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
FREE STATE DIVISION, BLOEMFONTEIN
Not reportable
Case no: 4243/2025
In the matter between:
A[…] M[…] M[…] APPLICANT
(Identity number: 86[…])
And
J[…] B[…] RESPONDENT
(Identity number: 87[…])
Neutral citation: M[...] v B[…] (4243.2025) [2025] ZAFSHC 262 (27 August 2025)
Coram: Daffue J
Heard: 15 August 2025
Delivered: This judgment was handed down electronically by circulation to the parties’
representatives by email and released to SAFLII. The date and time for hand- down is
deemed to be 11h00 on 27 August 2025.
Summary: Best interests of child – interprovincial relocation of mother and primary
care giver of child – co- holder of parental responsibilities and rights submitted that his
consent to relocation was required – urgent application by co-holder to prohibit relocation
and to award primary care to him pending investigations by Family Advocate. –
application dismissed.
ORDER
1 T he relief claimed in paragraphs 5, 6 and 7 of the notice of motion is dismissed.
2 Paragraph 1.3 of the inter partes agreement between the parties pertaining to inter
alia rights of contact is amended by deleting the sub- paragraphs and substituting same
with the following:
‘1.3.1 the father shall have contact rights in respect of M[...] every alternative weekend
from Friday, 14h00 until Sunday, 18h00;
1.3.2 from the 2026 school year the father and mother shall equally share the long
school holidays, Christmas to alternate between them , whilst the short school holidays
shall alternate between them, the father having the right to have M[...] with him for the
September/October 2026 holiday;
1.3.3 the father shall ensure that the periods mentioned in paragraph 1.3.2 above shall
correspond with his annual or unpaid leave;
1.3.4 the father shall be responsible for his own travel ling and/or accommodation costs
in order to exercise his rights contained in paragraphs 1.3.1 and 1.3.2 above;
1.3.5 the father shall have three hours contact with M […] on her birthday and Father’s
Day if these do not coincide with a normal contact weekend or school holiday;
1.3.6 the father shall have regular telephonic/video call contact with M[...] on Mondays,
Wednesdays, Fridays and Sundays between 16h00 and 19h00 during the time that she is
not staying with him.
3 Leave is granted to the respondent to enrol M[...] at O[...] N[...] Primary School in
Upington.
4 The applicant shall pay the respondent’s costs of opposition of the application,
inclusive of the fees of counsel on scale B.
JUDGMENT
Daffue J
Introduction
[1] ‘’n Ha astige hond verbrand sy mond’. This Afrikaans proverb is an appropriate
warning to the applicant who is Afrikaans speaking. The English counterpart is: ‘haste
makes waste’. Having known from 31 July 2025 that the respondent intended to relocate
to Upington in the Northern Cape during the middle of August 2025, the applicant wa ited
until 14 August 2025 to issue his urgent application in terms w hereof he required the
respondent to file her answering affidavit on/or before 17h00 on that same day. She was
afforded less than 6 hours’ notice. He intended to apply for relief the next day at 10h00.
More about this later.
The parties
[2] The applicant is A[...] M[...] M[...], a distribution manager employed by Clover in
Bloemfontein. The respondent is J[...] B[...], employed at the time of the institution of the
application as a regional manager of a car wash company in Bloemfontein. The parties
were never married to each other, but a child, M[...] S[...] M[...] (M[...]), was born on 28
November 2019 out of their romantic relationship. Therefore, she is five years old, turning
six in two months’ time. She is presently in grade R and will start her formal schooling
next year.
The relief claimed
[3] The applicant sought the following orders:
‘1 The non-compliance with the prescribed forms, service, and time periods set out in the
Rules is condoned, and this matter is heard as one of urgency in terms of Rule 6(12) of the
Uniform Rules of Court;
2 The Respondent is not to relocate the minor child M[...] S[...] M[...] from Bloemfontein
pending the finalisation of the Family Advocate’s Investigation regarding M[...] S[…] M[...]’s best
interest and primary custody;
3 The minor child, M[...] S[...] M[...], will be in the care of the Applicant during such time
subject to the following:
3.1 The Respondent will have the following contact with M[...] S[...] M[...] unless otherwise
agreed:
3.1.1 Every alternative weekend in Bloemfontein at the Respondent’s expense;
3.1.2 One short school holiday a year;
3.1.3 Shared long holidays between the parties equally, with Christmas to alternate between the
parties;
3.1.4 Reasonable telephonic or video contact.
3.2 The maintenance order dated 01 February 2021 will remain in place;
4 In the event of non-compliance with prayer 2 supra, the Family Advocate and/or any
appropriate social worker or person is to remove the minor child M[...] S[...] M[...] from the
Respondent’s care, wherever she may be found, and place her in the Applicant’s care;
5 The Family Advocate is ordered to urgently investigate the aspects of M[...] S[...] M[...]’s
relocation as well as her best interest and primary residency and to provi de the Honourable Court
with an urgent report in that regard;
6 The Parties are granted leave to supplement their papers and to re-enrol the matter once
the Family Advocate’s report has been filed;
7 The Respondent to pay the Applicant’s costs of the Application on attorney and client
scale, Scale B, if opposed; and/or
8 Further and/or alternative relief.’
The proceedings of 14 and 15 August 2025
[4] As said, the applicant issued his application on 14 August 2025. The respondent
served her notice of opposition late afternoon on 14 August 2025 and filed her answering
affidavit soon after 08h00 on 15 August 2025.
[5] This court was involved with two opposed bail appeals which were set down for
09h30 and 10h00 on Friday, 15 August 2025, as well as two other opposed urgent
applications. When this matter was called, Mr Lubbe who appeared for the applicant, was
specifically asked whether his client intended to file a replying affidavit , or whether he
would be forfeiting the right to do so. After obtaining instructions , Mr Lubbe indicated that
a replying affidavit would be filed and sought leave until 14h00 the same day. If the issue
was not about the best interests of the child and the respondent’s imm inent relocation to
Upington, I would have struck the application from the roll. However, in order to be fai r
and ensure that the parties have sufficient opportunity to deal with the issue, I granted the
and ensure that the parties have sufficient opportunity to deal with the issue, I granted the
request and adjourned the matter until 14h30.
[6] The replying affidavit was duly filed. Having heard oral submissions by the parties,
the relief claimed in paragraphs 2, 3 (with the exclusion of paragraph 3.2) and 4 of the
notice of motion was dismissed. My order read as follows:
‘1. The relief claimed in paragraphs 2, 3 (with the exclusion of paragraph 3.2) and 4 is
dismissed.
2. Judgment is reserved in respect of the remainder of the relief sought.’
Consequently, the respondent was entitled to relocate to Upington with M[...] and the
applicant was not awarded primary care of M[...] as sought pending the finalisation of an
investigation by the Family Advocate that might be ordered.
Evaluation of the evidence and submissions by the parties
[7] The application is considered based on the Plascon -Evans test. I was and still am
satisfied that the respondent ’s version cannot be described as far -fetched and/or
untenable. There is no reason for such a finding. I am satisfied that , already on 31 July
2025, she tried to have a proper conversation with the applicant pertaining to her decision
to relocate to Upington. This is evident from the WhatsApp messages attached to the
affidavits. Instead of having a meaningful conversation, t he applicant threatened the
respondent, saying that he hoped that she was ready for a fight and that his attorney was
fully aware of her history. He even told her that they would see who would win this round
and added ‘game on’. It is just unbelievable that the applicant acted with so much
aggression and arrogance, trying to equate proceedings in respect of the best interests of
his child with a fight and/or a game. I got the impression that he regarded M[...] as the
‘trophy’ which he would hold above his shoulders if the ‘fight’ is awarded to him.
[8] I am satisfied that the applicant knew , already on 31 July 2025, that the
respondent intended to relocate. At best for him, he knew by Friday afternoon, 8 August
2025 that the respondent intended to relocate the next weekend, ie the weekend of 15 to
2025 that the respondent intended to relocate the next weekend, ie the weekend of 15 to
17 August 2025. He responded at 15h13 that afternoon by informing the respondent that
he did not consent to M[...]’s relocation from Bloemfontein. Yet, he waited until Thursday,
14 August 2025, nearly a week later, to issue his application.
[9] The respondent was at all relevant times the primary caregiver of M[...], ie for the
nearly six years of her life. The relationship between the parties broke down prior to the
respondent giving birth to M[...] . On 1 February 2021 a maintenance order in respect of
M[...]’s maintenance was issued against the applicant . In October 2021 the parties
entered into an inter partes agreement in terms whereof they agreed to be co- holders of
parental responsibilities and rights in respect of M[...] and that she would reside with the
respondent, subject to certain contact rights granted to the applicant. These included the
right to fetch M[...] after school on Tuesdays and Thursdays until 20h15 on those
evenings and the right to have sleepover contact every alternative weekend.
[10] On the applicant’s version he always wanted M[...] to be in his primary care, but
had been advi sed by his attorney to first of all build a relationship with M[...] in order to
pursue his quest to achieve his goal . This version must be seen in light of the fact that it
is not his case that he has made a request in the past to be clothed with M[...]’s primary
residency. Only now that the relocation has become a reality, the applicant seeks urgent
and immediate primary residence of M[...] pending finalisation of a report by the Family
Advocate. It cannot be in M[...]’s best interest s to grant the applicant such drastic relief,
even on an interim basis. There is not a shred of evidence that M[...] suffered any harm
while in the respondent’s care. There is no indication on the papers that the applicant has
had M[...] in his care for longer than a weekend at a time.
[11] Notwithstanding the applicant’s allegations about the respondent ’s relationship s
with other men, I accept that she has been in a stable relationship with her fiancé, N […]
V[…] d[…] B[…]. She is also nine weeks pregnant with her fiancé’s child and they desire
V[…] d[…] B[…]. She is also nine weeks pregnant with her fiancé’s child and they desire
to build a life together. Both the respondent and her fiancé have obtained business
opportunities in Upington and there is no reason to believe that these would not bear any
fruit in the future.
[12] The applicant has no support system in Bloemfontein. He did not explain how he
would be able to cope if M[...] is placed in his primary care. The papers reveal that he is a
distribution manager who is required to work out of Bloemfontein for a couple of days per
month.
[13] M[...] suffers from extreme allergies and severe asthma to such an extent that she
has been hospitalised recently. The applicant’s attitude pertaining to who should remain
in hospital with M[...] during her stay is an eye-opener. He insisted that she should be the
one because ‘that is what other mothers do’. If he really believed that the respondent was
not a good mother who did not care for her child, he might have offered to sleep over in
the hospital for one or two or more nights during M[...]’s hospitalisation. Clearly, he did
not accept that he as the father has obligations in this regard as well.
[14] I accept that society’s belief that maternal preference should be given to primary
care of children in their tender years has changed over the last three decades. Several
courts have emphasised that parenting is a gender -neutral function and that fathers are
often in as good a position than mothers, and even better, to be awarded primary care of
young children.
1
[15] Section 6 of the Children’s Act 38 of 2005 (the Children’s Act) provides that the co-
holder of parental responsibilities and rights must be informed of any action or decision
concerning the child that could significantly affect the child. Although this would include
relocation of the child, it is emphasised that the Children’s Act does not expressly
regulate interprovincial relocation. No express consent is required. More about this later.
Section 28(2) of the Constitution stipulates that the best interests are of paramount
importance in every matter concerning a child. Section 7 of the Children’s Act tabulates
the factors to be considered in order to establish the best interests of a child. In view of
the decision arrived at herein, I do not intend to deal with the fourteen factors contained
in s 7(1), but confirm that I have taken them into consideration.
[16] This is not a case where the respondent wants to emigrate to another country. In
such a case, s 18(3)(c)(iii), read with s 18(5) of the Children’s Act is applicable. I quote:
‘(3) Subject to subsections (4) and (5), a parent or other person who acts as guardian of a child
must-
(a) . . .
(b) . . .
(c) give or refuse any consent required by law in respect of the child, including-
(i) . . .
1 Van der Linde v Van der Linde 1996 (3) SA 509 (O) 515A -516A, recently referred to with approval in
Potgieter v Potgieter [2007] ZASCA 47; [2007] 3 All SA 9 (SCA); 2007 (5) SA 94 (SCA) para 26.
(ii) . . .
(iii) consent to the child's departure or removal from the Republic;
(iv) . . .
(v) . . .
(4) . . .
(5) Unless a competent court orders otherwise, the consent of all the persons that have
guardianship of a child is necessary in respect of matters set out in subsection (3)(c).’
[17] It is a useful exercise to consider the authorities dealing with a party’s intention to
emigrate and to take the minor children with them. The Supreme Court of Appeal dealt in
F v F2 with the best interests of the children in a case of emigration. I quote:
‘[10] In deciding whether or not relocation will be in the child's best interests the Court must
carefully evaluate, weigh and balance a myriad of competing factors, including the child's wishes
in appropriate cases. It is an unfortunate reality of marital breakdown that the former spouses
must go their separate ways and reconstitute their lives in a manner that each chooses alone.
Maintaining cordial relations, remaining in the same geographical area and raising their children
together whilst rebuilding their lives will, in many cases, not be possible. Our Courts have always
recognised and will not lightly interfere with the right of a parent who has properly been awarded
custody to choose in a reasonable manner how to order his or her life. . .
[11] From a constitutional perspective, the rights of the custodian parent to pursue his or her own
life or career involve fundamental rights to dignity, privacy and freedom of movement. Thwarting a
custodian parent in the exercise of these rights may well have a severe impact on the welfare of
the child or children involved. A refusal of permission to emigrate with a child effectively forces
the custodian parent to relinquish what he or she views as an important life-enhancing
opportunity. The negative feelings that such an order must inevitably evoke are directly linked to
the custodian parent's emotional and psychological well -being. The welfare of a child is,
the custodian parent's emotional and psychological well -being. The welfare of a child is,
undoubtedly, best served by being raised in a happy and secure atmosphere. A frustrated and
bitter parent cannot, as a matter of logic and human experience, provide a child with that
environment. . .’
[18] No doubt, as the court held in F v F , in such matters the criteria to be applied is
2 F v F [2005] ZASCA 123; [2006] 1 All SA 571 (SCA); 2006 (3) 42 (SCA) paras 10 and 11.
always the best interests of the children which are paramount. However, such best
interests always depend on the facts of the particular case.
[19] I accept that the respondent has made a major decision involving M[...] as this will
affect contact between M[...] and the applicant as co -holder of parental responsibilities
and the rights. As stated above, the applicant’s consent is not required for the respondent
to relocate. Section 31(2) of the Children’s Act reads as follows:
‘(2)(a) Before a person holding parental responsibilities and rights in respect of a child takes any
decision contemplated in paragraph (b), that person must give due consideration to any views
and wishes expressed by any co-holder of parental responsibilities and rights in respect of the
child.
(b) A decision referred to in paragraph (a) is any decision which is likely to change significantly, or
to have a significant adverse effect on, the co-holder's exercise of parental responsibilities and
rights in respect of the child.’ (Emphasis added.)
Clearly and contrary to s 18(3), s 31(2) does not require the applicant’s consent for the
respondent and M[...] ’s interprovincial relocation, as would be the case in the event of
emigration from South Africa.
[20] The evidence placed before the court is not to the e ffect that the respondent’s
relocation is unreasonable or mala fide. I am satisfied that the respondent wanted to
discuss the matter in a reasonable manner, but the applicant was not prepared to
consider her circumstances in a positive light. The applicant has his misgivings about the
business opportunities provided to the respondent, trying to say that she did not have any
capital to buy shares in a new enterprise. However, this is not the issue. The respondent
has accepted an employment offer allowing her to work half -day at a net salary of
R25 000 per month. She is to receive a company vehicle and free accommodation. She
R25 000 per month. She is to receive a company vehicle and free accommodation. She
has already enrolled M[...] in the O[...] N[...] Primary School. Although she has not filed an
application to the court for consent to relocation and to enrol M[...] in this particular
school, the logical consequence of the dismissal of the applic ant’s application is that she
as primary caregiver was entitled to enrol M[...] at that school. In the interests of certainty,
I shall grant consent to M[...]’s enrolment at the aforesaid school . Let it be clear: the
applicant did not express any negative thoughts in this regard in his replying affidavit.
[21] The applicant tried to hold the respondent captive in Bloemfontein insofar as he
insisted that M[...] should remain behind with him. This was a mala fide attempt to
prevent the respondent to undertake new employment opportunities and to follow her
fiancé. He cannot insist that they live at close proximity to him . Satchwell J stated the
following in LW v DB
3 with which I fully agree:
‘Our courts have not been appointed the guardians of adults and parents are not the prisoners of
our courts.’
The respondent’s relocation is in line with the increasing trend of people’s geographical
mobility. It is not strange for people not to stay in their town of birth for the remainder of
their lives.
[22] The Office of the Family Advocate is inundated with request s and orders for
reports pertaining to the best interests of children. This is clearly not a matter to be dealt
with by the Family Advocate. The respondent has always been the primary caregiver of
M[...] and no issues have been raised by the applicant to indicate that the best interest s
of M[...] would be negatively affected as a result of the relocation. The only concern is
that the applicant might not be able to have contact with M[...] as regularly as in the past.
Therefore, I decided, after indicating my intention to the legal representatives during oral
argument, to amend the contact rights in line with those normally recommended by the
Office of the Family Advocate. My order is an attempt to ensure that the relationship
between the applicant and M[...] is not prejudiced as a result of the relocation.
[23] The respondent offered in the email correspondence between the parties prior to
launch of these proceedings that she would be prepared to make a contribution towards
the applicant’s travelling costs in order to exercise his contract rights after relocation. This
offer was not accepted. During argument her counsel made it clear that such offer would
offer was not accepted. During argument her counsel made it clear that such offer would
not be repeated. In my view, the respondent’s offer is further proof of her bona fides . The
applicant should blame himself and his legal representatives for rejecting it.
[24] I decided to hear the matter as an urgent application for the sole reason that I
3 LW v DB 2020 (1) SA 169 (GJ) para 52.
wanted to ensure that the best interest s of M[...] could be properly considered. As
mentioned, if the application was not about her best interes ts, I would have struck the
application from the roll due to lack of urgency. The applicant has not achieved any
success, save insofar as I decided to increase his contact rights in order to be fair to both
parties and in the best interest s of M[...]. The applicant , being the unsuccessful party ,
should therefore be liable for the respondent’s costs of opposing the application, such
costs to include counsel’s fees taxed on scale B.
Order
1 The relief claimed in paragraphs 5, 6 and 7 of the notice of motion is dismissed.
2 Paragraph 1.3 of the inter partes agreement between the parties pertaining to inter
alia rights of contact is amended by deleting the sub- paragraphs and substituting same
with the following:
‘1.3.1 the father shall have contact rights in respect of M[...] every alternative weekend
from Friday, 14h00 until Sunday, 18h00;
1.3.2 from the 2026 school year the father and mother shall equally share the long
school holidays, Christmas to alternate between them, whilst the short school holidays
shall alternate between them, the father having the right to have M[...] with him for the
September/October 2026 holiday;
1.3.3 the father shall ensure that the periods mentioned in paragraph 1.3.2 above shall
correspond with his annual or unpaid leave;
1.3.4 the father shall be responsible for his own travel ling and/or accommodation costs
in order to exercise his rights contained in paragraphs 1.3.1 and 1.3.2 above;
1.3.5 the father shall have three hours contact with M[...] on her birthday and Father’s
Day if these do not coincide with a normal contact weekend or school holiday;
1.3.6 the father shall have regular telephonic/video call contact with M[...] on Mondays,
Wednesdays, Fridays and Sundays between 16h00 and 19h00 during the time that she is
not staying with him.
not staying with him.
3 Leave is granted to the respondent to enrol M[...] at O[...] N[...] Primary School in
Upington.
4 The applicant shall pay the respondent’s costs of opposition of the application,
inclusive of the fees of counsel on scale B.
J P DAFFUE J
Appearances
For the applicant: E Lubbe
Instructed by: McIntyre Van Der Post, Bloemfontein.
For the respondent: M Froneman
Instructed by: Peyper-Botha Attorneys, Bloemfontein.