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
GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO: 21/36802
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED:
11 August 2025

In the matter between:

P[…] N[…] Applicant

and

K[...] N[...] Respondent


JUDGMENT


SEGAL AJ:

[1] This is an application in terms of Uniform Rule 43(6) in which the Applicant
(the father) of two young children, T[...] and S[...] N[…] seeks an order for increased
contact to the children, which relief is opposed by the Respondent ( the mother). For
convenience sake, in this judgment I shall refer to the parties as the father and the
mother respectively.

[2] The contact arrangement which currently prevails arose from an order agreed
between the parties and granted by consent by the Honourable Wilson J on the 17
th

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of August 2021. Notably, at that time, T[...] (the son) was 4 years old, and S[...] (the
daughter) was 2 years old.

[3] The contact was crafted and agreed to at that time , on the basis of the
children’s respective ages and stages of development.

[4] The father contends that he has , for the longest time sought to secure
increased contact to the children but contends that he has, to all intents and
purposes, been stonewalled by the mother who simply refuses to permit increased
contact.

[5] The application was initially brought as an urgent one in December 2024, but
the application was strangely struck from the roll for apparent want of urgency. That
same application was subsequently re-enrolled together with an amended Notice of
Motion and a Supplementary Affidavit, to which the mother has responded.

[6] The amended relief which the father now seeks by way of Rule 43(6) is inter
alia for the appointment of a forensic expert to conduct an investigation into the best
interests of the children, for increased contact to both T[...] and S[...] as well as
defined contact over school holidays and on certain religious days and special days.

[7] The mother agrees to the relief that a forensic psychologist be appointed but
not to the implementation of increased contact as sought by the father.

[8] The father contends that the Rule 43(6) Application was necessitated by inter
alia disturbing conduct on the mother’s part that emerged at the end of 2024 when
T[...] disclosed to him that the mother had requested T[...] to secretly video the
ongoings in the father’s home and return the recordings to her when he returned to
her home. T[...] was obviously conflicted by this wholly inappropriate request and
when he was caught, he disclosed that his mother had put him up to it.

[9] T[...] also disclosed that both his mother and his grandmother had
hit/smacked him on several occasions. There was a further incident where the

hit/smacked him on several occasions. There was a further incident where the
mother is alleged to have had a disagreement with the domestic worker who assists

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the father and instructed the children that they need not listen to her as she is an
“illegal immigrant”.

[10] The mother allegedly called the police with a view to having the father’s
domestic worker arrested. T his was a source of great distress to the father, the
children and of course the domestic worker. The mother denies this allegation.

[11] The father also contends that the mother has repeatedly called the private
security company and the South African Police Services to the Estate in which she
and the father both live (but in separate homes) , that she enters the father’s home
unilaterally and uninvited and that her conduct is a source of distress for the
children.

[12] There have been three enquiries by the office of the Family Advocate, and
three reports rendered containing recommendations in respect of the children’s care
and contact . The Family Advocate’s recommendations appear not to have been
implemented from June 2022 to date on account of the mother’s steadfast refusal to
do so, notwithstanding the father’s requests.

[13] No cogent reasons for the refusal to allow extended contact have been
proffered by the mother . In argument, she asserted that she does not see any
reason to change the contact.

[14] The material change in circumstances relied upon by the father in support of
the order for increased contact sought by him are:-

14.1 the fact that the children are now four years older than they were at
the time that the initial order was granted;

14.2 that their circumstances have changed from a developmental
standpoint;

14.3 that the Family Advocate has recommended extended contact both
over weekends and on weekdays.

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[15] Despite attempts to resolve the question of increased contact , it appears that
the parties are unable to do so.

[16] It also appears that when the matter was judicially case managed, it was
noted by the judicial case manager that the mother had adopted a stance that was
dilatory. Regrettably it seems that this modus operandi continues.

[17] The mother, who appeared in person albeit that she had been legally
represented until recently and whose papers were drafted by her erstwhile a ttorneys
and/or counsel, contended that she does not see any reason to change the current
contact.

[18] When pressed to explain her position she asserted that the bases upon which
she opposes extended contact are firstly that the father is a CEO of a large
company, travels regularly and frequently requests that she swaps scheduled
contact periods. This is denied by the father who asserts that he infrequently seeks
accommodations but for the most part exercises contact as scheduled.

[19] Secondly, the mother contends that the father should not have extended
contact because he allegedly abuses alcohol. She avers that there have been
numerous incidents in which the father had consumed alcohol to excess, whilst the
children were in his care and that there were instances where she had been
constrained to contact security at the complex to intervene.

[20] The third basis upon which the mother asserted that extended contact should
not be ordered at this stage, is that she wished for this issue to be mediated. She
contends that the parties had endeavoured unsuccessfully to mediate before but that
there was still a prospect of the matter being mediated now.

[21] An analysis of the father’s case and whether he has and demonstrated a
material change in circumstances such as to warrant a variation of the Rule 43
order, together with the mother’s objections has been considered.

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[22] It is correct that in the period between August 2021 and the present day, the
children have developed and matured considerably, and their daily routines have
changed. Strangely, despite the fact that S[...] is now 6 years old, she is not
permitted to have sleepover contact with the father. The two children have different
contact regimes and whilst there may have been a good reason for this discrepancy
when S[...] was 2 years old, there is simply no basis for this to continue now. Notably
when the mother travelled overseas for a period of approximately 2 weeks, both
children resided with the father who ably cared for them. There is simply no basis for
the father’s contact not to be increased.

[23] It is obviously not possible for a Rule 43 Court to make findings in respect of
disputes of fact that cannot be independently corroborated but it seems to me that
the allegations concerning the father’s excessive alcohol consumption have been
raised repeatedly by the mother , investigated by not only the Family Advocate but
have been tested by an independent laboratory, SA Mobile Drug Testing and found
to be devoid of merit.

[24] The independent expert that I intend to appoint ( by agreement between the
parties) to conduct a full forensic investigation should be requested to investigate
inter alia , whether or not the father has an alcohol dependence / problem and
whether this needs to be addressed by him.

[25] In the face of the three Family Advocate’s reports as well as the report of SA
Mobile Drug Testing, I am disinclined to make any orders in this regard.

[26] The simple fact of the matter is that the father took care of the children for two
weeks when the mother was required to travel overseas and he exercises regular
(albeit insufficient) contact with both minor children and there does not appear to be
any objective evidence of the father’s alcohol consumption being excessive or
affecting the children.

affecting the children.

[27] Insofar as the father’s travel for business purposes is concerned, I do not
believe that it should be a bar to his contact being extended, Ultimately, parties need
to co-operate with another to foster a positive relationship between the children and

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both parents and this may well involve both parties adopting a flexible and
accommodating stance rather than one which is rigid and intractable.

[28] I have considered the submissions of both parties as well as their additional
written submissions in respect of the draft order proposed by the father’s counsel
(which were sent to me after the conclusion of argument ). I have noted the changes
that the mother proposes but find that there is no basis for these limitations to be
upheld. They appear to be arbitrarily restrictive and are not supported by any cogent
evidence. Both children must be afforded proper contact to their father both during
school term and during school holidays and special days and the implementation
thereof should not be delayed.

[29] The Family Advocate, FJ Vogel had made the following recommendations on
28 June 2022:-

“RECOMMENDATION

26. In the premises, the following recommendation is respectfully made:

26.1 The parties to retain full parental responsibilities and rights as
contemplated in section 18 of the Children's Act 38 of 2005, read with
sections 19 and 20;
26.2 The children's primary residence to be with the respondent in
Gauteng;

26.3 The applicant to exerc ise unsupervised contact with the children as
follows (commencing September 2022):36

a. Every second weekend from Thursday afternoon to Monday morning
when the minor children are to be returned to school;37

b. Every intervening Thursday from after school to Friday morning w hen
the minor children are to be returned to school;

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c. Every Tuesday afternoon for two hours;

d. Half of each school holiday or period corresponding with same, subject
to the following phased-in approach:

i. 2022: no more than seven nights;

ii. 2023: no more than10 nights;

iii. 2024: no more than 14 nights;

iv. 2025: half of school holidays.

e. Public holidays falling on a Friday or Monday to form part of the
succeeding or preceding weekend, with the necessary changes; other public
holidays to alternate between the parties;

f. Father's Day and the applicant's birthday to be spent with the applicant;
Mother's Day and the respondent's birthday to be spent with the respondent;
the minor children's birthdays to be shared or alternated;

36 The parties are, of course, welcome to agree to the nanny also
accompanying the minor children.
37 S[...]’s contact to be phase in over six months:
Two months: one night;
Two months: two nights;
Two months: three nights; and
After six months: four nights.


g. Telephonic contact every other day between 18:00 and 18:30; and

h. Any other reasonable contact as agreed upon.

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26.4 The parties to appoint a suitably qualified mental health professional to
act as case manager with the following minimum duties and responsibilities:

a. To mediate disputes;

b. To monitor the respondent's psychological health and to ensure that
same is reviewed on a quarterly basis;

c. To monitor the applicant's contact with the minor children and to facili-
tate the introduction of the recommended contact arrangement;

d. To monitor the applicant’s possible use of drugs and alcohol and to
request him to undergo random drug tests if necessary;

e. To monitor the minor children's emotional wellbeing and to provide
them with appropriate therapy or refer them to another professional;

f. Other duties and responsibilities as agreed upon between the
parties...”

[30] This extended contact ought to have been implemented years ago and the
intransigent stance of the mother on this score should be carefully scrutinised by the
expert.

[31] In all the circumstances , I am persuaded by the father that the order sought
by him is indeed in the minor children’s best interests.

[32] The following order is granted:-

28.1 Both the Applicant and Respondent are granted leave to file their
respective supplementary affidavits in terms of Rule 43(5).

Pendente lite:

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28.2 The existing interim order granted by this Honourable Court on 17
August 2021 is hereby varied by the deletion of paragraphs 2.4, 2.5, 2.6 and
2.7 in their entirety and the substitution of the following paragraphs in place
thereof:
“…
2.4
2.4.1 That Nellie Prinsloo, clinical psychologist in private practice
of Nellie Prinsloo Inc, is hereby appointed to conduct the agreed full forensic
investigation and assessment of the Applicant, the Respondent and the two
minor children, T[…] and S[…] N[…], with regard to the allocation of parental
responsibilities and rights of care and contact, as provided in terms of Section
18(1) of the Children’s Act 2005 as amended. (“mandate”)
2.4.2
2.4.2.1 That Respondent, within 5 days from date of the
order herein, shall complete and sign all relevant documentation required by
Nellie Prinsloo for her to carry out her mandate including but not limited to:
(a) the consent for evaluations for court purposes;
and
(b) the questionnaires and forms for the said
consent for evaluations; and
(c) all and any other relevant documentation
required by Nellie Prinsloo.
2.4.2.2 That the completed and signed consent and
quotation letter and any other relevant documentation required by her, be
submitted to Nellie Prinsloo within 5 days from date of the order of court
granted herein.
2.4.2.3 In order for Nellie Prinsloo to fulfil her mandate:
(a) Both parties shall co-operate fully with all of Nellie Prinsloo’s
requirements at all times in respect of the agreed forensic investigation and
assessment; and
(b) Both parties shall make themselves available to consult or to undergo
testing required by Nellie Prinsloo as and when required to do so;
(c) Nellie Prinsloo shall include in her investigat ion, inter alia ,

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consideration of whether or not the applicant has an alcohol dependence /
problem and whether this needs to be addressed by him ; and the
respondent’s steadfast refusal to permit the applicant to have age-appropriate
contact to the children.
2.4.3 That each party shall be equally liable for the costs of the
agreed forensic investigation, assessment and report.”
2. Pending the finalisation of the forensic investigation, assessment and the
publication of the report containing the recommendations of Nellie Prinsloo,
the Applicant shall exercise contact to the minor children follows:-
3. Alternate weekends
3.1 T[...]
Alternate weekends from Thursday after school to Monday morning when the
Applicant shall return T[...] to school.
3.2 S[...]
3.2.1 For one month from the date of this order, [11 August 2025
to 11 September 2025] one night sleepover contact from 09:00 on a Saturday
to 18:00 on a Sunday.
3.2.2 For the following two- month period, [12 September 2025 to
12 November 2025] two -night sleepover contact from Friday after school to
Sunday, 18:00.
3.2.3 For the following three-month period, [13 November 2025 to
13 February 2025] during the school term; a three night sleepover contact
from Friday after school until Monday when school starts and when he shall
return her to school.
3.2.4 Thereafter, after the expiry of the said six -month period,
sleepover contact from a Thursday after school until a Monday when school
starts and when he shall return her to school.
BOTH CHILDREN
4. Midweek sleepover contact
Each Wednesday from after school until Thursday morning when school
starts and he shall return them to school.
5. School holidays
5.1 Applicant shall be entitled to contact to the minor children in the first
half of December 2025 school holiday from 09:00 on 11 December 2025 to 27

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December 2025 at 14:00;
5.2 Long school holidays in respect of both children
5.2.1 The July long school holiday shall be shared equally
between the parties [the first half and the second half shall alternate annually].
5.2.2 In respect of the December long school holiday:
5.2.2.1 the first half shall start at 09:00 the day after the
school term ends until 14:00 on 27 December of that year;
5.2.2.2 the second half shall commence at 18:00 on 27
December until 18:00 on the day before the school term starts for the
following academic year.
[The first half and the second half shall alternate annually].
5.3 The parties shall be entitled to alternate short school holidays.
Applicant shall be entitled to contact over the second short school holiday in
2025.
5.4 In respect of the Easter period, in the event that it falls outside of the
short school holiday period, it shall alternate between the parties annually.
6. Public holidays
6.1 Those falling on a Friday or a Monday form part of alternate
weekend contact;
6.2 Otherwise, public holidays alternate between the parties.
7. Applicant’s birthday and Fathers Day
7.1 On Applicant’s birthday, from 14:00 on the day before his birthday
until 18:00 on the day of the birthday.
7.2 In respect of Father’s Day, in the event it falls outside of Applicant’s
weekend contact, from 14:00 on the Saturday before Father’s Day until 18:00
on Father’s Day.
8. Respondent’s birthday and Mother’s Day
8.1 On Respondent’s birthday, from 14:00 on the day before her
birthday until 18:00 on the day of her birthday.
8.2 In respect of Mother’s Day in the event it falls on Applicant’s
weekend contact, from 14:00 on the day before Mother’s Day until 18:00 on
Mother’s Day.
9. Children’s birthdays
The birthdays of the minor children shall be shared equally on the birthday of

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each child.
10. Telephonic contact
Reasonable telephonic contact.
11. Religious holidays and celebrations
11.1 Diwali:
11.1.1 With regard to the Festival of Lights (Diwali), the most
important days are days 3 and 4 (the two-day Diwali period).
11.1.2 The said two -day Diwali period shall alternate between the
parties annually.
11.1.3 Applicant shall be entitled to the two -day Diwali period in
2025 from 14:00 on the day preceding day 3 until the morning of day 5 when
school starts.
11.2 Maha Shivaratri
The one-day festival (celebrated at night) shall alternate between the parties
annually from 14:00 on the day prior to the festival until 19:00 on the day of
the festival.
11.3 Sarawasthi
The one-day festival shall alternate between the parties annually from 14:00
on the day prior to the festival until 19:00 on the day of the festival.
11.4 Draupadi
11.4.1 The religious festival coincides with Good Friday of the
Easter weekend.
11.4.2 It shall alternate between the parties annually, as is provided
in respect of the Easter weekend contact provisions.
11.5 Christmas/New Year period
It shall alternate between the parties in accordance with the equal shared
December holiday contact provisions.
12. Funeral/mourning periods in respect of close family of Applicant
Applicant shall be entitled to exercise contact:
12.1 from the date of death until the day after the funeral;
12.2 in respect of the 16-day memorial service : 2 days before and 1 day
after the service; and
12.3 in respect of the one- year memorial service : the day before the
service until the day after the service.

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13. Right of first refusal
In the event that either party is unable for any reason whatsoever, to care for
the minor children for any period in excess of 12 hours including any
extended overnight contact period, the other party shall have the right to
exercise care and contact to the two minor children for that period.
14. Contact to operate from date of grant of order
The said rights of contact shall be implemented immediately with effect from
date of grant of the order of court herein.”

28.3 The costs of the application are costs in the cause of the divorce
action.

SEGAL AJ
ACTING JUDGE OF THE HIGH COURT
GAUTENG LOCAL DIVISION, JOHANNESBURG

Delivered: This judgment was prepared and authored by the Judge whose name
is reflected and is handed down electronically by circulation to the Parties/their legal
representatives by email and by uploading it to the electronic file of this matter on
CaseLines. The date for hand-down is deemed to be on 11 August 2025.

Heard on: 30 July 2025
Delivered on: 11 August 2025

Appearances:

RM Courtenay:
Shereen Meersingh & Associates: for the Applicant

In person for the Respondent