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 IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE, CAPE TOWN)

Case no: A139/2024

In the matter between:

M[...] D[...] P[...] Appellant

and

W[...] T[...] P[...] First Respondent

P[...]: W[...] T[...] Second Respondent
(as father and guardian of
the minor child C[...] P[...]

Heard: 22 January 2025 (final submissions filed by the parties on 5 May
2025)
Delivered: 17 July 2025
Coram: Ndita, Savage and Mangcu-Lockwood JJ


JUDGMENT
THE COURT

Introduction

[1] This appeal, with the leave of the Supreme Court of Appeal (SCA), is against
the order of Van Zyl AJ made o n 2 May 2023 in terms of which the primary
residence of the parties’ minor son (the child) born on 26 April 2020 was
shared between them, with a detailed contact regime ordered.

[2] The appellant , M[...] P[...], appeals against the order seeking its variation to
provide for the child to be primarily resident with her, subject to a different
contact regime granted in favour of the respondent, W...] P[...]. The
respondent opposes the appeal on the basis that no appeal lies against the
order which was of an interim nature; the court exercised its wide discretion
properly and judicially and came to a well-reasoned decision which serves the
best interest of the child; th e court did not misdirect itself in relation to the
facts, the law or the application of the law to the facts; and even if the merits
were to be considered afresh on appeal, the appeal falls to be dismissed.

Relevant background

[3] The parties were married on 26 October 2017 and a t the time of their
separation they were resident in Knysna in the Western Cape. The appellant,
a geneticist who obtained a PhD in 2016, owned the farm in Knysna on which
they resided from October 2018.

[4] On 21 September 2021 the appellant left the matrimonial home with the child
and moved to live in a flatlet on a neighbour ing farm. Following their
separation, the respondent , a qualified engineer who worked from home ,
planned his work schedule around his contact with the child in Knysna. Most
days he would see the child for lunch and then again at bath -time, with
weekend sleep -over contact limited to one night per week given the
appellant’s concerns about the impact this had on the child.

[5] The relationship between the parties at the time was marked by high levels of
conflict. On 26 October 2021 the respondent was served with an interim
protection order, which the appellant subsequently withdrew. In that
application the appellant accused the respondent of domestic violence . The
respondent opposed the matter and vehemently denied the allegations . In
opposing that matter h e stated that the appellant had sustained a head injury
in a motor vehicle accident in 2006 for which s he was paid out a “significant
sum” by the Road Accident Fund. Consequent to this injury, he claimed that
the appellant experienced episodes of anger and violence, sometimes acted
irrationality, and took medication, which she later stopped taking, and worked
with psychologist to address her anger issues. A neuropsychological
assessment put up by the appellant found that she had no neurocognitive
difficulties, nor that she was unable to take good care of the child.

[6] The parties were assisted on 14 December 2021 by an educational
psychologist to reach an agreement on interim care and contact
arrangements. The respondent had contact with the child on Tuesdays and
alternating Saturdays and Sundays from 08h00 to 17h00 and from 16h30 on
Thursdays until 0 8h00 on Fridays. At this time t he appellant moved back to
the farm in Knysna when from 1 December 2021 the respondent moved to a
cottage on a farm in the Knysna vicinity.

[7] A follow up meeting with the educational psychologist was scheduled for 15
February 2 022. However, o n 21 January 2022 , without informing the
respondent or obtaining his consent, nor obtaining the consent of the Court,
the appellant took the unilateral decision to relocate with the child to Monzi in
KwaZulu-Natal where her family reside . The respondent only learnt of the
relocation on 27 January 2022. The effect of the child’s relocation was that the
appellant abandoned the agreement reached in December 2021 and the

appellant abandoned the agreement reached in December 2021 and the
respondent was unable to exercise contact with the child on the basis agreed.

[8] In response to the appellant’s unilateral relocation on 31 January 2022 the
respondent instituted urgent proceedings in the Western Cape High Court
seeking in Part A of such application that the appellant be directed to return

the child to Knysna within 24 hours and that care and interim contact be
granted to him on specified days in the week and over holidays. He sought
that a social worker be appointed in conjunction with the Family Advocate to
undertake an investigation into the matter and make reco mmendations to the
Court as to the care, contact and residency of the child. In Part B of his
application the respondent sought an order regulating his contact with the
child until the child was 3 years of age and then for the period after he turned
3, following expert recommendations having been obtained.

[9] The appellant opposed the application on 3 February 2022 . In doing so she
accepted that the respondent had bonded with the child, with who m he had a
close relationship, but stated that she remained the primary caregiver and the
child’s primary attachment figure, with the child still being breastfed and
sleeping in her bed. She accepted however that regular cont act between the
child and the respondent must be maintained f or the emotional and
developmental needs of the child to be met. In her counter -application the
appellant sought an order that as primary caregiver she be permitted to
relocate to Monzi and remain in KwaZulu -Natal with the child ; the
respondent’s contact w ith the child be determined once the reports by the
relevant experts had been filed ; and that a child psychologist be appointed to
report to the Court on care and contact arrangements in respect of the child .
The appellant proposed in the interim that cont act be granted to the
respondent one weekend a month, on alternative public holidays and that
daily video contact with the child be permitted , with the respondent to bear
responsibility for any travel costs.

[10] On 1 February 2022 , prior to her opposing the respondent’s urgent
application, the appellant instituted a divorce action in the Kwazulu -Natal High
Court against the respondent . The divorce action is opposed by the
respondent and remains pending.

respondent and remains pending.

[11] On 7 February 2022 Van Zyl AJ issued a rule nisi in terms of which it was
ordered that good cause be shown why the child’s primary place of residence
should not be shared between the parties , with the child to spend eleven

consecutive nights with the respondent from 26 April 2024 and then fourteen
consecutive nights from 26 October 2024 at the respondent’s residence in the
Western Cape. In addition the parties were ordered to appoint a child
psychologist or social worker to investigate, with the Family Advocate , and
report to the Court on care and contact arrangements in respect of the child .
The child’s primary caregiver remained in the interim the appellant, who was
permitted to reside with the child in Monzi in KwaZulu-Natal subject to the
respondent’s rights of reasonable contact. This contact included one weekend
a month, alternative public holidays, with holiday periods shared and daily
video contact. Travel costs were ordered to be paid by the respondent on an
interim basis.

[12] In response, the respondent sought direct access t o the Constitutional Court
for leave to appeal the interim order. That application was refused.

[13] Assessments regarding what care and contact arrangements were in the best
interests of the child were undertaken by Dr Karen Spurrier, a social worker in
private practice appointed by the respondent , and Mr Anthony Townsend, a
clinical psychologist appointed by the appellant. In addition, t he Family
Counsellor from the Family Advocate’s office interviewed the parties and
collateral sources.

[14] The Family Counsellor reported on 10 May 2022 that the child’s primary
attachment was to the appellant and that the relationship between the parties
was not conducive to co -parenting given the high levels of hostility and
acrimony between them and their inability to communicate. It was
recommended that the appellant be permitted to remain in Kwazulu -Natal,
subject to the respondent having reasonabl e contact every alternate
weekend, with the child to travel to Knysna every alternate weekend, daily
telephone or video co ntact, birthday, Christmas and new year contact shared
every alternate year. It was proposed that school holiday contact be regulated

every alternate year. It was proposed that school holiday contact be regulated
by way of a parenting plan once the child started formal schooling.

[15] Dr Spurrier proposed in her report dated 31 March 202 2 that a move towards
a 50/50 parenting plan when the child reached 3 years of age would be in the
child’s best interests, but that while the Court had permitted the appellant to
remain in KwaZulu -Natal as a temporary measure, this would not work as a
long-term solution without further intervention. She found it unrealistic to
require t he respondent to relocate to KwaZulu -Natal and proposed that a
move by the appellant to George in the Western Cape would be more in line
with the concept of parallel parenting and would allow the appellant access to
an airport to visit her family in KwaZulu-Natal.

[16] Mr Townsend in his report dated 5 September 2022 found the child’s primary
attachment figure to be the appellant and expressed the view that a shared
residence arrangement should be phased in to allow the child to sp end equal
amounts of time , up to a week at a time, with each parent. He proposed that
for this purpose the parties should take up residence in a “neutral” city where
both parties would be able to live and work, such as Pretoria or Stellenbosch
where both had previously lived and worked , which would allow the child
access to his maternal and paternal extended family members. Neither Dr
Spurrier nor Mr Townsend recommended that the parties share primary
residence of the child in two different provinces, with the child moving back
and forth between them.

[17] On 2 May 2023 Van Zyl AJ discharged the rule nisi issued on 7 February
2022 and ordered that the child’s primary place of residence should be shared
between the parties and that with effect from 26 April 2024, until the child
attained the age of 4½ years, that he spend eleven consecutive nights each
month with the respondent at his residence in the Western Cape and fourteen
consecutive nights from 26 October 2024. Van Zyl AJ dismissed the
application for leave to appeal against this order on the basis that it was not

application for leave to appeal against this order on the basis that it was not
appealable under section 16(3) of the Superior Court Act 10 of 201 3. On
petition the SCA granted leave to appeal the order to this Court.

[18] The appellant has since her relocation continued to reside with the child in
KwaZulu-Natal and the respondent has since relocated to Hermanus in the
Western Cape from where he travels to his work at Stellenbosch University.

[19] In the reasons subsequently given for the order made on 2 May 2023, Van AJ
noted that the marriage relationship between the parties was tumultuous and
that their cu rrent relationship remains strained and acrimonious. Extensive
and serious accusations were found to have been levelled by each party
against the other in relation to their marital relationship and conduct. It was
noted that the parties appear to be unable to communicate with each other,
but share the child to whom they are both devoted. Noting section 7 of the
Children’s Act 38 of 2005 and the best interests of the child standard, the
Court found that from the papers and the expert reports filed, it was apparent
that both parents “are more than capable parents”.

[20] The Court noted that the respondent was not opposed to the child remaining
in Monzi provided that he had equal time with the child. The appellant , who
the Court found relied heavily on the fact tha t she was still breastfeeding the
child, was unwilling to agree to a shared residency and sought that the
respondent move closer to Kwazulu -Natal where shared care could be
phased in with the assistance of a child psychologist.

[21] Mr Townsend, the Court noted, had been appointed by the appellant to report
to the Court because she considered Dr Spurrier to be biased. In spite of this,
the appellant did not accept Mr Townsend’s report, which also recommended
that the parties relocate to minimise the logisti cal difficulties and expense of
ensuring the respondent’s contact with the child. The Court recognised Mr
Townsend’s concern regarding the appellant’s anger towards the respondent.
This included her threat more than once that the respondent “will not see [the

This included her threat more than once that the respondent “will not see [the
child] if they divorce and if she does not get her way” ; that she could perhaps
find someone else and give the child a better model of a father; that “I don’t
know if we can be equal co -parents as there is more to [the child] than his
relationship with his father”. The Court noted that this led Mr Townsend to
state that the appellant “appears to be opposed to the [respondent] spending

more time with his son, even though she has indicated that she regards him
as being a good father”. The appellant was fo und by Mr Townsend to have
given the impression that she did not view contact between the child and the
respondent as important, but rather as an inconvenience to her. Mr Townsend
expressed concern that “the current care and contact arrangement is
financially unsustainable for both parents and extensive travel (both by plane
and by car) of several hours is required for visits. This must be adjusted as it
is lengthy and expensive”.

[22] As far as relocation and residency was concerned, the Court found that the
appellant had relocated with the child without consulting the respondent about
her plans and that this had impacted on the child’s contact with the
respondent. In spite of this, the Court accepted that the move was beneficial
to the appellant in that she was more settled, employed , surrounded by a
loving family structure and that this was beneficial to the child . The Court was
not persuaded that forcing a move b y the parties would necessarily result in a
better outcome for the child and that to order such a move may cause even
more resentment. The Court therefore found that the parties can share care
and contact with the child even though they do not live close t o each other ,
with a 50/50 shared residency arrangement to be phased in. This, it was
found, would minimise travel expenses and provide to homes for the child, as
recommended by the experts. It was ordered that a parenting coordinator be
appointed to resolve any logistical difficulties which arose.

Appealability of order

[23] The first issue that arises is th is matter relates to the respondent’s contention
that, in spite of leave to appeal having been granted on petition, the order of
the Court a quo is not appealable.

[24] Van Zyl AJ refused leave to appeal on the basi s that the order made was not
appealable under section 16(3) of the Superior Courts Act, 20131 in that it was

appealable under section 16(3) of the Superior Courts Act, 20131 in that it was

1 Act 10 of 2013.

susceptible to variation by the Court hearing the divorce action. This was so in
that the order granted was aimed at providing for the residency and contact
with the child on an interim basis, pending the conclusion of the divorce action
and that as such, it is pendente lite and was therefore not appealable.

[25] Section 16(3) provides that:

‘…no appeal lies from any judgment or order in proceedings in
connection with an application –
…(c ) for the interim custody of a child when a matrimonial
action between his or her parents is pending or about to
be instituted;
(d) by one parent against the other for interim access to a
child where a matrimonial action between the parents is
pending or about to be instituted.’

[26] The respondent contends that the order made concerns interim care and
contact and that given the provisions of section 16(3), it is not appealable.
However, since leave to appeal has been granted by the SCA in this matter,
this Court is constrained by that decision and it is not open to us to revisit the
issue. This is so in that by overturning Van Zyl AJ’s order to the effect that the
matter was not ap pealable, the SCA has effectively dealt with the issue of
appealability.

Van Zyl AJ order

[27] On 2 May 2023 Van Zyl AJ ordered that:

1. The rule nisi issued on 7 February 2022 and thereafter extended is
discharged;
2. The parties remain co -holders of parental responsibilities and rights to,
including guardianship of, the minor child;

3. The child’s primary residency shall be shared between the parties, to
be phased in, with the scheduling of contact and residency to be
undertaken in conjunction with a parenting coordinator, if necessary.
4. From 2 May 2023 until 25 October 2023:
4.1 the child will be in the care of the appellant, with the
respondent to exercise contact with the child one
weekend a month from Thursdays at 16h00 until
Mondays at 12h00;
4.2 this contact be exercise at the respondent’s home in
Hermanus, Western Cape;
4.3 the appellant or a third party agreed upon between the
parties will fly from Kwazulu -Natal to Cape Town with the
child;
4.4 the respondent will collect the child from Cape Town
airport, alternatively at a place agreed, in conjunction with
the parenting coordinator if necessary;
4.5 the appellant will make the necessary travel
arrangements to Cape Town, including purchasing airline
flights, rental car arrangements and accommodation;
4.6 the costs of travel will be shared by the parties.
5. From 26 October 2023 until 25 April 2024:
5.1 the chil d will be in the care of the appellant, with the
respondent to exercise contact with the child two
weekends per month from Thursdays at 16h00 until
Mondays at 12h00;
5.2 this contact be exercise at the respondent’s home in
Hermanus, Western Cape;
5.3 the parties are to be responsible, on an alternating basis,
to make the necessary travel arrangements;
5.4 the party responsible for such travel arrangements will be
liable to pay all such travel expenses, with the appellant
to be liable for travel expenses from M onzi to King Shaka
Airport;

5.5 the appellant or a third party agreed will accompany the
child from Kwazulu-Natal to Cape Town airport;
5.6 the respondent will collect the child from Cape Town
airport, alternatively at a place agreed, in conjunction with
the parenting coordinator if necessary;
6. From 26 April 2024 until 25 October 2024:
6.1 the child will spend 11 nights with the respondent from
Thursday at 16h00 until Monday at 12h00 of the following
week;
6.2 contact will be exercised the respondent’s place of
residence in Hermanus, in the Western Cape;
6.3 the appellant will take the child on Monday at 16h00 until
Tuesday at 09h00, when the child will be returned to the
respondent’s care and on Friday at 16h00 until Saturday
at 09h00 when the appellant will retur n the child to the
respondent’s care;
6.4 thereafter the contact in 6,1 will continue uninterruptedly;
6.5 The travel arrangements will alternate as follows:
6.5.1 for the first 11 -day period the appellant will travel
from King Shaka airport to Cape Town with the
child, where the child will be handed over to the
respondent;
6.5.2 the appellant will be liable to pay for the plane
tickets associated with this travel, with all other
travel expenses to be paid by the party incurring
such expense;
6.4.3 from th e second 11 -day period onwards, the
respondent or a third party nominated by him and
agreed between the parties, will fly from Cape
Town to King Shaka Airport to collect the child on
Thursdays at 16h00, with the respondent liable for
the costs of airline t ickets and other travel
expenses;

6.3.4 the appellant, or third party nominated by her and
agreed between the parties, will fly from King
Shaka to Cape Town to collect the child from the
respondent on Mondays at 12h00, with the
respondent liable for airlin e tickets and any other
travel expenses.
7. From 26 October 2024 onwards:
7.1 the child’s residency will be shared between the parties,
with the month divided with the child to spend 14 nights
with the respondent commencing on a Thursday at 16h00
until the second Thursday thereafter at 16h00;
7.2 the respondent or a third party nominated by him and
agreed between the parties will fly from Cape Town to
King Shaka airport to collect the child on Thursdays at
16h00, with the respondent liable for all travel costs;
7.3 the appellant or a third party nominated by her and
agreed between the parties will fly from King Shaka
airport to Cape Town to collect the child on Thursdays at
16h00, with the respondent liable for all travel costs, with
the appellant liable for all travel costs;
8. Each parent will be give right of first refusal if the other parent is unable to
be with the child for a period of longer than 48 hours. If the other parent is
not available, a suitable adult who is known and familiar to both parents
can be arranged to care for the child;
9. The child’s birthday will rotate between the parties, as agreed by them or
recommended by the parenting coordinator;
10. The child will spend Mothers’ and Fathers’ day, and each parent’s
birthday with the appellant or resp ondent respectively, if practical and
logistically possible.
11. Each parent will provide the other with details concerning planned
holidays;
12. The child will have daily video contact with the parent he is not with for 30
minutes on any particular day and shoul d be wish to contact the other
parent at any other time, he may do so;

13. The appellant will ensure that wifi/internet connection is installed at her
residence in Monzi within one month of the order and properly maintain it
to ensure that the respondent is able to contact the child in Monzi;
14. Contact with extended family is restricted to when the child in is the care
of the relevant parent;
15. The child will not be left unsupervised in the care of his maternal
grandfather given his diagnosis with Parkinson’s disease;
16. Each party will make decisions regarding the child’s day to day care and
control while in the child is in the care of that parent;
17. Bothy parties shall have joint -decision making powers regarding the
child’s religion, major medical interventions, educa tion and extra -mural
activities;
18. When the child reaches school -going age, the parties in conjunction with
the parenting coordinator will appoint an independent psychologist
agreed between them to conduct an investigation to determine the child’s
best interests in relation to the new stage of life;
19. All school holidays will be shared between the parties so that the child
spends equal time with the parties during each holiday. The scheduling of
the holidays will be undertaken in conjunction with the parenting
coordinator, if necessary, and be arranged to rotate Christmas, New Year
and Easter annually between the parties;
20. The parties shall have independent relationships with the child’s schools,
doctors, dentists and other professionals with whom the child has
relationships or interactions;
21. The parties may be present at school functions, meetings, concerts and
activities;
22. All contact provided will not interfere with the child’s educational activities
and attendance at school from the commencement of Grade R;
23. In the event that the parties cannot agree on the child’s schooling or any
issue relating to his residency at that stage, the parenting coordinator will
mediate the dispute between the parties, with either party entitled to

mediate the dispute between the parties, with either party entitled to
approach the Court for relief;
24. The parenting coordinator appointed, Dr Astrid Martalas, will be retained
to assist the parties with communication and issues which require

negotiation, mediation or decision -making such as regarding contact,
medical care and education of the child, with the pa renting coordinator
authorises to make directives binding on the parties until a Court orders
otherwise on identified issues. The parents are responsible for the costs
of the parenting coordinator;
25. The parents will commence, where applicable, and continue with
individual therapy and endeavour to ensure that their respective
interpersonal difficulties with each other are managed effectively to
ensure that the child’s best interests are upheld;
26. The child will receive play therapy, if necessary, from a counsel ling
psychologist agreed upon between the parties, with the assistance of the
parenting coordinator, the costs of which are to be borne by the parties
equally;
27. The parenting coordinator and the parties are entitled to feedback reports
from the child’s coun selling psychologist to obtain insight into the child’s
emotional and psychological position and development;
28. The costs of the services of the parenting coordinator shall be shared
between the parties equally;
29. Each party is to pay his or her own costs of t he application and the
counter-application.

Grounds of appeal

[28] The appellant appeals against the order inter alia that:

1. the child’s primary residency be shared between the parties, with this order to
be phased in with a parenting coordinator, if necessary;
2. contact arrangements ordered first until 25 October 2024;
3. contact arrangements ordered from 26 October 2024 onwards, including the
rotation of the child’s birthday
4. an investigation by an independent psychologist once the child reach es
school-going age, to determine the child’s best interests , with mediation by
the parenting co -ordinator of if the parties cannot agree on the child’s
schooling or any issue relating to his residency at that stage;

5. each party pay their own costs.

[29] The appellant seeks that the order of Van Zyl AJ be varied to provide that the
child’s primary place of residence is with the appellant in KwaZulu-Natal, with
the respondent to have contact with the child every alternate weekend,
alternating between the Western Cape and Kwaz ulu-Natal from Friday
afternoon to Monday morning.

[30] The appellant seeks that it be ordered that when the respondent has contact
with the child in Kwazulu-Natal, he book accommodation within or close to the
area in which the child resides and the costs of the accommodation be shared
by the parties; that the respondent be responsible for the costs of his travel
from the Western Cape to Kwazulu -Natal; that the appellant provide the
respondent with the use of a motor vehicle from when he arrives at the airport
on Friday afternoon until he returns to the airport on Monday morning; that the
respondent collect the child from school on Friday afternoon and return him to
school on Monday morning . When the respondent has contact with the child
in the Western Cape the appellant proposed that she will pay her own return
travel costs from Kwazulu -Natal to the Western Cape; that the parties share
equally the child’s travel costs and the appellant’s accommodation costs in the
Western Cape.

[31] The appellant seeks that it be ordered that Christmas and New Year contact
alternate between the parties annually, with contact on Fathers’ Day be
ordered from 09h00 to 17h00 and Mothers’ Day contact from 08h00 to 13h00;
and birthday contact to be shared. Each party should be entitled to daily video
contact with the child if he is not in their care between 17h30 and 20h00 . In
addition, June and December school holidays contact be alternated every
seven days from the age of 5 until the child is 7, every ten days until the age
of 9, every 14 days until the age of 11 and thereafter half of every holiday; and
that the April and September school holidays be shared.

that the April and September school holidays be shared.

Updated circumstances

[32] As was made clear in Terblanche v Terblanche,2 as upper guardian in
custody and related matters the High Court has wide powers to establish what
is in the best interests of minor children. It is not bound by procedural
strictures or by the limitations of the evidence presented or contentions
advanced b y the respective parties. It may have recourse to any source of
information, of whatever nature, which may be able to assist it in resolving
custody and related disputes. This requires that account be taken of relevant
factors and circumstances, both past and future, and the possibility of what
might happen in the future when making an order.3

[33] For this reason, following the hearing of this appeal, and given that almost two
years had elapsed since the order of Van Zyl AJ was made, this Court
requested that updated expert reports be filed by Mr Townsend and Dr
Spurrier so as to obtain insight into the current relevant circumstances of the
child and the parties. Following receipt of these updated reports, on 10 April
2025, a joint minute of the experts was requested.

[34] In the joint minute filed it was agreed by the experts that:

1. the child has emotionally bonded with both of his parents and he
desires and would benefit from more time with his father;
2. his paternal relationship is significant to him and should be further
developed to deepen his bond with his father in the child’s best
interests and the child shows no discomfort expressing his needs to
his father;
3. support by the appellant for the relationship between the respondent
and the child is not optimal;
4. both parents report and demonstrate significant difficulties with
effective coparenting in the best interest of the child and intervention
in this area is crucial;
5. both parents present with generally intact parenting ability, although
each demonstrates some vulnerabilities. There appears to be a mild

2 Terblanche v Terblanche 1992(1) SA 501 (W).

2 Terblanche v Terblanche 1992(1) SA 501 (W).
3 See for example P v P and another 2002 (6) SA 105 (N).

degree of enmeshment between the appellant and the child which
may lead to emotional confusion and potential diffic ulty for the child if
unaddressed and is attended to;
6. a curator ad litem be appointed until litigation is complete in the
child’s best interests and once the litigation is finalised a parenting
coordinator should be appointed to protect the child’s best interests;
7. a roughly 60/40 split in care and contact should be ordered. During
periods within the school term, it is recommended that the
respondent travel to Kwazulu -Natal and the child be in his care.
During school holiday periods, the child should travel to the
respondent for two thirds of the holiday period;
8. the child should be referred for play therapy;
9. the parents should have the right of first refusal to look after the child
is one is away, with early notification of planned trips crucial.

[35] A proposed contact schedule proposed by Dr Spurrier was attached to the
minute.

Parties’ responses to joint minute

[36] The Court provided both parties with the opportunity to comment on the
contents of the joint minute by 5 May 2025. From the responses received, it is
apparent that the parties agree that it is unnecessary and undesirable for a
curator ad litem to be appointed in that expert reports have detailed the
relevant issues in the best interest of the child, who is now 5 years old. The
parties agree however that a parenting co -ordinator should be appointed.
Detailed responses were received to the logistics of the contact arrangements
involving the child which indicate no agreement between the parties in this
regard.

Discussion

[37] When dealing with matters involving the minor children and their best
interests, the court must acquire an overall impression and bring a fair mind to

all of the relevant facts and circumstances which are r elevant to its
determination. All information obtained must be assessed in a
balanced manner in deciding what is in the best interests of the child. 4 The
paramountcy of the best interests of the child, protected by the Constituti on,5
must ultimately inform the decision of the court in a child-centred approach.6

[38] Our courts have noted the impact that divorce and separation has on children
which can be serious and risks causing lifelong consequences for children.
This is more so where parents display negative behaviours as part of a power
struggle which is often pla yed out in disputes concerning their children.
Parenting can be a challenging endeavour, even for the most constructive and
functional of parents. The different contributions that each parent bring to the
life of a child are very often invaluable to the gr owth and development of that
child. In families in which deep disputes have taken hold, the child is placed in
between warring factions, expected with limited life experience to manage the
challenges of how to avoid or try to overcome disputes from flaring up. This is
an invidious position in which to place a young child, yet disputing parents
very often appear to be immune to the realities of this or its impact.

[39] The Court a quo considered the expert reports, all of the relevant
circumstances of the parties and th ose of th e child, the child’s rights, needs
and development when adjudicating the application. As indicated, g iven the
lapse of time between the order of Van Zyl AJ and the hearing of the appeal,
updated exports reports were sought to allow this Court to be placed in a
position to consider the best interest of the child.

[40] In Coopers (South Africa)7 it was recognised by the Appellate Division that the
opinion of an expert represents a –


4 Cunningham v Pretorius [2008] ZAGPHC 258 (21 August 2008)
5 Section 28
6 S v M (Centre for Child Law as Amicus Curiae) 2008 (3) SA 232 (CC)

5 Section 28
6 S v M (Centre for Child Law as Amicus Curiae) 2008 (3) SA 232 (CC)
7 Coopers (South Africa) (Pty) Ltd v Deutsche Gesellschaft Für Schädlingsbekämpfing MBH 1976 (3)
SA 352 (A).

‘reasoned conclusion based on facts or data, whic h are either common
cause, or established [on] evidence, or that of some other competent
witness. Except possibly where it is not controverted, and expert’s bold
statement of his opinion is not of any real assistance. Proper evaluation
of the opinion can only be undertaken if the process of reasoning which
led to the conclusion, including the premise from which the reasoning
proceeds, are disclosed by the expert.’8

[41] In Michael and Another v Linksfield Park Clinic (Pty) Ltd and Another 9 the
SCA noted that in the evaluation of expert evidence the court must –

‘determine whether and to what extent their opinions advanced are
founded on logical reasoning and be satisfied t hat such opinion has a
logical basis, in other words that the expert has considered
comparative risks and benefits and has reached a defensible
conclusion.’

[42] If an expert opinion overlooks an obvious risk which could have been guarded
against it will not be reasonable, even if almost universally held; and an expert
opinion that is not capable of withstanding logical analysis cannot be
reasonable. While it will seldom be right to conclude that views genuinely held
by a competent expert are unreasonable , at the same time it would be wrong
to decide a case by simple preference where there are conflicting views on
either side, both capable of logical support. Only where expert opinion cannot
be logically supported at all will it fail to provide the benchmark required.10

[43] Having had regard to the relevant facts and circumstances before us in this
matter, we consider it appropriate to note at the outset our view that much of
the difficulty which has arisen in this matter is a direct consequence of the
Court a quo no t having ordered that the appellant return with the child to the

8 At 371A – H. See too Schneider v AA 2010 (5) SA 203 (WCC)mat 211E – 212B; Price Waterhouse

8 At 371A – H. See too Schneider v AA 2010 (5) SA 203 (WCC)mat 211E – 212B; Price Waterhouse
Coopers Inc and Others v National Co -operative Limited and Another [2015] 2 All SA 403 at para
99; AM and Another v MEC for Health, Western Cape 2021 (3) SA 337 (SCA) at para 21.
9 Michael and Another v Linksfield Park Clinic (Pty) Ltd and Another 2011 (3) SA 1188(SCA) paras 37
– 40.
10 At para 39.

Western Cape when faced with the urgent application of the respondent that
she do so. The appellant acted unilaterally and without regard to the rights of
both the respondent and the child w hen, without having obtained the consent
of the respondent or the Court , she moved with the child to the opposite side
of the country. While her move was motivated by the fact that her family
resides there and her relationship with the respondent had broken down , it
cannot be overlooked that this unilateral step occurred in circumstances in
which the appellant was aware that this would place enormous difficulties on
the respondent being able to maintain regular and meaningful contact with the
child and that it would have a direct impact on the child . The appellant’s
criticisms of the respondent and her suggestions that his role as father could
be replaced, which she reported to Mr Townsend, bear out her blatant
disregard for the serious ness of her conduct and its consequences for both
the child and the respondent.

[44] In this appeal the appellant seeks that the order of shared residence imposed
by Van Zyl AJ on the recommendation of the experts be varied to provide that
the child reside primarily with her. Having regard to the views of the experts
and the relevant facts and circumstances of this matter, we are not persuaded
that such a variation of the order is warranted at this time. The opinions
advanced by the experts appear to us to have been founded on logical
reasoning and to have been made on a logical basis, with the comparative
risks and benefits assessed in order to reached a defensible conclusion in the
manner required by the Court in Michael.

[45] Despite the fact that the child has not as yet been enrolled in grade 1 , the
years of deeply acrimonious litigation in which the parties have engaged for
the past three years have had the result that the child has not been in a
position to spend meaningful periods of time with the respondent in order to

position to spend meaningful periods of time with the respondent in order to
develop a strong and healthy relationship with him as is father. This has had,
most importantly, deeply negative consequences for the child who has not
been placed in a position to develop a strong and healthy relat ionship with his
father. As much is evident from the fact that when asked to draw of picture of
his immediate family members, this does not include the respondent.

[46] We accept the finding of the experts that the child has emotionally bonded
with both of his parents. We note that the child desires and would benefit from
more time with his respondent and that he expresses no discomfort in
expressing his needs to the respondent. The paternal relationship is a
significant one both to the respondent and the child and it must be allowed to
develop further so as to deepen the child’s bond with the respondent. This is
clearly, and urgently, in the child’s best interests.

[47] We accept further the view of the experts that the appellant’s support for the
relationship between the respondent and the child is not optimal and that both
parents report and demonstrate significant difficulties with effective
coparenting in the best interest of the child . We also accept the shared
opinion of the experts that both parents present with generally intact parenting
ability, although each demonstrates some vulnerabilities , as well as the ir
assessmnt that there appears to be a mild degree of enmeshment between
the appel lant and the child which may lead to emotional confusion and
potential difficulty for the child if unaddressed.

[48] We do not however accept the recommendation of the experts that in the
child’s best interests a curator ad litem be appointed until litigation i s
complete. The decision whether to have a curator appointed is one to be
made by a court and the view of the experts on such a matter is, we believe,
no more than a recommendation. W e are cognisant of the fact that th e
recommendation made by experts arises given the unique circumstances of
this matter. Whilst the appointment of a curator ad litem may in due course be
an appropriate step forward to ensure that the child’s best interests are
properly protected in the face of deeply antagonistic and unconstructive
parental relationships and behaviours, we consider such a step to be
premature and unnecessary at the current time.

premature and unnecessary at the current time.

[49] What is clear to us is however is that a parenting coordinator should be
appointed to protect th e child’s best interests without delay. We do not
consider it appropriate for such appointment to be made only once litigation is

finalised, as is proposed by the experts . This is so given the risk that such a
date may arrive only in years to come and when the continued antagonism
between the parties in this matter remains evident.

[50] We accept the recommendation of the experts on a proper and careful
assessment of the relevant facts and circumstances of the matter that a
roughly 60/40 split in care and contact should be ordered , although we
recognise that a perfectly calculated dissection of days to achieve this
proportion is difficult and impracticable in the longer term given the child’s
schooling needs . We accept however the appellant’s contention that the 14
nights shared residency arrangement ordered by Van Zyl AJ is unworkable for
a number of reasons. These include the cos t and logistical difficulty of moving
the child across the country twice a month, the disruption that this will impose
on his attendance at pre -primary and then primary school and the negative
impact that this will have on forging consistent relationships with peers and
teachers whilst he is ferried around the country between his parents. For this
reason, we take the view that the order of the Court a quo must be varied to
distinguish between school terms and holiday periods. During periods within
the schoo l term, we consider it appropriate that the child remain primarily
resident and in the care of the appellant, with the respondent granted
reasonable contact to the child. During school holiday s we consider it
appropriate for the opposite arrangement to apply, with the child primarily to
remain in the care of the respondent with the appellant granted reasonable
contact with the child. Such an order gives effect to the recommendation of
the experts that residence be shared on a 60/40 basis. We do not accept t he
recommendation of the Family Advocate’s office that s chool holiday contact
be regulated by way of a parenting plan put in place only once the child has

be regulated by way of a parenting plan put in place only once the child has
started formal schooling. Given what has transpired in the matter, we are not
satisfied that such a recommendation is in the child’s best interests.

[51] We find that the difficult and convoluted shared residency arrangement which
was put in place by Van Zyl AJ is patently not in the best interests of the child.
Instead we find that t he child’s residency with the respondent during school
holidays will provide the respondent with the substantial periods of time which

the experts agree must be provided to him, during which he will be in a
position to strengthen his bond with the child in the respondent’s own home
environment. As stated, this is clearly in the child’s best interests.

[52] In addition, w e accept the recommendation of the experts that the child be
referred to play therapy. We take the view that this must be with immediate
effect given the consequences of the parental conflicts to which the child has
been exposed so as to ensure that his mental, social and psychological
wellbeing is secured in his best interests. The re is no reason why the cost of
such therapy should not be borne by both parties.

[53] We find no reason to warrant imposing a cost order against either party in this
matter. Although the appeal is upheld and the order of Van Zyl AJ varied, the
underlying facts and circumstances of the matter do not justify the imposition
of a costs order against any one party, more so given the conduct of the
parties and the ongoing litigation in which they are engaged.

Order

[54] For these reasons the following order is made:

1. The appeal is upheld with no order as to costs.
2. The order of Van Zyl AJ is set aside and substituted as follows:
‘1. The child is to be primarily resident and in the care of the appellant,
during all school terms and primarily resident and in the care of with the
respondent during all school holidays periods.
2. During the periods of primary residence with the appellant or the
respondent as set out above, the parent with whom the child is not
residing is entitled to exercise contact with the child every alternat e
weekend from 16h00 on a Friday until 08h00 on a Monday in the
province in which the child is residing at the time.
3. The parties are to bear all travel costs of the child equally and will be
responsible for all of their own travel and accommodation costs.

4. The parties will each have the right of first refusal to look after the child
when the other is away during any period in which the child is resident
and in the care of the other parent.
5. The parent with whom the child is not residing on his birthday will be
entitled to have contact with the child on the day of his birthday for a
period of no less than four hours.
6. The parent with whom the child is not resident for the period from
Christmas to new year, over the Easter weekend and during all other
long weekend holiday s, will exercise care and contact with the child
during each Christmas to new year, Easter and other long weekend
holidays every alternate year.
7. The child will have reasonable daily video contact with the parent in
whose care he is not for a period of 30 minutes a day, provided that
should the child wish to contact such parent at any other time, he may
do so.
8. Both parties shall jointly make decisions concerning the child’s
education, religion, medical treatment and extra-mural activities.
9. The parties are entitled to establish independent relationships with the
child’s schools, doctors, dentists and other professionals with whom
the child has relationships or interaction.
10. The parties may both be present at school functions, meetings,
concerts and other such activities.
11. A parenting coordinator is to be appointed with immediate effect to
assist the parties in their parenting of the c hild and in the mediation of
disputes between them, with the parents jointly to bear the costs of
such parenting coordinator.
12. The parents are at their own cost and with immediate effect to
commence, or continue with , individual psychological therapy with a
counselling psychologist to endeavour to ensure that their respective
interpersonal difficulties with each other are managed effectively
through appropriate psychological intervention so as to advance the
child’s best interests.
13. The child wi ll attend play therapy with immediate effect with a

child’s best interests.
13. The child wi ll attend play therapy with immediate effect with a
counselling psychologist or other appropriate professional agreed upon

between the parties, with the costs of such therapy to be shared by the
parties equally.
14. Each party is to pay their own costs.’


_______________________
NDITA J

____________________
SAVAGE J

_____________________
MANGCU-LOCKWOOD J


APPEARANCES:

For the appellant: E S Law
Instructed by BDE Attorneys

For the respondent: C van Schalkwyk
Instructed by Kern, Armstrong & Associates