
protection and well -being of a child the standard that the child’s be st interest is of
paramount importance must be applied. However, the learned magistrate does not
appear to have had regard to the provisions of section 7 of the Act that deals with the
factors that must be taken into consideration where relevant, whenever a provision of
the Act requires the best interests of the child standard to be applied. That the
magistrate paid no heed to these factors is apparent in her judgment insofar as her
consideration of the interests of both minor children is concerned. It is particularl y
glaring when regard is had to her consideration of what is in the best interests of baby
R, to whom I turn now , as compared to what was in the best interest of X . The second
respondent appears to have proceeded from the premise that both minor children
constituted a homogenous entity with the same interests, in terms of what was in their
best interest s. This was one of her error s, as the two children are separate individuals
who ha ve different interest s that are best for them , in particular when regard is had to
their respective ages and the issues that the criminal matter raises .
[52] When baby R was removed from his mother on 31 October 2024, he was four
months and two weeks old. He was b eing breast -fed by his mother. For this reason
alone, and other reasons as set out below, h e should never have be en separated from
his mother or, failing her, his extended family at that juncture in his life.
[53] The f actors that ought properly to have guided and influenced the learned
magistrate in determining what was in the best interests of baby R included : (a) the
likely effect on him of separation from his mother at that tender age , when he was so
vitally connecte d to and dependent on her for his very sustenance and his emotional
and psychological wellbeing ; (b) the likely effect on baby R of separation from not only
his then family unit, but how that could have been ameliorated by the continued
presence of his extended family, the latter for some semblance of the stability provided
by a continuation of familiarity in the persons and surroundings in which he lived; (c)
the need for baby R to remain in the care of his mother , and failing her, his extended
family ; (d) the need for him to maintain a connection with his family and extended
family, culture or tradition s; and (e) which action s or decision s would avoid or minimise
further legal or administrative proceedings in relation to baby R.
[54] There is no evidence from her judgment that the learned magistrate considered
these factors in her determination of what was in the best interests of baby R.
[55] And so , as a result and after the severance of baby R’s bond with his mother on
31 October 2024 when he was just four months old , the learned magistrate ord ered on
5 December 2024 when he was six months old , that he was to have no contact with any
member of his paternal and maternal family . On 16 April 2025 when baby R was ten
months old, the learned magistrate upheld her initial no-contact order and on 23 April,
she ordered that he be placed in permanent foster care, resulting in the appeal that is
before us .
[56] The learned magistrate made these orders knowing that, since his removal from
his parents on 31 October 2024, baby R had no contact with his mother who had been
breastfeeding him, or his father or any member of his extended family . She did not
question th is reality , with reference to what was in the best interests of this baby.
[57] Instead, the learned magistrate ordered that baby R be placed permanently with
foster parents, meaning that from the age of ten months , because of unproven (and
admittedly serious) allegations against his parents, he is not to benefit from the love,
attention , care, protection , influence and upbrin ging from them and any and all other
members of his family.
[58] Moreover, t here are no accusations of any sort against members of the minor
children’s paternal and maternal extended family (except that they travelled with the
nuclear family , and supported them ), yet they too stand effectively banned by the no -
contact order from exercising contact with t he minor children , which order was granted
in their absence and without their knowledge .
[59] Whilst still on baby R , the rationale behind the no -contact order must not be lost
sight of; i.e.; that the maternal and paternal family members of these minor children with
whom they were to have no contact until the finalisation of the criminal case (effectively
for an indefinite period of time, if one has regard to the time the prosecution of criminal
cases takes ) were likely to influence the children in relation to the allegations that their
parents are facing in the criminal case , thereby prejudicing the State’s case in the
criminal matter. In my view, this is not only an unfounded conclusion (that these
relatives will influence the minor children) but it is a totally irrational conclusion in
relation to baby R , for there can be no basis – there is none in fact before this Court - for
a conclusion that a four month old baby in general , or that this baby in particular , is
capable of even grasping the issues raised in the criminal case, let alone being
influence d about them. No such facts were presented in any of the reports that served
before the m agistrate regarding baby R.
[60] This is another demonstration of how the learned magistrate failed to consider,
and distinguish, what was in the best interest of baby R versus what was in the best
interests of X.
[61] In the event, t he date on which this appeal was heard on 11 June 2025 was the
date on which baby R turned one years old. This means that h e has been apart from his
parents and extended family members for a period that is longer than the time that he
has be en alive. It is important for this statement to be said, and for it to be allowed to sit
in the room , in order that there may be a full grasp of the impact of the removal of this
infant from his mother and entire family set -up at that stage in his life . And to what end,
this Court asks rhetorically.
[62] All of this occurred in circumstances where, in my view, what was in the best
interest s of baby R was not considered by the second respondent before she ordered
that baby R : (a) was to hav e no contact with any member of his maternal and paternal
family members for what effectively will be an indefinite period ; (b) be placed
permanently in the care of strangers – a third set of strangers within a six month period
after his removal from his parents – thereby being permanently separated from his
parents and extended family members , again indefinitely. All of this in circumstances
where his parents were appealing the dismissal of their bail application and also when
there were family member s willing and able to care for baby R in the absence of his
parents .
[63] As things turned out, the second and third appellants were granted bail on appeal
to this Court on 23 May 2025 , an eventuality which the second respondent ought to
have anticipated the possibility of in her judgment , and before she placed the minor
children in permanent foster care , had she been motivated by what is in the bes t
interests of both minor children . She did not do so and this was a grave error on her
part.
[64] The parents are now able to take care of both of their children , from their
residential home in Melkbosstrand which they have been ordered to reside in in terms of
the bail conditions applicable to them , subject to what is said below insofar as it relates
to X.
[65] Given their release from incarceration, there is no reason why , in my view, both
minor children shou ld not benefit from the care, love , attention and support of their
parents that they are constitutionally entitled to , subject to certain safeguards when it
comes to X.
[66] The second and third appellants remain the holders of parental rights and
responsibilities to both minor children under the Act, and no evidence has been
presented before this Court to the effect that they are otherwise unsuitable parents .
[67] When it comes to baby R , the magistrate seems to have accepted , incorrectly so
in my view , the submissions made to her that the placement of baby R with his mother
in Pollsmoor Prison was not ideal as he could only be there with his mother for two
years . What the magistrate lost sight of is that t wo years spent with his m other is a
significant period for a n infant , a fact of which the social workers seized with this matter
and who placed numerous reports before the magistrates ought to have been aware.
The importan ce of this period for an infant is evident from a report of Dr Martalas placed
by the appellants before this Court , to the effect that , inter alia, the threat of separation
or loss of an attachment figure is a major stressor, especially during infancy and early
childhood which is where baby R is.
[68] Furthermore, the magistrate appears to have accepted the submission made to
her that baby R had then already been separated from his mother for the past five
months and to ‘return’2 him to prison and to subsequently remove him again when he
turns two years old will have a detrimental effect on him. The magistrate ’s acceptance
of this submission , which was glib, was wrong for at least two rea sons: (a) there was no
consideration of the impact on baby R of removing him f rom his mother in the first place ,
at four months old when he was being breastfed and the importance of re -introducing
that bond and the need to correct that attachment disruptio n; and (b) the magistrate’s
acceptance of this submission evinces an assumption by her that the second appellant
will remain in prison where she was awaiting trial for a period longer than two years .
This submission, which the magistrate accepted incorrectly , was unfounded given that
the second appellant had not be en found guilty and sentenced of any crime and was in
fact awaiting the outcome of her bail appeal , which turned out to be successful .
[69] It is for all of the reasons stated above that this Court finds that it is in the best
interests of baby R to be returned to the custody of his parents , and for this to happen
forthwith. The reunification of baby R with his parents , and his extended family, is
critical f or his short - and long -term development, if regard is had to the report of Dr
Martalas. The respondents have placed no evidence before this Court to rebut this.
The care of X
[70] The consideration of the proposed safeguards was of particular importance whe n
it came to what is in the best interests of X , because the allegations faced by the
parents in the criminal trial also relate to her and she is a potential witness in those
proceedings . The magistrate’s failure to consider the proposed safeguards suggests
that she too, as did the ACVV, DSD and the children’s legal representative, moved from
a premise that the parents were guilty of the offences with which they are charged and
therefore there was no need to even fathom a world where they could have contact with
X pending the criminal trial, and what conditions that could occur under .
2 This word was used incorrectly as baby R had never been placed with his mother in prison.
[71] After their removal from their parents on 31 October 202 4, X, like baby R, was
placed with the first set of foster parents and when that failed, she was placed in the
Children and Youth Centre and , thereafter , the permanent foster parents .
[72] Since her removal from her parents, X has been extensively medically exam ined;
interviewed by a social worker at the hospital; interviewed by Ms Louw of DSD;
interviewed by Dr Swanepoel and interviewed by Captain Golding. The minor children
were summarily removed from their parents without the children being given any
explanation on the evidence before us , a factor which is more pertinent to X given her
age, than baby R.
[73] The allegation s of the sexual abuse of X by the parents are pertinent to the
contact arrangements that can be made between X and her parents, in her best
interests .
[74] These contact arrangements , accompanied by the necessary safeguards , are
furthermore pertinent to the protection of the integrity of the criminal proceedings th at
X’s parent s face, at least insofar as concerns the charges relating to X, as buttressed by
the bail conditions that were imposed on the parents on 23 May 2025 when they were
released on bail by Mapoma AJ of this Division.
[75] In relation to the placement of X with the first appellant, the learned magistrate
held that “with the pending sexual and child abuse charges against the parents it would
not be in [X’s] best interests to stay with [the first appellant ] who is a close fami ly
member and directly related to the biological mother as the possibility exists that she
may be conflicted and inclined to align herself with the parents of the child.”
[76] The reasoning evinced in the above statement is problematic . On the contrary,
the fact of the first appellant being a close family membe r who is directly related to X’s
mother is not the s tigma that the magistrate ascribed to that relationship, one that
disqualifies the first appellant from associating with the children of the second appellant.
If anything, that close familial relationship, in the absence of any other objective
disqualifying factors on the part of the first appellant, places the firs t appellant in a prime
position of suitability to care for the children. In addition , the fact that the first appellant
is supportive of the parents of the minor children as well as the interests of the minor
children presents no conflict. On the contrary , once again, this presents a position of
alignment that qualifies, rather than disqualifies her to care for the children.
[77] The allegations facing the second and third appellants are indeed serious,
including those relating to X. However, what the application to place further evidence
before this Court in this appeal reveal s is that, subsequent to their arrest, neither the
ACVV, DSD nor the children’s representative appointed by t he second respondent ever
approached the second and third appellants for their version regarding the allegations of
the abuse of X levelled against them, for the purposes of determining what was in the
best interest of the minor children, and X in particul ar.
[78] Had they done so, which on their part would have been conduct that accorded
with the principles of natural justice in the best interests of the minor children, they
would have learnt that the second and third appellants had an explanation that was
worth consider ing at least in that contex t and included it in their reports to the second
respondent who herself seemingly , and concerningly, did not consider this necessary
either.
[79] What is of relevance to the present proceedings, in regard to what is in the best
interests of X is the further evidence which the appellants have placed before this Court
in regard to the sexual abuse of X.
[80] And that evidence is as follows.
[81] According to the second appellant, she and her husband became aware after
they r eturned to South Africa earlier in 2024 that something had happened to X whilst in
Qatar as she was making alarming and st range comments. They immediately took
steps to investigate and f ind out what had happened. At the time that they became
aware of the sus pected abuse by their nei ghbour in Qatar, who they believed was
assisted by a nanny named Chet that was employed by them at the time, X was already
seeing an occupational therapist in Sou th Africa , as a result of certain concerns they
had ab out X.
[82] The second appellant contacted X’s occupational therapist and requested her to
assist her regarding the concerning statement s made by X and asked her to refer her to
a paedi atric gynaecologist. X attended a session with her occupational therapist during
July 2024 , and the latter suggested that the second and third appellants appoint a
private investigator to ascertain what had occurred in Qa tar, which they did.
[83] They also reached out to their legal representative in Q atar to seek his advi ce.
He advised them that they should not proceed to take X to a gynaecologist as, should
the gynaecologist find any scarring or abnormalities, the gynaecologist would be
obligated to report sexual abuse and since the suspected incident was not yet
confirmed, the parents opted to first involve th e services of the private investigator and
involve a psychologist for X. They had one initial consultation with the psychologist and
were in the proc ess of arranging further consultations with someone more experienced
to deal with th eir matter when they we re arrested on 31 October 2024. This version is
largely supported by correspondence annexed to their application .
[84] There is nothing on the evidence before us to indicate that Captain Golding had
this version of the parents prior to h er conclusion that it was the the second and third
appellants who had abused X to the exclusion of anyone else. Neither did the legal
representative for the minor children nor the DSD or ACVV social workers before they
reached the same definit ive conclusions , and seal ed the parents ’ fate insofar as their
entitlement and ability to exer cise contact with their children was concerned . Their
approach to the whole best interest’s inquiry was thus regrettably not balanced, nor was
it child -centric , and the uncontested evidence, buttressed by the report o f Dr Martalas,
lead to the conclusion that the consequences to these two very young children may well
already have been catas trophic.
[85] I see no reason on the facts before this Court, including the information
contained in the further evidence place d before us, why X should be deprived of contact
with her parents, and they of her now that they are out on bail . There is also no reason
why the first appellant cannot care for both minor children, in the absence of the
parents, which is now no longer the case.
[86] However, t he criminal case against the second and third appellants and X’s
potential role in it cannot be thought away , for the purposes of considering what is in the
best interests of X in the circumstances of this matter. It impacts on the manner in which
the second and third appellants can exercise contact with their daughter.
[87] X, is a potential witness in the crimina l cas e, and two of the bail conditions
imposed by Mapoma AJ in his order grant ing the second and third appellants bail on 23
May 2025 st ipulated that: (a) the second and third appellants shall reside at their
residential property at [...] A[...] Way, Atlantic Beach Golf Estate in Melkbosstrand; and
(b) the second and third appellants may not have direct or indirect contact with the
complainant or any other witness for the State in the criminal matter.
[88] As a potential witne ss in the criminal case, X cannot reside with her parents in
their home in Melkbosstrand as this would place the parents in breach of their bail
conditions. Furthermore, any contact between them and X must first be permitted by
the bail court and thereafter be subject to certain safeguards until finalisation of the
criminal proceedings.
[89] An appropriate order which not only advances the best interests of X but also
does not intrude on the integrity of the criminal proceedings is one to the effect that X be
returned to the custody and care of her parents, but only after the bail conditions
applicable to the second and third appellants in connection with the p ending criminal
case against them have been amended to permit such return.
[90] In the interim, and pending X’s return to the custody and care of her parents or
the finalisation of the criminal proceedings against them, whichever occurs first, X
should be placed in the care of the first appellant as soon as the second and third
appellants have secured suitable alternative accommodation which shall be paid for b y
them, at which accommodation the first appellant shall reside with X; and in such event
the second and third appellants sh ould be allowed daily contact with X as follows:
90.1 on school days after school until 18h00.
90.2 during weekends between 11am un til 18h00.
90.3 under the supervision of a person approved by Dr Astrid Martalas, at the
cost of the second and third appellants.
[91] All costs relating to X’s daily living expenses, including but not limited to those for
her food, education, medical care, therapy, childcare, transportation and entertainment
as well as the costs of running and maintaining the residence at which she will reside
with the first appe llant shall be borne by the second and third appellants.
[92] The second and third appellants’ contact with X as envisaged above shall occur
only in the event that the bail conditions applicable to them in connection with their
pending criminal case have been amended to permit such contact.
[93] It is another necessary safeguard that the appellants be ordered not discuss with
the minor children, or in their presence, any details concerning or in connection with the
second and third appellants’ arrest, their incarceration and the pending criminal
proceedings; and furthermore, the appellants are to ensure that no such discussions are
held by any other parties in the presence of the minor children.
[94] The second and third appellants shall reside with baby R, and X should her
return to the parents be permitted by the bail court, at [...] A[...] Way, Atlantic Beac h Golf
Estate, Melkbosstrand or at any other alternative address that they may from time to
time be permitted to reside in, in terms of their bail conditions.
[95] Dr Astrid Martalas shall act as the case manager in relation to X, and shall
compile mont hly reports regarding her welfare, which reports may be submitted to a
competent court if called upon to do so. The costs for the services of Dr Martalas shall
be borne by the second and third appellants.
[96] The appeal being unopposed , there shall be no order as to costs.
_____________________________
N MAYOSI
ACTING JUDGE OF THE HIGH COURT
I agree. And it is so ordered.
_____________________________
J CLOETE
JUDGE OF THE HIGH COURT
Appearances
For Applicant s: Adv A De Wet
Instructed by: Maurice Phillips Wisenberg – CAPE TOWN
For Respondents : No Opposition