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REPUBLIC OF SOUTH AFRICA







IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE

APPEAL CASE NUMBER: HCAA 6/2025
COURT A QUO CASE NUMBER: 176/2025
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED.
DATE: 20.08.2025
SIGNATURE:

In the matter between:

M[...] M[...] M[...] 1ST APPELLANT

K[...] S[...] M[...] 2ND APPELLANT

-and-

T[...] V[...] M[...]3 RESPONDENT

Delivered : 20 August 2025

This judgment was handed down electronically by circulation to
the parties' legal representatives by e -mail. The date and time
for hand down of the judgment is deemed to be 20 August 2025
at 10:00 am.

Date heard : 25 July 2025

Coram : Bresler AJ et al Naude-Odendaal J, Pillay AJ

JUDGMENT

BRESLER AJ:

Introduction:

[1] The Appellants appeal against the whole of the judgment and order of the
Honourable Madam Justice Ngobeni J delivered on the 16 January 2025 in terms
whereof:

1.1 The interim order granted on 14 January 2025 was confirmed; and
1.2 No order as to costs was made.

[2] Leave to Appeal to this Court was granted by the Supreme Court of Appeal on
the 18th of March 2025.

Factual synopsis:

[3] The Appellants are the maternal grand parents of the minor children. The
children involved are M...K...J...M, a son born on the 1st of May 2007 from a previous
relationship of the Appellant's late daughter, M[...]2 L[...] M[...]3 (born M[...])
(hereinafter 'M[...]2'), and the two minor children, O ... H...M, a son born on the 2nd of
November 2012 and O...I...M, a daughter born on 9 September 2020 from the
relationship between M[…]2 and the Respondent.

[4] The Respondent is thus the biological father of the O...H...M and O...I...M only .
It is however common cause that M...K...J...M also stayed with them and that the
Respondent was actively involved in his upbringing since the inception of his
relationship with M[...]2 in 2010 when M...K...J...M was only three years old till 2024.
M[...]2 and the Respondent were married both in accordance with customary law and
civil law. During or about 2024, M[...]2 fell ill. She subsequently passed away during
the first week of March 2024.

[5] The Respondent's version was that he retained ful l parental rights and
responsibilities pertaining to the minor children. The Appellants were infringing these
rights to the detriment of the minor children. Suffice to state that no pertinent
allegations of abuse (either physical, emotional or otherwise) were raised against the
Appellants although the Respondent complains about an acrimonious relationship
between himself and Appellants.

[6] The actions of the Appellants resulted in the Respondent approaching the
Court on an ex parte basis for an order for the return of the minor children to him.
The rule nisi was anticipated by the Appellants who opposed the granting of a final
order and simultaneously launched a counter application inter a lia asking for the
interim guardianship in respect of the minor children to be awarded to them.

[7] It is the case of both the Appellants and the Respondents that numerous
communications and interactions ensued between the parties after the passing of
M[...]2. Especially as their youngest granddaughter, O... I...M who wa s only 4 years
old at that time. It is furthermore common cause that the Appellants enjoyed
unhindered contact with the minor children.

[8] The Appellants testified that during or about July 2024, the Respondent was
experiencing health issues, and requested assistance from the appellants to take
care of the youngest child, who subsequently stayed with them. The other two

care of the youngest child, who subsequently stayed with them. The other two
children visited during the three sc hool holidays in 2024. The Appellants alleged that
during these periods, the Respondent had very little physical contact with the minor
children and failed to ensure that their material needs were met.

[9] The Appellants, in support of their counter claim , alleged that the conditions
prevailing in the home of the Respondent was not safe, healthy and conducive to the
development of the minor children. The following specific allegations were made:

9.1 That the Respondent would bring home various women whils t the
minor children were residing with him. This had a negative impact on the
psychological and emotional wellbeing of the minor children;
9.2 The Respondent would verbally abuse the minor children, especially
the eldest, M...K...J...M.
9.3 The Respondent would leave home for days without having left the
children with a care giver or even a domestic assistant. This would result in
the children calling their maternal aunt, Ms K[...] S[...] to assist with providing
food and funding.
9.4 Upon visiting the ir home, their maternal aunt would find the children in
the dire situation of having no food, and no adult supervision or assistance.
9.5 The older minor children expressly indicated that they wished to remain
with the Appellants as the Respondent failed t o take proper care of them and
left them in an unhealthy environment.
9.6 The Respondent in possession of the Interim Court Order sought to
remove the children with no success, amidst being assisted by officials from
the South African Police Services (the 'SAPS'). During the interaction with the
SAPS, the older two children again adamantly expressed their wish to remain
with the Appellants.
9.7 The Appellants sought the services of a private social worker, Ms
Tebogo Madiane Anna Segoo, as the state employed Social Worker indicated
that she was on leave (and the matter was to be entertained in the residential
area where the children resided). The children were interviewed by the private
social worker who prepared a preliminary report. In the report, the socia l
worker reiterated the children's wish to remain with the Appellants. She also
confirmed that the elder children independently reported their experiences,

confirmed that the elder children independently reported their experiences,
the hunger, neglect and threats of violence and verbal vitriol suffered in the
care of the Respondent.
9.8 Premised on the aforesaid information, the Appellants persisted in their
prayer that the interim order should be dismissed. They also pursued their

counter application for interim guardianship pending the institution and
finalisation of an applicati on for the suspension and / or termination of the
Respondent's guardianship over the minor children.

Judgment in the Court a quo:

[10] The Court a quo correctly stated that the best interest of the minor children is
at stake. It is furthermore correctl y noted that there is no court order granting any
parental rights or responsibilities to the Appellants.

[11] The crux of the judgment and order of the Court a quo lied in the analysis of
the term 'designated social worker' as referred to in Section 157 o f the Children's
Act, Act 38 of 2005 (hereinafter the 'Children's Act'). It was opined that the private
social worker did not fall within the definition of 'designated social worker'
contemplated in the Children's Act.

[12] On this basis, the report of th e private social worker was rejected in toto. As
there was no admissible evidence before court, the Court consequently found in
favour of the Respondent and granted the final order in favour of the respondent.

[13] Following upon that order the respondent attempted to enforce his rights to
remove the children with no success. This resulted in the Respondent physically
removing the youngest child O ...I... M from the care of the Appellants and the
Respondents current whereabouts and that of the wellbeing of this four-year female
child is unknown. This Court was informed that a criminal charge was laid against
the Respondent and attempts to trace him was unsuccessful, the two older children
were still residing with the Appellants.

Grounds of Appeal:

[14] The Appellants relied on the following grounds in their Appeal:

14.1 The Court failed to consider the well-established principle that failure to
disclose material facts must lead to dismissal.

14.2 The Court failed to apply Section 29 of the Childre n's Act insofar as a
Court may, for purposes of the hearing, order that a report and
recommendation of the family advocate, social worker or suitably qualified
person must be made available.
14.3 The Court erred in finding that the private social worker wa s not
'designated' and therefore her report was inadmissible.
14.4 The Court furthermore erred in not calling testimony by the minor
children through the service of an intermediary as proposed by the Appellants
for the older children's input in respect of the dispute, and where they wanted
to stay.
14.5 The Court failed to determine what would serve the best interest of the
minor children.

Issues that require determination:

[15] This Court was called upon to determine whether the granting of the final
order was warranted in light of the conflicting evidence presented by the parties. At
the heart of the matter is the determination concerning the best interests of the minor
children and the need for the protection of same, amidst the various conflicting
allegations.

The Applicable Legal Principles:

[16] The Constitution, 1996 makes it clear that decisions pertaining to children
are paramount and regard to their best interests must be always considered. Section
28 provides as follows:

'(2) The best interest s of the child are of paramount importance in every
matter concerning the child.'

[17] The High Court sits as an upper guardian of all children whose best interest is
at stake and is clothed with wide procedural powers in determining same.
Accordingly, the court is not bound by procedural structures or by the limitations of

the evidence presented, or contentions advanced or not advanced, by respective
parties.1

[18] Section 45 of the Children's Act makes it clear that:

'(4) Nothing in this Act shall be construed as limiting the inherent Jurisdiction
of the High Court as upper guardian of all children'.

[19] Section 7 of the Children's Act further provide that whenever a provision of
the said Act requires the best interests of the child standard to be applied, the Court
must take into consideration several factors that includes (but is not limited to) the
need to protect the child from any physical or psychological harm that may be
caused by subjecting the child to maltreatment, abuse, neglect, exploitation or
degradation or exposing the child to violence or exploitation or other harmful
behaviour or exposing t he child to maltreatment, abuse, degradation, ill -treatment,
violence or harmful behaviour towards another person.

[20] The factors set out in Section 7 of the Children's Act constitute a non -
exhaustive checklist of criteria which serve as guides when dec iding upon what the
best interest of a minor child are.

[21] In the matter of Girdwood v Girdwood2 it was held that

'...as upper guardian of all dependent and minor children this Court has an
inalienable right and authority to establish what is in the be st interests of
children and to make corresponding orders to ensure that such interests are
effectively served and safeguarded’.

[22] Likewise, in J v J3 at paragraph 20 it was held:


1 Kotze v Kotze 2003 (3) SA 628 (T) at 630
2 1995 (4) SA 698 (C)
3 2008 (6) SA 30 (C)

'[20] As the upper guardian of minors, this court is empowered and under a
duty to consider and evaluate all relevant facts placed before it with a view to
deciding the issue which is of paramount importance: the best interests of the
child. In Terblanche v Terblanche [5] it was st ated that when a court sits as
upper guardian in a custody matter -

. . . it has extremely wide powers in establishing what is in the best
interests of minor or dependent children. It is not bound by procedural
strictures or by the limitations of the evid ence presented or contentions
advanced by the respective parties. It may in fact have recourse to any
source of information, of whatever nature, which may be able to assist
it in resolving custody and related disputes.

In P and Another v P and Another 4 Hurt J stated that the court does not look
at sets of circumstances in isolation:

I am bound, in considering what is in the best interests of G, to take
everything into account, which has happened in the past, even after the
close of pleadings and in fact r ight up to today. Furthermore, I am
bound to take into account the possibility of what might happen in the
future if I make any specific order.

In AD and OD v OW and Others (Centre for Child Law as Amicus Curiae;
Department for Social Development as Intervening Party) 5 the Constitutional
Court endorsed the view of the minority in the Supreme Court of Appeal that
the interests of minors should not be 'held to ransom for the sake of legal
niceties' and held that in the case before it the best interests of the child
'should not be mechanically sacrificed on the altar of jurisdictional formalism'.

[23] More recently the full bench of the Gauteng Division stated the following in
R.C v H.S.C6

4 2002 (6) SA 105 (N) at 110C-D
5 2008 (3) SA 183 (CC) para 30 at 370A.
6 2023 (4) SA 231 (GJ)

'A Court should, where a child's welfare is at stake, '...be very slow to
determine facts by way of the usual opposed motion approach... That
approach is not appropriate if it leaves serious disputed issues of fact relevant
to the child's welfare unresolve d.' The best interests of the child principle is a
flexible standard and should not be approached in a formalistic manner. We
find that a sufficiently child -centred approach was not followed by the Court.
This is apparent from the wording used by the Court . The Court was
concerned with the Appellant being afforded legal rights and embarked upon
a process whereby it compared ’ 'The aspects of the case that inure to a
finding that the applicant should be accorded rights of contact and care' and
with the aspects militating against the relief sought.

The Supreme Court of Appeal has cautioned that this type of litigation is 'not
of the ordinary civil kind. It is not adversarial'. The approach, in our view, was
correctly summarised by Howie JA in B v S (supra) and has even more
application now, having regard to the legislative changes which have been
affected since B v S in 1995 and the section 7 considerations in terms of the
Children's Act:

In addition it seems to me to be necessary to lay down that where a parental
couple's access (or custody) entitlement is being judicially determined for the
first time - in other words where there is no existing Court order in place -
there is no onus in the sens e of an evidentiary burden, or so -called risk of
non­persuasion, on either party. This litigation is not of the ordinary civil kind.
It is not adversarial. Even where variation of an existing custody or access
order is sought, and where it may well be app ropriate to cast an onus on an
applicant, the litigation really involves a judicial investigation and the Court
can call evidence mero motu...'

[24] Considering an application in terms of Section 23 of the Children's Act ,

[24] Considering an application in terms of Section 23 of the Children's Act ,
which allows any person who has a n interest in the care, wellbeing or development

of a child to apply to court for an order granting him or her contact with the child, or
care of the child, it was stated by Smith J in the matter of LH and Another v LA7:

'The Act therefore recognises that a child is a social being, and that members
of the extended family, more often than not, play an important part in a child's
social and psychological development. Grandparents, more than other
relatives, usually take a keen interest in the upbringing of their grandchildren
and this relationship, provided that it is kept within reasonable bounds and
does not interfere with parental duties and responsibilities, often assists and
complements parental care. There can therefo re be little doubt that it is
usually in a child's best interests to maintain a close relationship with his or
her grandparents.'

[25] Having regard to the authorities stated herein before, this Court is of the view
that the Court a quo failed to fully ap preciate its roll as upper guardian of the minor
children. Moreover, in following the pedantic approach of disregarding viable, and
potentially disturbing, evidence from a suitably qualified individual and the
grandparents of the minor children purely on a technical ground, failed to adequately
appreciate the pivotal duty to determine what is in the best interest of the minor
children.

[26] Having been confronted with the information of abuse and neglect, the Court
should not have 'mechanically sacrificed’ the best interest of the minor children 'on
the altar of jurisdictional formalism' but should have properly and diligently
investigated all relevant factors prior to making the interim order final.

[27] On this basis alone, the Appeal must succeed, and the matter referred back to
the Court a quo to be dealt with by another judge for the matter to be appropriately
investigated in lieu of discharging its duty as upper guardian of the minor children,
accountable with the duty to investigate their best interest.


7 2012 (6) SA 41 (ECG) at para 13.

[28] In respect of the prayers sought by the Appellant concerning their counter
claim, no order was granted by the Court a qu o and no appeal can therefore lie
against it.

Costs:

[29] The Appeal is unopposed and it is thus appropriate to make no orde r as to
costs.

Order:

[30] In the result the following order is made:

30.1 The Appeal is upheld.

30.2 The order of the Court a quo is substituted with the following order:

30.2.1 The rule nisi is extended to 14 October 2025 at 10:00 to be heard
by a different judge;

30.2.2 The Office of the Family Advocate, Polokwane alternatively
Department of Social Development are ordered to investigate and
report to the Court within 21 (twenty-one) days from the date of this
order, concerning the best interests of the minor children in respect
of their primary residence, care and contact;

30.2.3 The Office of the Family Advocate, Polokwane alternatively the
Department of Social Development fo r purposes of conducting the
contemplated investigation may obtain, make use of or consider
the reports of any other suitably qualified person (including but not
limited to Ms Tebogo Madiane Anna Segoo) to enable them to
effectively comply with their obligations contemplated in this order.

30.2.4 Pending the outcome of the aforesaid investigation by the Office
of the Family Advocate, alternatively the Department of Social
Development:

(a) The minor children's current primary place of residence shall
remain with the Applicant (Respondent in the appeal);

(b) The Respondents (Appellants in the Appeal) shall be entitled
to reasonable contact with the minor children which includes
reasonable telephonic contact or contact via any other virtual
aid;

30.2.5 The Applicant (Respondent in Appeal) or the Respondents
(Appellants in Appeal), as the case may be, shall be entitled to
anticipate the return date hereof on an urgent basis and upon
receipt of the report from the Family Advocate or the Department
of Social Development.

30.2.6The costs of the application shall be determined on the return date.

30.3 No order as to costs in the appeal.



M BRESLER AJ
ACTING JUDGE OF THE HIGH COURT,
LIMPOPO DIVISION, POLOKWANE

I concur,


M NAUDE-ODENDAAL J
JUDGE OF THE HIGH COURT,
LIMPOPO DIVISION, POLOKWANE

I concur,


KL PILLAY AJ
ACTING JUDGE OF THE HIGH COURT,
LIMPOPO DIVISION, POLOKWANE


APPEARANCES:

FOR THE APPELLANTS : Adv. MH Masilo

INSTRUCTED BY : HLM Mamabolo Attorneys Polokwane
hlm@hlmlegal.co.za

FOR THE RESPONDENT : No Appearance

RESPONDENT'S ATTORNEYS: Maimane Attorneys Inc
Brits
info@maimaneattorneys.co.za