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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: 072224/2025
DATE: 16-09-2025
(1) REPORTABLE: YES / NO.
(2) OF INTEREST TO OTHER JUDGES: YES / NO.
(3) REVISED. 10
In the matter between
P[…] R[…] Applicant
and
K[…] A[…] Respondent
J U D G M E N T
20
VON LUDWIG , AJ: This application arises out of a divorce
which finally came to fruition one year three months and
three days ago in terms of an order granted by my learned
brother Malindi J.
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It is evident that the order came pursuant to a
lengthy trial. At this stage I pause to point out that as are
we all as judges of the high court my learned brother
Malindi acted in his capacity inter alia as upper guardian of
the minor child who is the subject of this application. And
the order which he gave was given in that capacity.
I go back in history to note the fact that, and I do
not have the exact date but many years ago the parties
already concluded a parenting plan dealing with their
respective parental responsibilities and rights in respect of
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N[…] who is now 14.
This tells us in light of the constraint that I must
look at this matter holistically and its totality that there were
already issues between the parties with regards to the
parenting of their daughter.
The parties were married and as of normality one
would expect to find both parents reflected on the child’s
birth certificate so much so that I had cause to go back over
the papers in light of one of the submissions made to me in
the course of the arguing of this matter to find out whether
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this was perhaps initially a matter in terms of which the
father acquired his rights pursuant to section 21 of the
Children’s Act and was the father of a child born out of
wedlock. I was surprised to remind myself that the parties
were in fact married to each other and as such
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automatically in law are co holders of full parental
responsibilities and rights in respect of their daughter. I
pause to emphasise that the parties are in court and I
pause for their benefit to emphasise that fact in law.
I am somewhat shocked to see the judgment
granted a number of years ago in respect of N […]’s birth
certificate. As was correctly submitted to me by counsel for
the applicant it is a judgment. It is not something which a
party can decide or not decide to comply with. It is a
judgment and some, because of the slowness of my
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computer I do not have that judgment in front of me but a
number of years in excess of 10 years has expired with
noncompliance.
My attention has been brought to an e -mail
addressed by the respondent to the applicant in which in
essence she says,
“I have taken steps and it is not that I am
not willing to take steps to put you on the
birth certificate .”
And she contends that that exculpates her from a
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wilful and mala fide breach, lack of intention to comply with
that court order. There is no explanation most particularly
because that affidavit is a recent affidavit and because
there is no string of documents placed before me showing
any real reason why this has not been done or could not be
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done or w hy this serves as any form of excuse or reason to
have basically ignored the judgment of my brother Willis J
as he then was.
Surprisingly the applicant has not sought an order
that the respondent is declared in contempt of court for the
non- adherence to the Willis order . As was submitted to me
by the applicant I do have the power mero motu to find the
applicant in contempt of court and I do so. It is not
necessary for me to direct adherence to an order which
already exists. The Willis order exists and I remind the
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respondent to adhere to it.
In that regard I find that the respondent is in
contempt of court for failure to adhere to that order and I
make the following order cognisant that a monetary order in
the circumstances of this matter is probably going to do
nothing other than prejudice the minor child who is at the
heart of the matter .
I accordingly impose on the respondent t wo
weekends imprisonment commencing on a Friday at 5PM
until a Sunday at 5PM in terms of which the station
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commissioner of the police station within which the
respondent resides is duly authorised to do all things
necessary to detain the respondent and take her into
custody and the officer commanding of the either holding or
detention or prison facil ity to which that station commander
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deems it best to take the respondent is hereby authorised to
detain the respondent and hold her in custody accordingly.
I suspend this sentence for a period of three
months to enable the respondent to comply with the order of
Willis J to procure that the details of the applicants are
recorded on N […]’s birth certificate.
Insofar as the applicant is required to sign any
document or attend at any place by the relevant government
department who has to attend to this registration it is
incumbent on the respondent to give him timeous and
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proper notice of what he must do, on receipt of which he is
ordered to comply therewith. Failing which it still and
nonetheless remains the obligation of the respondent to
procure compliance with the Willis J order.
I move now to what has been commonly referred to
as the Malindi order and I move to the draft order presented
to me by applicant. My finding in that regard is as follows:
I declare that the respondent is in breach of the order
granted by the Honourable Malindi J on 20 August 2024
which is hereinafter referred to as the Malindi order.
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I pause to point out that this order is more than a
year old. This order included provisions for tranc hes of
graduate d contact over three monthly periods and as a
result of that breach the applicant is stuck , to his and the
child’s prejudice, in Period 1 more than a year later , with
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some minor nominal concessions.
I declare as I am required in paragraph 2 that the
respondent has not complied with the Malindi order and I
forthwith direct the respondent to comply with the Malindi
order immediately upon this order being granted. There is
no requirement for this order to be served on the
respondent or the respondent’s legal representatives since
the respondent is represented in Court.
The time periods in the Malindi order have
unfortunately been superseded by the effluxion of time and
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we will have to re- examine them in order that there can be
no confusion and we will have to find new time periods.
The first period of three months is deemed to have
expired. The contact as provided for in the second period
of three months will commence from 1 October and run for
the months of October, November and December 2025 with
the addition that because there is a school holiday over the
period December and January the applicant will have the
child with him for two periods over that school holiday of
five days and five nights each. Those periods will be
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determined by the parenting coordinator.
The second period will then run through January,
February and March by which time the parenting coordinator
is expected to have final recommendations for the parties.
If the parenting coordinator does not have such final
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recommendations for the parties by the end of March the
parties may return to this Court if need be.
I hereby appoint Doctor Martin Str ous or any
person nominated by him to act as the parenting coordinator
to facilitate contact between the applicant and the minor
child in accordance what I will call the updated provisions
of the Malindi order as I have just ex pounded them.
The parenting coordinator shall be vested with the
powers contained in paragraphs 5.1 to 5. 8 of the draft order
which is filed by the applicant on CaseLines in pocket 074
10
at pages 2 to 5 which will be extrapolated and incorporated
in this judgment.
Following the Malindi order the parties will be
responsible for the costs of the parenting coordinator in the
proportions 70 percent applicant/father and 30 percent
respondent/mother.
I further direct that the parties will both make
contact with Dr Str ous and advise him of the terms of this
order whether or not a hard copy of this order is available
at that stage on CaseLines withing 10 ordinary days from
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date hereof and secure from him his advice as to whether
he is able to take up this position on these terms. If he is
able to take up this position and if he is able to arrange an
appointment to meet with the parties by no later than the
end of October he shall continue as the parenting
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coordinator.
If he is not he shall be asked to appoint an
alternative parenting coordinator to whom exactly what I
have said herein thus far shall apply. The parties shall then
both meet with that alternative parenting coordinator on a
date and at a time suitable to that parenting coordinator by
no later than the end of October 2025. The parties shall
thereafter cooperate with the process of that parenting
coordinator.
The first task of that parenting coordinator shall be
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to appoint a therapist for the bonding process between the
applicant/father and the minor child. The costs of that
therapist insofar as they may not be covered by the
respondent’s medical aid shall likewise be borne by the
parties in the shares 70 percent applicant, 30 percent
respondent.
I have made this a judgment and not just an order
and the order will be crispl y cut from the judgment and
given separately on the terms that I have set out herein just
for simplicity for the parties, but I have made this a
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judgment because there are a number of points I wish to
observe.
It is trite to anybody practi sing in the field of family
law how difficult it is to balance the need to consider the
views and wishes of a minor child as the Children’s Act
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constrains us to do with the obvious rights of a child to be
a child, to remain a child and to be parented by that child’s
parents. Part of a parental responsibility is to promote the
child’s relationship with the other parent. The observation
comes to mind here that the best interest s of a child are not
necessarily always the best interest of a parent.
We often hear the phrase “a bad spouse does not
make a bad parent ”. I do not like the words “bad spouse”
and “bad ” must be used colloquially. It is a lay phrase. No
one is ever a bad spouse. It is assumed that people t ry
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their best. A spouse who has let down another spouse in
interspousal issues is extremely unlikely to be a spouse
who lets down a child and it is very difficult in a divorce
situation not to transplant one’ s feelings for the
disappointment in one’s spouse onto that person as a
parent. That is where parental responsibilities come into
play.
Parents have responsibilities to recognise that a
child has two parents. A child is entitled to both those
parents and it is the obligation of both parents to facilitate a
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coparenting relationship. Hence, my emphasis earlier on
the fact that both parents hold full parental responsibilities
and rights in respect of this lovely 14 years young child.
It is also very difficult in today’s world where
teenagers are 40 as soon as they are 14 to find the correct
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level of imposing parental authority on a child versus
allowing a child to find the child’s feet, the child’s
personality and express the child’s views and wishes. That
unfortunately is the inescapable consequence of being a
parent. The sooner parents in this matter and every matter
understand and accept that the sooner the burdens will be
taken off the shoulders of their children.
I heard during the course of the submissions made
to me submissions that concern me that N […] may be in
certain respects a parentified child. She feels responsible
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to keep the spirit in her home happy and busy and to look
after her mother and her granny who miss her when she is
gone. That is not N […]’s responsibility.
On the assumption that both parents are doing
everything in their power to do what they believe is best for
their children, the parents must remember that this is not a
fully subjective “ me, me, me ” exercise to an extent this is
an objective “what is generally best for children albeit that
this is my child ” exercise. We do not want a parentified
child. We do not want a child who feels weighed down by
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the burden of having to make adult decisions. Those are
hard enough when you are an adult.
Ideally we do not want a child living in a home
which is predisposed against an ex -spouse whe ther the
alienation is deliberate or alienation is inadvertent , whe ther
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the gatekeeping is deliberately restrictive or it is well
intentioned, whe ther the coa ching comes about subtly or
deliberately , it is unfortunately abundantly clear to this
Court that N […] is being subtly , and I choose to hope
unintentionally , influenced to not want to spent time with her
father. For this reason alone she has to go into therapy to
be allowed to address her issues.
If arrangement s have not been made for N[ …] to
have commenced therapy by mid- November 2025 the
applicant may return to this Court on supplemented papers 10
seeking an order for contempt against the respondent. It
takes both parties to give their consent and to cooperate in
the appointment of a therapist for a child. Both parties are
ordered to do so.
I am not asked at this stage to find the respondent
in contempt of the Malindi order . I do not believe it
necessary for me to give the applicant the power to return
to Court on supplemented papers. The applicant has that
right. An application for contempt of court will be a
composite of what has gone before, a composite of this
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judgment and all that is said and anything else with which
applicant believes he can make out his case. Likewise an
opposition to any such application will be the respondent’s
version of how she has indeed tried and how she has
indeed done what she believes is best for N […].
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Because the C hildren’s Court has been involved, I
find it necessary to adjudicate on that as well. There is no
reason why the attorney appointed for the child and the
social worker appointed by the C hildren’s Court cannot
liaise with the parenting coordinator as was submitted on
behalf of the applicant.
I accordingly order that a copy of this judgment and
the order that will arise out of it shall be served by either of
the parties within 30 days from date hereof on the
Children’s Court simply by inserting it into the C hildren’s
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Court file and securing a stamp , and on the L egal Aid
attorney appointed for the child, and on the social worker
extracts of whose report was read into the record today.
That brings me to the final issue of costs. In my
view , and certainly it has been my intention to show , that it
is the applicant who has been significantly successful in the
relief that he has sought today. There is no reason in my
view to diverge from the norm that costs shall follow the
result . The only question is what sort of costs.
Given that I am advised that the respondent already
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has a cost s order against her , that it is her submission
(although I do not find merit in that submission) that experts
had not been appointed because of the costs , and given
that the applicant has not pushed for contempt .
Given also that I on the reading of the papers had a
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leaning to mero motu find the respondent in contempt and I
am resisting that leaning. And given that I am not
persuaded by the respondent’s reasons for not adhering to
the Malindi order I say simply that the respondent is getting
a very lucky break when I do not make an attorney and
client cost order against her.
It is not for me to tell a future court what to do and
I would not have the temerity to try and do so, but I would
imagine that a court dealing with a future contempt
application and reading this judgment would then make an
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attorney client cost order against the respondent.
- - - - - - - - - - - -
Accordingly my order as regards costs is that the
respondent is ordered to pay the costs of this application
inclusive of the cost of counsel on Scale B and that is
obviously on a party and party scale.
- - - - - - - - - - - -
In closing of my judgment , (apologies I see counsel
ready to jump to their feet and say “as the Court pleases ”)
I express the hope, and I really do, I believe I have
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a duty as the upper guardian of minor children and because
I have the opportunity with the parents in court - your
daughter is 14. She is not yet an adult but what happens to
her in her childhood years will influence the type of adult
she is going to be. I express the earnest and profound
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hope that with or without the help of your legal
representatives you can find some common ground in
sharing the parenting. I like that word in “ sharenting” . I
just found a new word. Can we use it? In sharenting,
shared parenting of your beautiful daughter in her best
interests.
I conclude this judgment now. We will extract the
order as a separate document just to make it clear but I
conclude this judgment with the words that “ it is in the best
interest of the child that we all do the job we do. I urge the
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parties to remember that ”. Thank you.
- - - - - - - - - - -
ORDER
1. I find t he respondent in contempt of court for failure
to adhere to the Willis J Order;
2. I impose on the respondent two weekends
imprisonment commencing on a Friday at 5PM until a
Sunday at 5PM in terms of which the station
commissioner of the police station within which the 20
respondent resides is duly authorised to do all things
necessary to detain the respondent and take her into
custody and the officer commanding of the either
holding or detention or prison facility to which that
station commander deems it best to take the
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respondent is hereby authorised to detain the
respondent and hold her in custody accordingly.
3. I suspend this sentence for a period of three
months to enable the respondent to comply with the
order of Willis J to procure that the details of the
applicants are recorded on N […]’s birth certificate.
4. Insofar as the applicant is required to sign any
document or attend at any place by the relevant
10
government department who has to attend to this
registration it is incumbent on the respondent to give
him timeous and proper notice of what he must do, on
receipt of which he is ordered to comply therewith.
Failing which it still and nonetheless remains the
obligation of the respondent to procure compliance
with the Willis J order.
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5. I declare that the respondent has not complied with
the Malindi order and I forthwith direct the respondent
to comply with the Malindi order immediately upon this
order being granted. There is no requirement for this
order to be served on the respondent or the
respondent’s legal representatives .
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6. The first contact period of three months is
deemed to have expired. The contact as provided for
in the second period of three months will commence
from 1 October 2025 and run for the months of
October, November and December 2025 with the
addition that because there is a school holiday over
the period December and January the applicant will
have the child with him for two periods over that
school holiday of five days and five nights each.
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Those periods will be determined by the parenting
coordinator.
7. The next period will then run through January,
February and March by which time the parenting
coordinator is expected to have final recommendations
for the parties. If the parenting coordinator does not
have such final recommendations for the parties by the
end of March the parties may return to this Court if
20
need be.
8. I appoint Doctor Martin Str ous or any person
nominated by him to act as the parenting coordinator
to facilitate contact between the applicant and the
minor child in accordance herewith.
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9. The parenting coordinator shall be vested with
the powers contained in paragraphs 5.1 to 5.8 of the
draft order which is filed by the applicant on
CaseLines in pocket 074 at pages 2 to 5 which are
incorporated in this judgment and a copy of which
powers shall be downloaded by and shall physically be
provided to the parenting coordinator by the applicant.
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10. The parties will be responsible for the costs of
the parenting coordinator in the proportions 70 percent
applicant/father and 30 percent respondent/mother.
11. I direct that the parties will both make contact
with Dr Strous and advise him of the terms of this
order whether or not a hard copy of this order is
available at that stage on CaseLine s within 10
ordinary days from date hereof and secure from him
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his advice as to whether he is able to take up this
position on these terms. If he is able to take up this
position and if he is able to arrange an appointment to
meet with the parties by no later than the end of
October he shall continue as the parenting
coordinator. If he is not he shall be asked to appoint
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an alternative parenting coordinator to whom this
Order shall apply . The parties shall then both meet
with that alternative parenting coordinator on a date
and at a time suitable to that parenting coordinator by
no later than the end of October 2025. The parties
shall thereafter cooperate with the process of that
parenting coordinator.
12. The first task of th e parenting coordinator shall
be to appoint a therapist for the bonding process
10
between the applicant/father and the minor child. The
costs of that therapist insofar as they may not be
covered by the respondent’s medical aid shall likewise
be borne by the parties in the shares 70 percent
applicant, 30 percent respondent.
13. The respondent is ordered to pay the costs of this
application inclusive of the cost of counsel on Scale B
on a party and party scale
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…………………………
VON LUDWIG AJ
ACTING JUDGE OF THE HIGH COURT
16 September 2025 ex tempore
Received and signed 02 October 2025
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