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 )
Case number: 11407/2023
In the matter between:
M[...] K[...] Applicant
and
A[...] J[...] K[...] Respondent
JUDGMENT DELIVERED ON 7 JULY 2025
VAN ZYL AJ :
Introductio n
1. These are cases in which the law cannot offer a resolution, but where it acts
as a crutch until the parties settle their differences to such an extent that life
can continue somewhat normally . This is such a case. The one aspect that
all the professionals involved in the matter agree upon is that the parties,
individually, are good and loving parents. The par ties themselves hardly
agree upon anything.
2. The parties, with their minor son L[...], used to reside together in Doha, Qatar.
The applicant instituted divorce proceedings1 in this Court on 13 July 2023
after the respondent had advised her on 10 May 2023 that he wanted a
divorce. The main issue in the div orce action is the care and contact
arrangements in respect of L[...]. The remaining issues are the calculation of
the accrual claim , and the extent of the respondent’s maintenance obligations
in respect of the applicant and L[...].
3. During July 2023 th e applicant launched an urgent application in which she
sought , as Part A, an order granting her (together with ancillary relief) leave to
travel with L[...] to South Africa from Bali, Indonesia, on 19 July 2023. The
application was opposed , but after hearing argument an order was granted on
17 July 2023 allowing the applicant to travel to South Africa with L[...]. The
respondent’s consent was dispensed with.
4. The parties did agree, and it was so ordered, that Dr Astrid Martalas would be
appointed to carry out an investigation and compile a report setting out her
findings and recommendations regarding the relief sought in Part B of the
applicant’s applicati on, namely that the minor child remain in the applicant’s
care in South Africa, subject to the respondent’s rights of reasonable contact,
pending the finalisation of the pending divorce action.2 Part B of the
application was postponed for hearing on 23 August 2023.
5. The respondent refers to Part B of the application as a relocation application,
while the applicant emphasis es the interim nature thereof. Practically, the
situation contains elements of both , especially given the progress of the
litigation over the ensuing months which resulted in L[...] having been in South
Africa for more than a year and a half at this stage . Ultimately, however, it will
1 By way of substituted service.
2 All questions of costs stood over for determination as part of Part B.
be up to the trial court determining the divorce action to direct where L[...]
should reside after the parties’ divorce.
6. Dr Martalas had not yet completed her report during August 2023 , and t he
application was thus postponed to 3 November 2023. On that day, the
hearing did not proceed because Dr Martalas’ report had still not been
finalised. The report was received on 3 De cember 2023, whereafter the
parties agreed to the terms of a postponement order which was granted on 7
December 2023. In terms of the agreed December 2023 order, Part B of the
relief sought was yet again postponed, on this occasion to 5 June 2024.
Certain limited issues were postponed for hearing on 6 February 2024,
pending the final hearing of Part B, namely the necessity or terms of a mirror
order to be confirmed in Doha ; whether the holiday contact takes place in
South Africa or Doha or elsewhere; and the percentage of holiday contact to
be exercised by the respondent pending the hearing on 5 June 2024 (the
applicant having objected to Dr Martalas’ 70%/30% holiday split
recommendation contained in her report ).
7. Contact provisions were made in the ag reed order regarding the respondent ’s
contact with L[...], which was to be exercised in Cape Town as well as
electronically . The order stipulated that regular contact sh ould be exercised,
unsupervised, and contact was provided for in respect of the extend ed family
on both sides which was to be encouraged through regular contact . Provision
was also made for contact between L[...] and Ms D[...] , the parties’
housekeeper in Qatar to whom L[...] seems to be quite attached .3 Provisions
were also agreed to on aspects of therapy for L[...] and the parties , L[...]’s
school arrangements , his dog, Flippie, and the appointment of a further expert
by the respondent , who did not agree with Dr Martalas’ recommendations .
8. The limited issues referred to in paragraph 6 above were eventually n ot
argued on 6 February 2024. At the time, the r espondent requested leave for
3 According to Dr Martalas (whose report will be discussed in due course), Ms David describes
her duties as cleaning the house, assisting with looking after L[...] (including helping with
homework and babysitting when required), and taking care of the family pets.
L[...] to travel with “his” appointed expert , Mr Terry Dowdall , to Doha for
purposes of an assessment there. Such l eave was refused , essentially
because there was no mirror order in plac e. An order granted by agreement
on 23 February 2024 provided that the limited issues were postponed for
hearing together with Part B of the relief sought. The Family Advocate was
requested to conduct an investigation into L[...]’s best interests in relation to
the limited issues . I return to these later in this judgment.
9. Becau se of the psychological and medical assessment provided for in the
agreed 7 December 2023 o rder, as well as the Family Advocate’s report, not
yet having been finalized, the matter was postponed to 12 December 2024.
The Family Advocate delivered a comprehe nsive report in the late afternoon
of 11 December 2024, and the applicant sought a postponement properly to
consider it. The parties thus agreed that the hearing would take place on
Tuesday, 4 February 2025.
10. There are many recriminations to and fro between the parties , and much time
is spent on the papers on blam e, justif ication , and outrage . Their relationship
has clearly broken down completely.4 Regarding the urgent application, for
example, the respondent criticises the applicant for the manner in which it was
brought, saying that it was effectively an underhand way to obtain a relocation
order of a permanent nature , possession being nine tenths of the law. W hen
the applicant went to Bali, she already had no intention of returning to Qatar
with L[...], despite having given an undertaking that she would do so. The
applicant, on the other hand, accuses the respondent of emotional and
physical abuse, and of threatening to have her arrested and deported from
Qatar. She said that she feared him, and no longer trusted him. She also
suspected him of being unfaithful to her in his relationship with Ms D[...] , their
housekeeper in Doha , in respect of whom it was said that she regarded
herself as L[...]’s mother .
11. Be that as it may, the parties are the authors of their own situation, and they
4 It appears form the record that there is by now bad blood between the parti es’ parents as
well, which does not assist the situation.
must accept the consequences that arise therefrom. I have no intention of
laying blame on either side, but shall instead consider the recommendations
made in respect of L[...] by the various expert witnesses who have been
involved with this matter over the past months. I do so mindful of the fact that
the conclusion that I come to is an interim one, as the final arbiter of where
L[...] is to reside will be the court determ ining the divorce action.
12. The circumstances are such that L[...] will necessarily reside with one or the
other of the parties, far removed from each other in terms of locality. In
Godbeer v Godbeer5 the Court stated that, in the normal course, it would be
in children's best interests to reside with both parents in a loving family.
Where, however, parties decided to live their lives separately, an anticipated
conse quence must be that their lives would take different paths and that this
may impact on children having regular and ready contact to both parents.6
This is the case in the present matter.
Background: t he common cause facts
13. I briefly mention the material facts in this matter that are common cause . The
parties , who are both South African citizens, were married7 on 2 April 2005 in
South Africa . L[...] was born on 3 October 2014 in South Africa , and is
currently 10 years old . Both parties’ families live in South Africa.
14. The parties moved to Qatar during 2016 as the respondent obtained
employment there. L[...] therefore resided there for about seven years prior to
July 2023. As the respondent’s counsel puts it: “ It is not disputed that at this
time [that is, when the urgen t application was launched], L[...], then 8 years
old, had been living in Qatar where the parties relocated to some seven years
prior, Qatar having been L[...]’s habitual place of residence at the time .”
5 2000 (3) SA 976 (W) at 981J -982B. See also B v M [2006] 3 All SA 109 (W) paras 156 -158;
and F v F 2006 (3) SA 42 (SCA) at 498B -D.
6 In the minority judgment in Jackson v Jackson 2002 (2) SA 303 (SCA) para 48. Cloete AJA
indicated that, fro m a constitutional perspective, the rights of the custodian parent to pursue
his or her own life or career involved fundamental rights to dignity, privacy, and freedom of
movement. He stated that thwarting a custodian parent in the exercise of such rights may well
have a severe impact on the welfare of the child or children involved.
7 Out of community of property, with the application of the accrual system.
15. The applicant did not work since the parties’ r elocation to Qatar , and was
mainly responsible for L[...]’s care. She had the assistance of a housekeeper ,
Ms D[...] . At present, in South Africa, the applicant is working on a part -time
basis for her sister and is available personally to care for L[...].
16. The respondent told the applicant that he wanted a divorce on 10 May 2023 .
The applicant returned to South Africa thereafter, during July 20 23, and
resides here with L[...] with the leave of this Court .
17. The respondent still lives in Doha and is employed as a radar air traffic control
supervisor at Hamad International Airport on a contract basis. On his version,
he earns 66 000 Qatari Riyals per month ( approximately R323 000.00 per
month).8
18. The respondent’s work is demanding, and he will require additional staff to
care for L[...], even during holiday periods. Ms D[...] will only be able to live
with the respondent in Doha if he is granted sole custody of L[...]. According to
Dr Martalas, whose report will be discussed below, Ms D[...] advised her that
“according to the Ministry of the Interior in Qatar if A[...] has sol e custody of
L[...], she can still stay in their home and sleep over ….” . The situation
appears to be that this will only be possible if a female relative also resides
with the respondent and Ms D[...] in the respondent’s home .
19. L[...] has been living in South Africa since 19 July 2023 . He is attending
school at H[...] I[…] (he is currently in year 5 or grade 5) , and attends various
sports and extra -mural activities, including tennis and tennis league, piano
and guitar lessons . He has recently been selected as a leader in the local
boys’ scouts. L[...] receives therapy from educational psychologist Ms Thea
Coetzee on an ongoing basis .
8 The applicant remarks that no information in relation to the respondent’s bonuses and
overseas bank accounts have yet been furnished. This will no doubt be addressed in the
divorce action.
20. The applicant’s residency in Doha has since been cancelled , and L[...] is no
longer enrolled in any school there .
21. Qatar is a non -Hague country . In terms of Qatari -law, male children are
automatically placed in the care of their fathers from age . There is no record
of cases where a child retained in Qatar has been successfully returned to a
custodian parent. It appears from the Family Advocate ’s report, as well as a
legal opinion obtained by Dr Martalas from an advocate at the Cape Bar
experienced in family law , that t he question of the enforceability of South
African orders in Qatar has not yet been clarified .
22. The parties’ divorce action is dragging along at a snail’s pace (there are yet
again accusations to and fro in relation to the conduct of the litigation ) and at
the time of the hearing of this application the matter was not yet ready for trial.
The expert evidence on record
23. There is contradictory expert opinion on record from the various witnesses
who investigated L[...]’s circumstances . There is n o dispute between the
parties that these witnesses are suitably qualified to express their opinions on
the matter at hand. Their respective conclusions are the bone of contention.
The Court is therefore faced with having to evaluate competing expert
accounts , and then making a determination on the basis of one such opinion.
24. In Geldenhuys v Minister of Safety and Security and another9 the Court
remarked as follows in relation to conflicting expert opinion:
“As the Court noted in R v Morela 1947 (3) SA 147 (A) at 153:
'But the Court or the jury, in cases of the present kind, has not the
special training to enable to act on its own opinion; it really decides
whether it can safely accept the expert's opinion.'
9 2002 (4) SA 719 (C) at 732B -E. See also Michael and Another v Linksfield Park Clinic (Pty)
Ltd and another 2001 (3) SA 1188 (SCA) paras 34 -40 in relation to the general approach to
expert evidence: what is required in the evaluation of such evidence is to determine whether
and to what extent the ir opinions advanced are founded on logical reasoning.
Where in a case such as the present when the experts differ, t he Court must
decide which of the competing experts is the most credible. ….
There are dicta which provide some assistance in the determination of which
expert to prefer in this case. In S v Gouws 1967 (4) SA 527 (E) at 528D the
Court said that:
'The prime function of an expert seems to me to be to guide the court
to a correct decision on questions falling within his specialised field. His
own decision should not, however, displace that of the tribunal which
has to determine the issue to be tried.'”
25. I turn to consider the opinions on record. The papers are voluminous and it is
impossible to ad dress every aspect arising from the reports. My ultimate
assessment is necessarily somewhat robust, particularly in light of the fact
that the approach that I prefer will, given the nature of the relief sought, be a
temporary arrangement.
Dr Astrid Marta las, counselling psychologist
26. As indicated earlier, when the urgent application was argued the parties
agreed that Dr Martalas would be appointed to carry out an investigation and
compile a report setting out her findings and recommendations regarding
L[...]’s primary care pending the divorce.
27. Dr Martalas made various recommendations in her report delivered on 4
December 2023 . She concluded that L[...] should remain in the applicant’s
primary care in Cape Town until he was old enough to make an informed
choice. She further recommended that , should the Court agree to L[...]’s
relocation to Cape Town , the respondent would have a choice whether to
exercise holiday contact in South Africa, Doha, or elsewhere, and that a mirror
order should be put in place in Doha. Such holiday contact should, in her
view, be exercised in such a way that L[...] should s pend 70% of his holidays
with the respondent.
28. The respondent, in a supplementary affidavit dated 5 December 2023, stated
that he did not accept the recommendations of the jointly appointed expert.
He requested an order that Part B of the application be dismissed, and that
the Court should direct that L[...] is to return to reside in Doha subject to
certain tendered contact for the applicant.
29. The respondent requested in the alternative that he be granted leave to
appoint a further expert to investigate L[...]’s relocation, and that pending the
postponement date:
“11.3.1 I will immediately take all such steps so as to make this interim order a
mirror order in Doha and that I provide proof hereof to the Applicant;
11.3.2 That I be entitled to exercise contact with L[...] in Doha over the
upcoming vacation from 10 December 2023 to 10 January 2024 for purposes
whereof L[...] shall be accompanied b y me during all flights;
11.3.3 That I be entitled to exercise contact with L[...] in South Africa or Doha
for 70% of the March/April 2024 school holiday;
11.3.4 That the aforementioned contact only be exercised outside of the
Republic of South Africa subj ect thereto that I deposit an amount of
R200 000,00 into my attorney of record’s trust account, to be released to the
Applicant in the event of me not returning with L[...] to South Africa on the
date as determined and further subject to me providing the A pplicant prior to
L[...]’s departure with copies of his return air tickets (and my own) and a full
itinerary and contact details for L[...] for the duration of his stay with me.”
30. The Court therefore had to determine the necessity or terms of a mirror order
to be confirmed in Doha , and whether holiday contact should take place in
South Africa, Doha or elsewhere. These were the limited issues referred to
earlier.10
31. In an affidavit delivered on 5 February 2024, the respondent abandoned the
relief claimed in his affidavit dated 5 December 2023 and instead request ed
an order that L[...] may leave the jurisdiction of South Africa without a mirror or
10 In para 6 above.
similar order being in place, for the purposes of a five-day assessment by Mr
Terry Dowdall in Doha . Mr Dowell had been appointed by the respondent to
assess L[...]’s circumstances. The relief sought was opposed, because the
applicant expressed fears that the respondent would not return L[...] to South
Africa in the absence of a formal safeguard obliging him to do so. The parties
agreed to argue the issue on 12 February 2024.
32. Dr Martalas delivered an affidavit dated 7 February 2024 in which she
explained that her recommendation regarding holiday contact in Doha was
intended to be subject to a mirror order or similar order being in place . She
confirmed that she was of the view that the applicant’s fear that the
respondent w ould not return L[...] was a reasonable one, and that such a risk
existed. She stated this upon consideration of further information that had
come to light after her assessment , and also retrospectively having regard to
what had been told to her during her assessment. Dr Martalas relied , further,
on a legal opinion obtained from a practising advocate. The opinion indicated
that, should the father retain the child in Qatar, the mother w ould be obliged to
institute proceedings in a competent court in Qatar, whose laws differ
significantly from th ose of South Africa. The court in Qatar would apply Sharia
law, although it could depart therefrom . Only a Qatari lawyer w ould be able to
provide definitive insight in this regard. There is a dispute between the parties
as to the value of the opinion, but the fact remains that the precise natu re of
the parties’ legal position in Qatar is anything but clear .
33. On 10 February 2024, t he office of the Family Advocate delivered a report on
the necessity and terms of a mirror order , since Qatar is not a signatory of the
Hague Convention on 10 February 2024. It was recommended that the issues
set down for hearing on 12 February 2024 should stand over until more
information was available regarding the enforceability of orders in Qatar . It
was further recommended that contact only takes places in South Africa in the
interim.
34. On 23 February 2024, the respondent’s application for permission to take L[...]
to Qatar at any time prior to the hearing on 5 June 2024 in the absence of a
mirror order was dismissed.
35. Dr Martalas conducted a follow -up assessment , and in a report compiled in
November 2024 she criticised both parents for the ongoing acrimony of w hich
L[...] is acutely aware, and their inability to accept responsibility for their roles
in the current levels of acrimony.
36. Dr Martalas dealt with L[...]’s “voice ”, that is, the expression of his views and
wishes, which included feedback from his th erapist, Ms Coetzee , and his
teacher, stating that he is coping well at school but now also has a tutor which
has given him more confidence. At school he often refers to Qatar but does
not talk about going back there. He has made friends at school and at
Scouts. A smash -and-grab incident that occurred soon after his arrival in
South Africa had a lasting impression on L[...], and has made him feel un safe.
He does express positive views about his living conditions in a g ated
community whilst in the applicant’s care . Dr Martalas mentions that L[...] has
admitted to wanting to run away from home because his parents are fighting ,
and because the applicant “drives him mad”. According to Dr Martalas, L[...]
struggles with what he regards as the applicant’s controlling behaviour. L[...]
indicated that he wants to live with the respondent ; however , if the applicant
“could chill”, then he would want to live with her. He clearly rebelled against
the discipline enforced by the ap plicant.
37. Dr Martalas confirmed that her recommendations made in December 2023
remain, save that, if the respondent come s to Cape Town even on short
notice, his contact with L[...] should be given preference to other
arrangements, save where those involves school activities, medical or other
therapeutic interventions, in which case the respondent should be involved.
She made further recommendations relating to therapy for the parti es, L[...]’s
belongings (should he remain in Cape Town) and the facilitation of telephonic
and video contact between the respondent and L[...].
38. The respondent does not accept Dr Martalas’ recommendations. He is of the
view that she has given insuffic ient attention to various aspects, including
L[...]’s views, the fact that L[...] has resided in Doha for most of his life, the
social conditions in South Africa, and the applicant’s situation should she
return to Qatar to live and work there and thus enable L[...] to have equal
contact with both parents. There may be some merit in these and various of
the other aspects that the respondent raises but, as appears from what is set
out further below, I think that the overall and holistic approach taken by Dr
Martalas in her assessment of the situation is the better one.
Mr Terry Dowdall , clinical psychologis t
39. Dr Martalas was originally jointly appointed by the parties and provided a first
report, a subsequent affidavit, and an updated report. The respondent, not
being satisfied that the recommendations made by Dr Martalas served L[...]’s
best interests, employed the services of clinical psychologist, Mr Terry
Dowdall.
40. Mr Dowdall delivered a report on 11 July 2024. His recommendation, after
visiting the respondent in Doha (in L[...]’s absence) and conducting a care and
contact invest igation and psychometric testing with L[...], was that “L[...]
should remain in his mother’s primary care in the Western Cape for the next
four years until June 2028.” Thereafter there should be a presumption that
L[...], in conjunction with the Parent Plan Manager, can complete his high
school in Doha, beginning in the first year of high school in September 2028,
unless there are compelling reasons to the contrary.
41. Whilst L[...] is living primarily in South Africa, he should be permitted one of
the short vacations with the applicant, and up to 70% of the remaining school
holidays with the respondent. Contact should be able to be exercised in South
Africa, Doha ,11 and any other country that is a signatory to the Hague
Convention. Legal provisions including mirror orders should be put in place
where appropriate, to safeguard L[...] against any irregular retention. M r
Dowdall recommends private telephonic and video calls between L[...] and the
11 Qatar is not a signatory to the Hague Convention.
respondent on four days per week.
42. These recommendations are made notwithstanding that L[...] during two
private session s with Mr Dowdall indicate d that he would prefer to b e in Doha
with his father . Although L[...] was careful mostly not to compare his parents,
his closer affinity has been developed with the respondent . Mr Dowdall also
detail s L[...] complaining about the applicant lying to him in various ways,
saying that if his dad takes him out of the country, he will never see the
applicant again, the applicant saying that the respondent is breaking the rules,
saying that he will be arrested, telling L[...] all these lies to make him stay
here, generally expressing that he does not like his life which is “messed up”
and “not fair”. According to Mr Dowdall, pursuant to certain tests that were
administered L[...]’s position has not changed in that his primary affiliation is
with his father , to some extent because he experiences the respondent as the
more “fun” parent .
43. Although cautious about labelling the applicant a gate -keeper, Mr Dowdall
mentions that the situation where one parent arrives from another country to
visit for a few days only to that find playdates, extra -mural events, non -urgent
medical appointments, or something else has been inserted into the space in
such a way as to erode time with the child, is concerning. That this has
happened on occasion cannot be denied. The applicant provides
explanations, but the situation is of course not satisfactory. It does, however,
appear from the papers that the respondent has had ample contact with L[...],
and that time that may have been lost on one occasion was made up on
another.
44. On balance, however, L[...] experience s living in the applicant’s care in a
broad ly positive way. According to Mr Dowdall, the overall pi cture regarding
L[...]’s emotional connection with each of his parents shows that L[...] has a
close underlying bond with both parents . He concludes that both parties are
“good enough parents” (the normative standard), and they are both invested
in L[...]’s life and his future.
45. Mr Dowdall regarded it as important that the family environment in which L[...]
grew up in Doha no longer exists. At this time, he is of the view that the loss
of the underlying structure that the applicant is experienced in providing would
be prejudicial to L[...]. The respondent has an issue with availability in his ten -
day alteri ng work cycle, has a challenging job with a high workload, high
stakes and high stress, and his natural inclination would often be to do so
something convivial with L[...] rather than managing homework or keeping to
functional routines. Life with the appl icant, on the other hand, provides much -
needed routine and structure.
46. The respondent d oes not accept Mr Dowdall’s recommendation, and insist s
that L[...] should be returned to Doha pending the determination of the divorce
action. He states that Mr Dowdall failed to attach sufficient weight to a
number of facts and factors , including the fact that L[...] grew up in Doha and
has formed a clear attachment with the environment , that he expressed the
preference to be with his father rather than his mother (who is the stricter
parent), and the issues of safety, living in a first -world country rather than a
third-world country, access to other countries and travel, free schooling , and
free medical care.
Ms Thea Coetzee , educational psychologist
47. Ms Coetzee was not briefed to give an opinion on where L[...] should reside
pending the finalisation of the parties’ divorce. She is, howe ver, a qualified
educational phycologist, and has been L[...]’s therapist since his a rrival in
Cape Town.
48. Ms Coetzee provided a feedback report on 28 November 2024 due to her
concerns regarding the respondent’s insistence that L[...] should be returned
to Doha and live with him . She remarks:12
“I am concerned that L[...]’s opinions are not always his own, and are
12 The emphasis is the Court’s.
influenced by Mr K[...], as L[...] has indicated to me before his interaction with
some of the professionals, that he knows exactly what he is going to say. I am
therefore concerned that he has been “coached” before each of his sessions
to indicate that he wants to remain in the care of hi s father. It is clear from
objective drawings, therapeutic exercises and general, casual conversation in
L[...]’s therapy session that he is in fact very happy in South Africa with his
mother, in the house that they share, with his 2 dogs. He has many frie nds in
school, also at his scouts and friends that he has made that are children of his
mother’s friends. He speaks of happy outings to the beach, shopping and his
grandparents. His views that he then voices to the professionals are the
complete opposite o f the picture that is constituted in his therapy sessions,
and the question can therefore legitimately be asked whether it is L[...]’s own
opinions that are voiced, or those of his father. Up to the middle of October
2024, L[...] had daily telephone conver sations with his father, therefore daily
contact was taking place wherein L[...] could be influenced. ”
49. The respondent is critical about the fact that Ms Coetzee provided a report at
all, saying that in so doing she acted outside of her mandate. It appears from
the Family Advocate’s report that the respondent views Ms Coetzee’s report
as biased and one -sided . It is so that Ms Coetzee was not tasked with
furnishing an opinion to this Cou rt in relation to where L[...] should reside in
the interim. I do however not regard her input as attempting to do this. She
places on record her observations of L[...]’s conduct and conversations during
sessions , and one cannot brush her concerns aside. The Court was referred
during argument to an example of the respondent’s alleged “coaching” of
L[...], press ing L[...] to state that he would prefer to live in Doha with the
respondent . I get the impression that some pressure is probably also being
applied by the applicant and her family, given the current ill -feeling between
the parties. The situation is concerning, especially as L[...] clearly feels guilty
and conflicted. He regards the parties’ divorce as his fault. It does not help
that the parties’ families on both sides seem to take an active part in the
battle, and thus that L[...] relationship with his grandparents on either side is
also being compromised.
Dr David Swingler , psychiatrist
50. Dr Swingler’s involvement shone light on the parties’ relationship at present
rather than on where L[...] is better off in the interim. The applicant has
throughout the application raised concerns regarding the respondent’s
psychological health, describing him as sometimes “zoning out”, stating that it
looks as if he is in a trance, and that he sometimes becomes unresponsive ,
implying that L[...] would be unsafe in his presence . The issue was raised in
correspondence between the parties’ attorneys, and Dr Martalas referred in
her report to the applicant‘s expressed concerns
51. Dr Swingler was accordingly appointed to assess the situati on. He points out
that the applicant and her family allege mental illness on the respondent’s
part, but that there is no other credible evidence to support this notion. The
witnesses to the respondent’s alleged illness the respondent’s co -workers,
persons at his c hurch , and his housekeeper have never done so. None of the
experts (Mr Dowdall, Dr Martalas, or the office of the Family Advocate)
conducting assessments have witnessed this.
52. Dr Swingler states that it is highly unlikely that the respondent w ould have an
eighth -year accident -free driving record in Doha, or the career trajectory that
he has had in a highly stressful work environment, were he experiencing
seizures. He expressed the view that further investigation into this issue
would be expens ive, delaying proceedings and add ing nothing apart from the
risk of muddying the waters.
53. It follows that no weight is to be attached to the applicant’s expressed fears in
relation to the respondent’s mental status insofar his capability to care for L[...]
is concerned. I have already mentioned that the parties – flaws and all – are
both good parents. At present, however, they are so frustrated with each
other that every tiny imperfection is blown out of proportion. They are both
guilty of this. One can only hope that they realise sooner rather than later that
the intense animosity between them is harmful to L[...]. I have already
mentioned that Dr Martalas, too, has raised serious concerns about the
damage the parties are causing to L[...] in involving him in their conflict.
The Family Advocate ’s office13
54. On 11 December 2024, t he Family Advocate ’s office delivered their reports.
Mr Oersen of that office recommended, after meeting with L[...] on two
occasions , that L[...] should be placed in the care of his father in Qatar . He
recommended further that the applicant should enjoy reasonable contact with
L[...], that a mirror order should be obtained within three months after
judgment,14 and that the primary care position of L[...] should be reviewed by
the Family Advocate in January 2026.
55. Notwithstanding both Dr Martalas and Mr Dowdall recommending that at least
in the interim L[...] should remain living in Cape Town, the respondent
believes that their recommendations do not serve L[...]’s best interests. He
therefore seeks relief in accordance with the Family Advocate’s report.
56. Having considered the report, however, I agree wit h counsel for the
applicant’s submission that t he recommendations contained therein – in
particular to the effect that L[...] should return to Doha in the interim - cannot
be accepted as being in L[...]’s best interests. Various concerns arise in
relation to the report.
57. Mr Oersen spent just over two hours with L[...] and his family , unlike the other
experts who had spent considerably more time getting to know the stage and
the cast of characters. It appears f rom Mr Oersen’s report that he did, for
example, not know where L[...] and his family lived, but relied simply on what
L[...] had told him in this respec t – which was incorrect.15
13 In Soller NO v G and another 2003 (5) SA 430 (W) para 22 the purpose and role of the office
of the Family Advocate is described as follows: “.. the Family Advocate, as required by
legislation, reports to the court on the facts which are found to exist and makes
recommendations based on professional experience. I n so doing the Family Advocate acts as
an advisor to the court and perhaps as a mediator between the family who has been
investigated and the court. ”
14 The report refers to “this dispute”, which I understand to mean the present application.
15 It appears that L[...] told Mr Oerson that he and the applicant lived with L[...]’s maternal
grandparents, which was not the case by the time the Family Advocate’s office was
58. He relied on information provided to him by the respondent without obtaining
the applicant’s response to the allegations made a gainst her and her family .
This related , for example, to allegation s that the applicant had “ unilaterally ”
removed L[...] from the respondent’s care, and that the applicant had an
attitude “ not to promote and facilitate contact ” between the respondent and
L[...]. A particular concern was raised about the attitude of the applicant in
making contact between L[...] and the respondent difficult, but this was not
addressed with the applicant hers elf. In this regard and in relation to L[...]’s
relationship with the respondent, Mr Oersen did not consider that the
respondent and his family have had ample access to and contact with L[...]
since the latter ’s return to South Africa, and that L[...] and the respondent
have managed to retain a very strong bond despite the physical distance .
59. According to the Family Advocate’s office, L[...] will benefit from being allowed
to return to Doha to reside with th e respondent as he will be given the
opportunity to continue with the lifestyle he was accustomed to before having
been removed therefrom. L[...] will return to a familiar home, school and social
network, and will have continuity in his education by resumi ng his education at
his previous school, minimising a disruption in his academic progress. He will
enjoy social benefits by being able to reconnect with friends and peers. The
problem with this approach is the specific school and social structures that
L[...] left in July 2023 are no longer in place as far as he is concerned. Too
much time has passed. He will not be able automatically to resume life as he
knew it there. The idea is a welcoming one, but the practical reality is
different.
60. Mr Oersen did not contact L[...]’s teachers, his friends, or his therapist, Ms
Coetzee , to obtain their views. It is unclear whether he considered that the
other experts all raised their concerns that L[...]’s tells untruths, and that he
vacillates as to where he wants reside because he is caught in the middle of
the parties’ unpleasant ongoing litigation. Notably, Mr Oersen seems to have
conducting its investigation.
given little consideration to the fact that both Ms Martalas and Mr Dowdall
found that L[...]’s expressed wish (which changes from to time) to live in Doha
cannot be the determining factor , as he is caught in the middle of the conflict ,
and has told untruths on various occasions. In fact, t he Family Advocate’s
report plac es great emphasis on L[...]’s wish to reside with his father.
61. L[...]’s preferences must of course be considered. Section 10 of the
Children’s Act 38 of 2005 provides as follows: “Every child that is of such an
age, maturity and stage of development as to be able to participate in any
matter concerning that child has the right to participate in an appropriate way
and views expressed by the child must be given due consideration .”
62. Section 31(1)(a) of the Children’s Act states , in turn : “Before a person holding
parental responsibilities and rights in respect of a child takes any decision
contemplated in paragraph (b)16 involving the child, that person must give due
consideration to any views and wishes expressed by the child, bearing in
mind the child’s age, maturity and stage of developme nt”.
63. These provisions envisage that children should not only be listened to but also
given an opportunity to participate in proceedings which affect them. The
question that arises is what weight17 is to be attached to the concept of the
voice of the child , and how to incorporate a child’s stated preferences when
deciding issues pertaining to such child. A further issue is how a child’s voice
should be ascertained and recorded to enable the court to make decisions in
its capacity as upper guardian of the child . Where minor children are
16 Section 31(1)(b): provides that: “ A decision referred to in paragraph (a) is any decision -
(i) in connection with a matter listed in section 18 (3) (c);
(ii) affecting contact between the child and a co -holder of parental responsibilities and
rights;
(iii) regarding the assignment of guardianship or care in respect of the child to another
person in terms of section 27; or
(iv) which is likely to significantly change, or to have an adverse effect on, the child's
living conditions, education, health, personal relations with a parent or family member
or, generally, the child's well -being. ”
17 Generally accepted factors to consider when measuring the weight to be attached to the
expressed wishes of a child include the age and maturity of the child, the capacity of the child
to make reasoned decisions, the level of intellectual and emotional func tioning of the child,
the nature of the child’s relationship with each parent, and whether the child is vulnerable to
parental pressures.
concerned , their voices are usually placed before the court by their parents,
third parties such as social workers or therapists appointed by one or both of
their parents, by way of the appointment of legal practitioners in terms of
section 29(6) of the Children’s Act, by the appointment of curator s ad litem in
the High Court , or by way of expert assessments. The fact s of every matter
concerning the well -being of children are different , and the views and wishes
of the children who are involved are necessarily influe nced by those varied
circumstances .18
64. In th e present matter the Court has the benefit of experienced expert
witnesses who ha ve conducted thorough investigations , and ha ve heard and
observed L[...] over an extended period. Dr Martalas, Mr Dowdall , and Ms
Coetzee indicate that reliance, for various reasons, cannot be placed upon
what L[...] reports as his wish , namely to stay with his father . I have referred
to some of the concerns raised. L[...] has, for example, taken to telling the
parties what he thinks they want to hear. He gets angry with the applicant for
being strict with him. The context of his situation as a whole needs to be
considered. Dr Martalas and Mr Dowdall are both of the view that L[...] shoul d
remain in the care of his mother in South Africa (to that, one adds the
observations of Ms Coetzee, L[...]’s therapist, who has spent much time with
him). T hese experts cannot be criticised as being biased , as Dr Martalas was
a joint appointment propose d by the respondent , and Mr Dowdall was
appointed by the respondent himself after he had refused to accept Dr
Martalas’ recommendations.
65. L[...]’s emotional and phycological state is clearly fragile at present. I am
inclined to accept the recommendations by Dr Martalas and Mr Dowdall to the
effect that L[...] should remain in South Africa pending the finalisation of the
divorce action, despite the respondent’s contentions to the contrary.
Returning him to Doha would mean that he would have to reside there without
his mother, who is his primary caregiver, and without the constant support of
18 The High Court has, for that reason, wide powers to call for and obtain relevant information to
enable it to exercise its discretion, without being hamstrung by stringent rules in matters
concerning the best interest of minor children: Terblanche v Terblan che 1992 (1) SA 501 (W)
at 504C .
his father, who works hard and for long hours, in a compoun d with a
caregiver, whilst there is a dispute regarding his relocation which can only be
determined by a trial court. Depending on what the trial court decides, L[...]
might have to be returned to South Africa again in a few months’ time. L[...] is
in a safe and loving environment in South Africa, despite the social and
economic issues difficulties that may exist here as opposed to Qatar.
66. It cannot be ignored that life as L[...] knew it in Qatar no longer exists for him.
Considering Ms Coetzee’s inp ut, L[...] is happy at school, takes part in
extramural activities, and have made friends. Stability in the interim would
probably be more valuable to L[...]’s well -being than passing him from the
applicant to the respondent for an interim period now that he seems to have
settled somewhat in his not -so-new environment .
67. Whilst the office of the Family Advocate often play an important role in family
law matters, their resources are limited. As indicated, Mr Oersen spent le ss
than 3 hours with this family. He conducted no investigations, and did not
consult with the professionals already on board. In these circumstances, it is
hard to understand on what basis he could have come to a different opinion
than that stated by the experts. He tenders no explanation for this in his
report. I am, in the circumstances, not inclined to follow his recommendation.
68. I did consider having a conversation with L[...] to hear what his views were in
respect of the situation. Having thoug ht about it, however, I considered that
L[...] had been subjected to repeated assessments over the past months , to
the point where he was clearly exasperated by the situation . His views are on
record. It would be unfair to subject him to yet another inte rview where he
might feel yet again feel that he had to choose between his parents.
Contact pending the finalisation of the divorce action
69. The office of the Family Advocate previously recommended that the issue of
whether contact between Logal and the respondent should take place in
Qatar , and the enforceability of this Court’s orders in Qatar , stand over until it
has been properly investigated. In light thereof that Qatar is not a party to the
Hague Convention, the obtaining of a mirror order is recommended, as it will
provide additional security for L[...]’s prompt return to South Africa at the
designated time. The Family Advocate further recomm ended that pending the
Court’s determination o f these issues, the respondent’s contact with L[...]
should be exercised in South Africa.
70. The applicant believes that the respondent will retain L[...] in Qatar if he is
allowed to exercise contact there . The respondent has, on the applicant’s
version, threatened on various occasions that L[...] will not be return ed to
South Africa . The respondent still regards Qatar as L[...]’s place of habitual
residence , and is adamant that it is in L[...]’s best interest to live in Qatar,
without his mother, to whom he offers contact over holiday period . He says
that the applicant was not in all respects primarily responsible for L[...]’s care
while the parties were cohabitin g, given the presence of Ms D[...] , the
housekeeper. L[...] would therefore not be so significantly impacted by a
separation from his mother. Dr Martalas reports, however, that Ms D[...]
informed her that she, as housekeeper, attended to limited care dut ies as far
as L[...] was concerned. The applicant did the lion’s share.
71. If the respondent does retain L[...] in Qatar, the likelihood of the applicant
being able to secure his return is slim . She does not have sufficient funds
(even though she has in the meantime secured employment in South Africa) ,
and she no longer has a residency permit for Qatar. It seems from the parties’
endeavours as set out in the papers that is very difficult to obtain the relevant
legal advice and ass istance in Qatar itself. As matters stand, no one knows
what must be stated in the mirror or similar order to make it enforceable in
Qatar and how the applicant can enforce it in a Qatari court, and at what cost.
The respondent has also made enquiries ther e, but has not divulged what he
has learnt. It seems that he is himself not daunted by the possibility of
litigation there: in his answering affidavit that “ Had I wanted to have Shariah
law implemented, I would have approached the court s in Doha when it first
became apparent a divorce action was inevitable ”.
72. The respondent submits that the applicant’s fears that he will retain the minor
child are unreasonable. Dr Martalas, Mr Dowdall , and the office of the Family
Advocate ha ve never theless all recommended that mirror or similar orders be
put in place prior to any contact being exercised outside South Africa. No
such order is currently in place .
73. I agree with the applicant that t here are risks involved in allowing the
respondent to take L[...] to Qatar for contact. As indicated, the respondent
believes that Qatar is L[...]’s place of habitual residency. There does not
appear to be strong ties between the respondent and South Africa - there is a
dispute regarding the respondent’s relationship with his family in South Africa .
According to the applicant they have never been close , and have hardly
played any role in the lives of the parties or L[...] over the years . The value of
the assets jointly owned by the parties in South Africa is negligible in
comparison with the respondent’s gratuity fund and income in Qatar. The
applicant’s accrual claim in the divorce action potentially amount s to the bulk
of the value of the assets in South Arica.
74. Parental child abduction is real and well documented , and provisions t he
Hague Convention on the Civil Aspects of International Child Abduction,
198019 are now incorporated in the Children’s Ac t. It is common cause that
Qatar is not a contracting party to the Hague Convention , and no order is in
place in Qatar. Although the respondent has consented to the jurisdiction of
this Court for purposes of the divorce action, he persists t hat Qatar is L[...]’s
place of habitual residence. The jurisdictional factor of “habitual residence” is
undefined in the Convention , and must be determined on the facts of every
matter.20 The respondent may well argue, once L[...] is in Qatar, that he
should remain there as it is his habitual place of residence. The respondent
earns a good income in Doha whilst the a pplicant was unemployed for nine
years. She is reliant on the respondent for maintenance. She litigates with the
19 The principal objects of the Hague Convention, as set out in Article 1 thereof, are to secure
the promp t return of children wrongfully removed to or retained in any contracting state and to
ensure that rights of custody and of access under the law of one contracting state are
effectively respected in the other contracting state.
20 Senior Family Advocate, Cape Town v Houtman 2004 (6) SA 274 (C) para 11.
assistance of loans from her family. The respondent knows that the applicant
does not have the funds to litigate in Qatar.
75. There is of co urse no crystal ball to predict that the respondent would in fact
be irresponsible by ignoring the parties’ arrangements, whether inter se or by
court order, once he has L[...] with him in Qatar. The current relationship
between the parties (with the families on each “side”) is however exceedingly
strained, bordering at times on childishnes s. When confronted , for example,
with the applicant’s sister’s statement under oath that L[...] advised her th at
the respondent had told him that he (L[...]) would never have to return to
South Africa, the respondent replie d that she had lied as she still holds a
grudge against him because he did not respond to her advances 18 years
ago. I am of the view that all owing L[...] to leave South Africa in the interim in
these circumstances and in the absence of a mirror order in Qatar would be to
light a match next to a box of fireworks.
Conclusion
76. I am, in the circumstances, of the view that the interim position as it has
pertained since July 2023 should remain pending the determination of the
parties’ divorce action. This is preferable to a return to Doha which might be
eventually again be undone by the trial court . There is no ordinary onus in
matters where children are concerned and I have therefore considered the
papers holistically.21 The parties cannot live together, an d they seem unable
to communicate with each other, but they share a child to whom they are both
devoted. In my view, the focus in this application should shift from the
ongoing disputes between the applicant and the respondent, with which the
papers are r eplete, to what is in L[...]’s best interests. The Court is assisted in
this regard by the expert reports obtained by the parties.
21 See C v P [2008] ZAGPHC 258 (21 August 2008) at para [9]: “The incapacity or otherwise of
a parent litigant to discharge an evidentiary onus should not be conclusive as to what may or
may not be in the best interests of the child. …. What is required is that the court acquires an
overall impression and brings a fair mind to the facts set up by the parties. The relevant facts,
opinions and circumstances must be assessed in a balanced fashion and the court must
render a finding of mixed fact and opinion, in the final analysis a structured value judgment,
about what i t considers will be in the best interests of the child. ”
77. The applicant, as L[...]’s mother, co -guardian and holder of parental rights and
responsibilities , has always been L[...]’s primary caregiver , given that the
respondent was and is the primary breadwinner, employed in a n admittedly
stressful and taxing position. Given the reports o f Dr Martalas, Mr Dowdall ,
and Ms Coetzee, there can be no doubt that to order L[...]’s return to Doha in
the interim , separating him from his mother, school, friends, family, pets, and
therapist, and given his fragile emotional state, would be irresponsib le. This is
not because the respondent is not a good father, but rather because on the
evidence a semblance of stability for the moment is better for L[...] than an
upheaval now and perhaps again in the future when the divorce action is
finalised.
78. As to contact, I intend accepting Dr Martalas’ suggested recommendation that
the respondent spend 70% of L[...]’s holidays with him, in South Africa. Once
there is a mirror order in place, th is issue of whether L[...] may travel to Doha
for contact with the respondent may be revisited – this is after all an interim
arrangement .
79. The parties have each provided me with a suggested draft order. I have
considered both drafts, and set out below the order finally handed down.
Costs
80. It is trite that, as a general rule, the party who succeeds should be awarded
costs. With regard to costs in matters involving the interests of min or children,
it has been held that where both parties are of the view that their contention is
correct and what they wanted to do was in the interest of the child, the court
will not easily award costs to one of the parties.22
81. The issue of costs was hotly disputed, with the applicant - who was admittedly
successful with the relief sought in the application – seeks punitive a costs
22 See AC v KC [2008] ZAGPHC 36 9 (16 June 2008) para 16.
order against the respondent . The applicant argues that the various
postponements (save for the postponement on 12 December 2024) leading
up to the final argument of the application were all caused by the respondent
not accepting th e recommendations of the experts recommended and
appointed by him. He refused the settle the litigation despite the
recommendations of Dr Martalas, Mr Dowdall and Ms Coetzee, and persisted,
at great cost to the applicant and L[...], with this interim liti gation over a period
of almost two years .
82. I agree that the respondent has shown a “winning at any cost” attitude, no
doubt borne of the animosity that exists between him and the applicant at this
stage. I cannot, however, find that he is uncaring as far as L[...] is concerned
– it seems that the respondent is genuinely, if misguidedly, of the view that
L[...] would be better off in Doha in the interim. I am therefore not inclined to
grant costs on a punitive scale.
83. I do think that the respondent should nevertheless bear the costs of the
application (excluding the costs of the postponement on 12 December 2024)
on the sca le as between party and party . The parties both employed senior
junior counsel , and the matter is of great importance to them. In the exercise
of my discretion under Rule 67A I intend directing that counsel’s fees be taxed
on Scale C.
Order
84. In the circumstances , I grant the following order:
1. The minor child, L[...] K[...] (“L[...]”), shall remain in the care of the applicant
and within the jurisdiction of this Court, pending the outcome of the divorce
action instituted under case number 11407/2023.
2. The respondent shall, pending the finalisation of the divorce action, have
contact with L[...] in South Africa, as follows:
a. For 70 % of every school holiday .
b. Whenever the respondent is able to travel to Cape Town even on short
notice ( save that it shall not be not less than 72 hours’ notice) during
school terms, he shall be entitled to exercise reasonable contact with
L[...], which should be given preference to other arrangements save in
respect of school and sport activities in which L[...] partake , and
scheduled therapy sessions, in which case the respondent shall be
entitled to be involved in such activities. In the event of the applicant
giving the respondent at least 14 days’ notice of her intended plans to
go away with L[...] (provided that he has not already given notice of an
intended visit), the respondent’s contact shall not get preference above
such arrangement, provided further that the applicant shall not be
entitled to raise such plans as a bar to contact on short notice to the
responden t more than once a month .
c. The respondent shall be entitled to exercise regular Skype / electronic /
face time contact with L[...], four times a week on Tuesdays,
Thursdays , Saturdays, and Sundays between 19h00 and 19h30 (or
such other time as may be ag reed between them) , which contact shall
be exercised unsupervised (the applicant shall be entitled to exercise
contact on the same basis when L[...] is with the respondent).
3. In the event of the parties being unable to reach agreement regarding dates
and times pertaining to the respondent’s contact, such dispute shall be
referred for mediation.
4. The respondent is ordered to pay the costs of the applicant in this application ,
including the costs of the respondent’s counter -application and the
postponements on 7 December 2023 and 7 February 2024 on the scale as
between party and party, with counsel’s fees to be taxed on Scale C . No
order is made as to the costs of the postpone ment on 12 December 2024.
____________________
P. S. VAN ZYL
Acting Judge of the High Court
Appearances:
For the applicant : Ms A. de Wet, instructed by Brand &
Robberts Attorneys
For the respondent : Ms A. Heese , instructed b y Bill Tolken
Hendrikse Incorporated