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 DIVISION, JOHANNESBURG
CASE NUMBER: 2023-010243
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
DATE: 26/9/2025
In the matter between: -
TS Applicant
and
WRS Respondent
J U D G M E N T
DELIVERED: This judgment was handed down electronically by circulation to
the parties’ legal representatives by e- mail and publication on CaseLines. The
date and time for hand-down is deemed to be _____ on 26 September 2025.
F. BEZUIDENHOUT AJ:
INTRODUCTION
[1] The applicant , the mother of two minor girls aged 12 and 11 years
- 2 -
respectively, applied for leave to relocate permanently to the Netherlands .
The minor children have valid Dutch passports and are citizens of the
Netherlands.
[2] The respondent (father) opposed the relocation on the basis that the
decision to relocate was unilateral, it is not bona fide and reasonable and
there is no structured plan in place to facilitate his continued contact with
the children.
[3] By agreement between the parties , educational psychologist, Dr Tania
Holz (“ Dr Holz”) was appointed and mandated to conduct a full
investigation and to furnish a report to the court regarding the best
interests of the minor children and whether or not it is in their best
interests to permanently relocate with the applicant to the Netherlands
and whether the respondent would be ent itled to increase d rights of
contact with the minor children.
[4] On the 5
th of June 2024, Dr Holz published her report, which included her
findings and recommendations. Dr Holz found it not to be in the children’s
best interests to permanently relocate to the Netherlands , and
recommended increased contact between father and children.
ISSUES FOR DETERMINATION
[5] The issue to be decided is whether it would be in the best interests of the
children to permanently relocate with their mother to the Netherlands
despite the recommendations of Dr Holz and if so, what contact
arrangements between the respondent and the children would be in their
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best interests.
SALIENT FACTS
[6] The applicant and the respondent were previously married to each other
and were divorced on the 24 th of February 2017 by a decree of divorce
issued by this Court, incorporating a written agreement of settlement
entered into between the parties.
[7] On the 31st of May 2019 the parties amended the agreement of settlement
in respect of issues pertaining to maintenance.
[8] In terms of the agreement of settlement, the parties remained co- holders
of full parental responsibilities and rights with the children, with primary
residence vesting with the applicant and reasonable rights of contact
afforded to the respondent. The contact was not defined.
[9] In terms of maintenance, the respondent agreed to make payment of
R3 400.00 per month per child, with an annual escalation, and to
reimburse the applicant 50% of the children’s monthly medical aid
premiums and medical excesses. The respondent further undertook to pay
half of all private cr èche, nursery school and school fees, extramural,
sporting, cultural and academic activities and half of all fees, books and
equipment relating to the children’s tertiary education at any university,
college, art, computer or secretarial school.
[10] The varied agreement of settlement provided for, inter alia: -
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10.1 The payment of R3 000.00 for both children;
10.2 Medical aid contributions to remain in force;
10.3 The payment by the respondent of R3 695.48 towards school
fees;
10.4 After school activities for both children to be paid by the
applicant;
10.5 The respondent to pay 50% of the children’s school uniforms and
for the payment of any extraordinary costs in respect of the
children;
10.6 The respondent would no longer be responsible for payment of
the children’s swimming lessons.
[11] The respondent further agreed to incur no further debt whatsoever and he
undertook to not spend his monthly income recklessly.
[12] For approximately 18 months after the divorce order was granted, the
respondent exercised contact with the minor children as follows: -
12.1 In week 1 by collecting the children after school on Friday and
returning them to school, alternatively to the applicant’s care, on
the immediately succeeding Monday;
12.2 In week 2 by collecting the children on a Monday after school and
returning them to school, alternatively to the applicant’s care, the
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following morning;
12.3 For half the duration of every long school holiday;
12.4 Every alternate short school holiday.
[13] Subsequently, the applicant married her current husband and in July 2022
the respondent requested increased contact with the children.
[14] In or about July 2021 the respondent relocated to Pretoria and has
resided there ever since, with the applicant, her husband and the children
living in Johannesburg. The respondent’s relocation impacted on the
children’s contact with the respondent as he now lives approximately
41 km away from the children’s school.
[15] The applicant has raised a number of concerns regarding the children’s
welfare when the respondent exercises contact with them. This of course
is denied by the respondent.
THE APPLICANT’S CASE
[16] On the 14 th of October 2022 the applicant instructed her legal
representatives to address a letter to the respondent informing him of
some of her concerns regarding the well -being of the children and her
intention to permanently relocate to the Netherlands. The respondent was
informed that the applicant had travelled to the Netherlands to investigate
the country and the respondent was provided with some initial and
preliminary information regarding the Netherlands and the applicant’s
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intention to relocate there.
[17] The applicant also suggested to the respondent that they jointly agree to
appoint, and equally bear the costs, of a suitable psychologist to conduct
a forensic assessment of the children’s circumstances and provide
recommendations regarding the best interests of the children, the
structure of parental rights and responsibilities going forward and whether
it would be in their interests to accompany the applicant permanently to
the Netherlands.
[18] The respondent instructed his legal representatives to respond on the
21
st of October 2022. The respondent declined his consent for a relocation
with reasons to follow later.
[19] On the 4 th of November 2022 the respondent, via his legal
representatives, premised the respondent’s objection to a relocation on
inter alia the following: -
19.1 The applicant conducted herself in an impulsive manner with
regard to the intended relocation;
19.2 The applicant disregarded the best interests of the minor children
in proposing an intended relocation;
19.3 The applicant’s proposal was entirely dismissive of the
respondent as the father of the minor children and the
acknowledgement of a very special bond between father and
daughters;
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19.4 Should the applicant insist on a forensic assessment to be
conducted, the respondent would require that it includes the
respondent’s request for increased contact with the children.
[20] A letter in reply was addressed by the applicant’s attorneys calling upon
the respondent to reconsider the issues and reminding him that it was he
who had initially told the applicant to relocate the minor children from
South Africa and to the Netherlands during 2021.
[21] Subsequently, due to no consensus reached between the parties, the
applicant instituted the present proceedings. She initially brought the
application by way of a part A and a part B, part A dealing with the
appointment of a psychologist to conduct a forensic assessment.
[22] The respondent opposed the application and filed a notice of
counter-application calling upon the Family Advocate to conduct an
investigation regarding the best interests of the children and the
applicant’s intended relocation to the Netherlands. The counter-application
further sought the appointment of an independent psychologist to conduct
a full investigation and to furnish a report to the Court regarding the best
interests of the children regarding the issue of relocation and whether or
not the respondent’s contact with them ought to be increased.
[23] Ultimately, the parties agreed to the appointment of Dr Holz, which
appointment was not made an order of Court in order to save costs.
[24] In the founding papers the applicant raised certain concerns regarding the
political circumstances and the safety issues prevailing in South Africa.
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She recorded concern regarding service delivery, declining infrastructure
throughout the country, the unabated electricity and loadshedding crises
and the declining value of the Rand. She also informed the Court that the
minor children have been exposed to a break -in which occurred on
18 March 2018, an attempted kidnapping on 22 August 2022 and two
further attempted break-ins during October 2022 and November 2022.
[25] The applicant states that although the respondent is obliged to contribute
towards the maintenance of the children in accordance with the varied
agreement of settlement, he has failed to comply with his maintenance
obligations and has accumulated arrears of approximately R272 796.54.
[26] As a consequence of his failure to fulfil his maintenance obligations, the
applicant has had to try and cater for the minor children’s maintenance
needs, including but not limited to their educational and medical
expenses, without adequate contributions from the respondent. The
applicant stated that she is unable to financially sustain herself and the
children in South Africa without receiving maintenance from the
respondent, but that if they were to relocate to the Netherlands, she
would be able to financially look after herself and the children.
[27] The applicant mentioned a number of factors which would increase the
quality of life the children would experience in the Netherlands and she
also dealt with the living arrangements in the Netherlands submitting they
would live in a family friendly area in the Netherlands called Harlem,
which is easily accessible by public transport, but is also bicycle friendly.
There are many parks and recreational activities and beaches that are
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close by. There is also a well-developed international community and well-
established support groups for expats.
[28] The applicant states that her and her husband have friends and family in
the Netherlands and that she would like to build on those relationships
and form new ones. The applicant mentioned the family and friends by
name.
[29] As far as education is concerned, the applicant informed the Court that
the children’s private school expenses in South Africa are high and the
cost has been exacerbated because of the respondent’s failure to
meaningfully contribute. On the contrary, the Dutch Government funds
primary, secondary, vocational and higher education in the Netherlands
and as Dutch citizens, the minor children would be entitled to receive a
high standard of education at no cost.
[30] The applicant listed specific schools which she has identified as
appropriate for the children and in order to bridge the gap between
English and Dutch, the applicant indicated that the children would be
required to attend a “taalschool” initially.
[31] As far as medical cover is concerned, in the Netherlands it is a
requirement that all members of the public must take out and retain
appropriate health insurance. The applicant fully researched the options
available to her and the children which is commensurate to the cost of
medical aid offerings of a similar level in South Africa.
[32] The applicant is presently employed as Chief Executive Officer of a public
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company bearing the family name, which his focussed more on its efforts
in its European market and operations which are currently situated in
Rotterdam, the Netherlands. It is the intention of the company that the
applicant’s relocation would fulfil the purpose of helping grow the
company’s business internationally and specifically in Europe. The
applicant will hence transfer to the Netherlands division of the company
and earn sufficient income to maintain herself and the children. Also, her
relocation costs will be financed, wholly or in part, by the company and its
European division.
[33] The applicant has provided intricate detail regarding the cost of living in
the Netherlands for the purpose of proving that her monthly income would
be more than adequate to her and the children’s daily maintenance needs.
[34] As far as contact with the children is concerned, the applicant proposes
that the respondent would be entitled to exercise contact with the children
in accordance with a draft order uploaded onto CaseLines. The contact
includes contact with the children in South Africa, as well as in the
Netherlands and reasonable and unfettered daily electronic contact.
RESPONDENT’S OPPOSITION
[35] The respondent states that he has established a strong relationship with
the children and that if the applicant relocated to the Netherlands, it
would not continue.
[36] The respondent states that the applicant has failed to appreciate that
there is no denying that the strong bond and attachment exists between
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him and the children. Hence he states that it is inconceivable that a move
to the Netherlands would not render this bond and attachment vulnerable
to rupture.
[37] The respondent complains that the applicant has repeatedly frustrated the
process of communication between him and the children and although he
has requested increased contact with the children since July 2022, these
requests have fallen on deaf ears.
[38] A loving relationship between a father and his children, according to the
respondent, cannot endure in the same way when he would only be
afforded around 21 days out of 365 days of contact.
[39] Accordingly, the respondent contends that it would be to the detriment of
the children to relocate to the Netherlands as he, as a father , would be
unable to attend their extramural and sporting activities for which he has
always been present to encourage them, to be a shoulder to cry on when
times are tough, to teach them all the things a father is privileged to
teach them face -to-face, and enjoying the biweekly weekend activities of
braaiing, weekends away with family which they have strong bonds with,
going to movies together, camping, dog day outings, hiking and some of
the more simple things like playing cards, Monopoly, indoor days or
watching movies or cooking together, to name a few.
THE FINDINGS AND RECOMMENDATIONS BY DR HOLZ
[40] I have considered the full extent and reasoning of Dr Holz’s report and
recommendations. For purposes of this application and the order I intend
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to make, it is instructive to extract some of the salient points of Dr Holz’s
findings: -
40.1 Regarding parenting, Dr Holz states that it is clear that the
applicant and the respondent both deeply love their children
and care about them and their emotional, social and scholastic
wellbeing. While within the family dynamics there appears to
be an alliance between the respondent and the minor KS and
the applicant and the minor MS, both children are equally and
securely attached to their parents;
40.2 KS and MS further have what they appear to perceive as a
healthy relationship with their parents’ partners;
40.3 The children have experienced ongoing physical and academic
challenges, kidney reflux, sensory integration issues and
academic challenges on the one hand and levels of anxiety and
a tendency to perfectionism on the other. There also appears
to be high levels of sibling rivalry between them;
40.4 The current parental acrimony has resulted in both children
experiencing what appears to be internal chaos and confusion
in terms of how to psychologically navigate current escalating
co-parental acrimony and conflict;
40.5 The applicant does not appear to have comprehensively
considered the financial implications of the respondent’s
contact with the children should she relocate with the children;
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40.6 The applicant does not appear to have considered the impact
on the children of not having regular contact with their father
and not being in close proximity to him;
40.7 What flows from the investigation is that if the children
permanently relocate to the Netherlands with the applicant,
their relationship with the respondent will be significantly
compromised. As the children are young, their attachment to
the respondent is vulnerable to being ruptured should they not
have the opportunity to continue strengthening their ongoing
attachment to him;
40.8 The children greatly benefit from the nurturing and maternal
care which they receive from the applicant, while much of their
identity and moral compass is strongly linked to the
respondent’s approach to them;
40.9 A positive father -child and father-adolescent relationship
supports health y self-esteem, healthy sociability, levels of
confidence, self-control and identity development;
40.10 A primary factor central to the best interests of children is in
protecting the relationship between the children and both
parents.
[41] Dr Holz recommended, inter alia, that the applicant and the respondent
attend individual psychotherapy to assist them in coping with current
stressors. Furthermore, parent guidance sessions for both parents would
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assist them in maintaining and adopting a co -parenting style which
maintains consistency, predictability and which upholds the best interests
of the children. Dr Holz opines that parent guidance sessions can help
parents evaluate and investigate their co -parenting style regarding efforts
to gain a clearer and deeper understanding of the children and how to
address any behavioural issues which may present. Due to what Dr Holz
calls an irreparable breakdown in the co-parenting relationship, the
appointment of a parenting coordinator is recommended.
[42] The applicant rejected Dr Holz’s recommendations, for reasons dealt with
in the affidavits filed of record and in the heads of argument, whilst the
respondent accepted them.
APPLICABLE LEGAL PRINCIPLES
[43] Sections 18(3)(c)(iii) and 18(5) of the Children’s Act, 38 of 2005 provide
that the consent of all the persons that have guardianship of a child is
necessary in respect of the child’s removal from the Republic. However,
section 18(5) also makes express provisions that a competent Court may
order otherwise.
[44] Our Courts have repeatedly laid down the principles governing when a
Court should grant a relocation order.
[45] The principles applicable to relocation s are helpfully summarised by
Satchwell J in B v M:
1 -
1 [2006] 3 All SA 109 (W).
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“(a) The interests of children are the first and paramount
consideration.
(b) Each case is to be decided on its own particular facts.
(c) Both parents have a joint primary responsibility for raising
the child and where the parents are separated, the child has
the right and the parents the responsibility to ensure that
contact is maintained.
(d) Where a custodial parent wishes to emigrate, a court will not
likely refuse leave for the children to be taken out of the
country if the decision of the custodial parent is shown to be
bona fide and reasonable.
(e) The courts have always been sensitive to the situation of the
parent who is to remain behind. The degree of such
sensitivity and the role it plays in determining the best
interests of children remain a vexed question.”
[46] The legal principles applicable in relocation cases have also been set out
by the Supreme Court of Appeal (“S CA”) in the majority judgment of
Scott JA in Jackson:
2 -
“It is trite that in matters of this kind the interests of children are
the first and paramount consideration… but what must be stressed
is that each case must be decided on its own particular facts. No
two cases are precisely the same and, while past decisions based
on other facts may provide useful guidance, they do no more than
that. By the same token, care should be taken not to elevate to
rules of law the dicta of judges made in the context of the peculiar
facts and circumstances with which they were concerned.”
2 Jackson v Jackson 2002 (2) SA 303 (SCA), paragraph [2] at 318E-I.
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[47] In deciding whether or not relocation will be in a child’s best interest, the
court must carefully evaluate, weigh and balance a myriad of competing
factors, including the child’s wishes in appropriate cases.3
[48] In Cunningham v Pretorius 4, Murphy J held that in deciding relocation
disputes:
“What is required is that the court acquires an overall impression and
brings a fair mind to the facts set up by the parties. The relevant facts,
opinions and circumstances must be assessed in a balanced fashion and
the court must render a finding of mixed fact and opinion, in the final
analysis a structured value -judgment, about what it considers will be in
the best interest of the child.”
[49] The approach ultimately amounts to a judicial investigation.
[50] The importance of the best interests of the child in all matters concerning
children was articulated by Sachs J in S v M
5 as follows:
“A truly principled child -centred approach requires a close and
individualised examination of the precise real -life situation of the
particular child involved. To apply a pre- determined formula for the
sake of certainty, irrespective of the circumstances, would in fact be
contrary to the best interests of the child concerned.
3 Van Rooyen v Van Rooyen 1999 (4) SA 435 (C).
4 2008 JDR 1022 (T) par 9; see also UR v SB 2024 JDR 0238 (GJ) par [18].
5 2007 (2) SACR 539 (CC) para 24 B-C.
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“What unites these principles, and lies at the heart of section 28 6, I
believe, is the right of a child to be a child and enjoy special care.
…
“Every child has his or her own dignity. If a child is to be constitutionally
imagined as an individual with a distinctive personality, and not merely as
a miniature adult waiting to reach full size, he or she cannot be treated
as a mere extension of his or her parents , umbilically destined to
sink or swim with them . The unusually comprehensive and
emancipatory character of Section 28 presupposes that i n our new
dispensation the sins and traumas of fathers and mothers should
not be visited on their children.” (emphasis added)
[51] In Van Rooyen v Van Rooyen
7 the court said the following:
"Turning to the application for relocation, two preliminary issues arise. The
first relates to the approach of the court in matters of this nature. It is
that there is no onus in the conventional sense. The court will evaluate,
weigh and balance the many considerations and competing factors which
are relevant to the decision whether the proposed change to the children's
circumstances is in their best interest. The court will make an assessment
on the particular children, in other words, it will apply individual justice in
the sense that all the relevant factors, even the mother's fundamental
6 The Constitution 108 of 1996 s 28(1) “A child’s best interests are of paramount importance in every
matter concerning the child”.
7 1999 (4) SA 435 (C).
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right to freedom of movement, will be assessed in the context of these
children's best interest.”
[52] Most importantly when applying the best interests standard in relocation
disputes the critical determination is whether:
8
52.1 such relocation is reasonable, genuine, bona fide and in the best
interests of the children;
52.2 the decision to relocate includes practical and other
considerations;
52.3 the relocating parent has engaged with and properly thought
through the real advantages and disadvantages to the children of
the proposed move.
[53] In Shawzin
9 the court acknowledged the fact that the children leaving the
Republic would cause a break in the close contact which they had with
their father who must remain behind. However, the court referred to the
following compensation: -
“… The bond between them and their father will not be broken. He
will have them every year for a long holiday of six weeks and he is
in a position, financially, to see them in Canada at other times… To
take them away from their mother who has looked after them since
their birth, would obviously have serious psychological
consequences. They are still of an age when they would call for
their mother first if something were to happen to them. A
stepmother, with her own children, even if willing and able to look
8 H.M.F v M.G.W.F 2006 (3) SA 42 (SCA) (1 December 2005).
9 Shawzin v Laufer 1968 (4) SA 657 (A).
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after them, as is the case here, cannot, generally speaking, match
the devotion of a natural mother.”10
[54] In F v F 11 the SCA found that in deciding whether or not relocation would
be in a child’s best interests, the court has to evaluate, weigh and balance
a myriad of competing factors, including the child’s wishes in appropriate
cases.
12 The court went on to state that despite the constitutional
commitment to equality, the division of parenting roles in South Africa
remains largely gender -based. It is still predominantly women who care
for children and that reality appears to be reflected in many custody
arrangements upon divorce. Therefore, the refusal of relocation
applications has a potentially disproportionate impact on women,
restricting their mobility and subverting their interests and the personal
choices that they make to those of their children and former spouses.
13
[55] When it comes to expert evidence, w hen an expert makes
recommendations without providing the proper factual and scientific basis
for such investigation and the recommendations flowing from such
recommendations, the expert fails in his/her duty towards the court.14 It is
the expert’s obligation to ensure that the findings and recommendations
are based on sound, logical and scientifically based reasoning.
15
10 At 669A – D.
11 2006 (3) SA 42 (SCA).
12 Paragraph [10] at 48C.
13 Elsje Bonthuys, Clean Breaks: Custody, access and parents’ rights to relocate (2000) 16
SAJHR 487.
14 Schneider N.O and Others v AA and Another 2010 (5) SA 203 (WCC) at 211J – 212B.
15 Southwood’s Essential Judicial Reasoning in Practice and Procedure and the Assessment of
Evidence (Lexis Nexis) at 7 - 8
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[56] The grounds upon which the opinion is based are not relevant only to
admissibility, but are of special importance in the evaluation of the
opinion.16
[57] An expert witness should remain objective, despite the fact that he/she is
called by a party to testify in support of the latter’s case. The principle
was adopted by South African Courts in the matter of Stock
17 and recently
reaffirmed by the SCA in the matter of Jacobs.18 The SCA had to consider
how to approach conflicting expert opinions. At paragraph [15] the Court
noted as follows: -
“It is well-established that an expert is required to assist the Court,
not the party for whom he/she testifies. Objectivity is the central
prerequisite for his/her opinions. In assessing an expert’s credibility
an appellate court can test his/her underlying reasoning and is in no
worse position than the trial court in that respect. Diemont JA put it
thus in Stock v Stock:
‘An expert… must be made to understand that he is there to
assist the court. If he is to be helpful he must be neutral. The
evidence of such a witness is of little value where he, or she,
is partisan and consistently asserts the cause of the party
who calls him. I may add that when it comes to assessing the
credibility of such a witness, this court can test his reasoning
and is accordingly to that extent in as good a position as the
trial court was’.”
[58] The duty of an expert witness is to provide independent assistance to the
16 S v Wiliams en Andere 1985 (1) SA 750 (C).
17 Stock v Stock 1981 (3) SA 1280 (AD).
18 Jacobs and Another v Transnet Ltd t/a Metrorail and Another 2015 (1) SA 139 (SCA).
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Court through their objective, unbiased opinion about matters within their
expertise. This duty is owed to the Court and overrides any duty to
anyone who is instructing or paying the expert.
[59] It has been held in the matter of Schneider
19 that an expert comes to
Court to give the Court the benefit of his/her expertise. Turning to the
responsibilities of an expert witness, the Court found that he/she must
provide “the court with as objective and unbiased opinion, based on his or
her expertise… An expert is not a hired gun who dispenses his or her
expertise for the purposes of a particular case, nor does he or she assume
the role of an advocate”.
[60] Within the context of this matter and the objection raised by the applicant
to the findings and recommendation of especially Mr Carr, it deserves
reminding that experts are not there for the parties, but for the Court.
Kotzé J put it as follows in S v Gouws:
20
"The prime function of an expert seems to me to be to guide the court to
a correct decision on questions found within his specialised field."
[61] Davis J summarised the role of experts and their reports aptly
in Schreiner NO & Others v AA & Another21 as follows:
"In short, an expert comes to court to give the court the benefit of his or
her expertise.”
19 Schneider N.O. and Others v Aspeling and Another [2010] 3 All SA 332 (WCC).
20 1967 (4) SA 527 (EC) at 528D.
21 2010 (5) SA 203 (WCC) at 211J-212B.
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[62] In RAF v Kerridge 22 Nicholls JA explained the role of the court when faced
with expert evidence:
'The role of experts in matters such as these and the opinions they
provide can only be as reliable as the facts on which they rely for this
information… The facts upon which the experts rely can only be
determined by the judicial officer concerned. An expert cannot usurp
the function of the judicial officer who is not permitted to abdicate
this responsibility - the court should actively evaluate the
evidence. Ideally, expert evidence should be independent and should be
presented for the benefit of the court.”(emphasis added)
DELIBERATION
[63] Relocation by its very nature implies a significant decrease in contact
between the child and the non-relocating parent.
[64] A relocation issue contrasts the relocating parent’s reasonable wish to
better their circumstances by moving against the non -relocating parent’s
reasonable desire to maintain frequent normal and essential contact with
the children.
[65] It is common cause that the children have a very established and strong
relationship with both parents. The respondent has always had reasonable
contact with the children since the parties separated nine years ago and
has never not had any contact. His first request for extended contact was
22 2019 (2) SA 233 (SCA) par [50].
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in July 2022, approximately five years after the decree of divorce was
granted.
[66] It is further common cause according to Dr Holz and according to the
parties that both the respondent and the applicant are good parents and
that the children are equally attached to both of them. Why this close
bond and attachment cannot continue should the children relocate with
their mother to the Netherlands, is not clear from Dr Holz’s findings.
[67] The applicant has considered the impact of the children relocating on the
respondent’s contact. Extended daily video contact, travels to South Africa
with the children at her cost and travelling by the respondent to the
Netherlands at her cost. The applicant also doesn’t expect the respondent
to contribute further towards the maintenance of the children.
[68] The conclusion made by Dr Holz that should the children relocate, their
relationship with the respondent will be compromised because they are
young is also not borne out by the report, bearing in mind that the
children are not toddlers – they are 12 and 11 years old respectively.
[69] The applicant accepts that the influence of a father is important to the
children. His allegations of parental alienation and frustration of contact
are not borne out by the Dr Holz report. Furthermore, there is no evidence
that the relocation will result in the respondent’s influence being
negatively impacted on.
[70] The applicant has accepted that the parental acrimony has resulted in the
children experiencing confusion, in internal chaos and conflict and hence
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proposes the involvement of Dr Mathilda Smit.
[71] Ultimately, it is so that an expert is not a trier of fact. However, the report
seems to elevate the information and version given to her by the
respondent as a fact . There is simply no evidence for this conclusion.
When one considers the world view which both of the children share,
which include the parties, their respective partners and related members
as mentioned, the report states that even the children appreciate the
irrational fear which the respondent holds in this regard.
[72] Although Dr Holz does canvas how the children feel about relocation, the
report is unhelpful in that it fails to weigh up the myriad of other factors
that need to be considered for relocation. Dr Holz seems to have
overemphasized the impact that a relocation would have on the contact
between father and daughters. This is inevitable in any relocation.
[73] In my view, Dr Holz also seems to have underplayed the applicant’s role
as the children’s primary caregiver, and the opportunity presented to her
to progress and grow and secure financial prosperity for her business and
for the children, which would ultimately provide them with a comfortable
lifestyle and the broadening of their horizons.
[74] The Dr Holz report is silent on the factual evidence advanced by the
applicant, which speaks in favour of a relocation, such as being exposed to
an excellent education system as well as the reduction in stress levels
when living in a crime-free environment.
[75] As far as maintenance contributions are concerned, Dr Holz did not
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mention that the respondent will not be required to pay maintenance ,
should the children relocate, and that the applicant has waived the arrear
maintenance owing by him. Dr Holz has also not made enquiries regarding
the applicant’s income package and how it would be beneficial to the
children.
[76] Ultimately, Dr Holz has not expressed any concerns as to the Netherlands
or suggested that the children will not cope in adapting to the Dutch
lifestyle. There is nothing in the report to suggest that the children will not
adapt easily and will not thrive psychologically and emotionally and easily.
Therefore, although the report by Dr Holz has been helpful to this Court,
the recommendation against relocation is not supported by the facts and
findings.
[77] In the circumstances, I am satisfied that the applicant has carefully
considered the ramifications of the move and has done everything
possible to ensure that the move will not be contrary to the children’s
interests and will not result in the relationship between father and children
being negated. In my view, the contact tendered by the applicant to the
respondent will ameliorate the inevitable decrease in contact between the
child and the non- relocating respondent. Accordingly I find that the
relocation of the children with the applicant to the Netherlands would be in
their best interests.
COSTS
[78] It is trite that I have a discretion insofar as the ordering of costs is
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concerned, which discretion I am to exercise judicially. T he respondent,
although initially represented by attorneys, appeared in person at the
hearing. On a conspectus of the reasons for the opposition, and the fact
that the recommendations by Dr Holz did not favour a relocation and
increased the respondent’s contact, I do not find that the opposition was
unreasonable. Accordingly, I am disinclined to apply the ordinary principle
that costs follow the result.
ORDER
I accordingly grant an order in the following terms: -
1. The applican t is granted leave to remove the minor children, KVS and
MBS, permanently from the jurisdiction of this court for permanent
relocation and residence in the Netherlands within three months of the
grant of this order.
2. The respondent’s consent, signature or participation in regard to any steps
required to remove the minor children from the Republic of South Africa to
the Netherlands are dispensed with.
3. The respondent is entitled to exercise contact with the minor children
whilst the applicant and the children reside in the Netherlands, subject to
the children’s religious, educational, social, health and recreational
activities, as follows: -
3.1. Reasonable unfettered daily electronic contact which will include
video contact;
3.2. Half of the duration of the stay of the minor children in South Africa
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in and during the summer holiday whe n the minor children will
travel to South Africa with the applicant, who will be responsible for
the attendant return airline tickets for the children;
3.3. The applicant shall pay for a return air ticket for the respondent to
the Netherlands for the duration of one school holiday annually. The
respondent’s accommodation in the vicinity of the applicant and the
children shall be for his own account. The respondent shall inform
the applicant no later than 3 (three) months in advance of his
decision to visit the children in the Netherlands so that flights may
be secured on his behalf by the applicant;
3.4. The respondent shall be entitled to travel to the Netherlands during
the other school holiday s, be it during the
Autumn/Christmas/Spring or May holidays for the duration of the
holiday to visit the children at his own expense. The respondent
shall notify the applicant of his intention to do so at least 2 (two)
months in advance in order that arrangements can be made to
facilitate this contact.
4. Pending relocation, the respondent shall have the following contact with
the minor children: -
4.1. On alternate weeks from a Friday afternoon when the respondent
will collect the children from the S […] C[…], G[…] at 17:00 and will
return the children on Tuesday morning;
4.2. On alternate weeks on a Monday evening when the respondent can
collect the children from S[…] C[…], G[…] at 17:00 and return them
to school on a Tuesday morning;
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4.3. One half of each long holiday agreed to between the applicant and
the respondent;
4.4. Every alternate short school holiday;
4.5. Every alternate public holiday, provided that the respondent shall
collect the children at 09:00 and return them to the applicant’s care
at 17:00;
4.6. All reasonable telephone contact with the minor children between
17:30 to 18:30 when the respondent can contact either of the
children on their cell phones.
5. The applicant and the respondent shall attend individual psychotherapy to
assist them in coping with current stresses before and after the relocation.
6. The applicant and the respondent shall attend parent guidance sessions to
assist them in maintaining and adopting a co -parenting style which
maintains consistency, predictability and which upholds the best interests
of the children and would assist them further in evaluating and
investigating their co-parenting style regarding efforts in gaining a clearer
and deeper understanding of the children and how to address any
behavioural issues which may present.
7. A senior health practitioner of at least 10 years’ experience shall be
agreed upon by the applicant and the respondent and appointed as parent
coordinator. In the event that they are unable to agree on a particular
individual to fulfil this purpose, then the chairperson of the Gauteng
Family Law Forum, will be requested to nominate a suitable parent
coordinator.
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8. The parent coordinator should serve to mediate, manage and monitor any
potential unhealthy parenting or disputes that may occur between the
applicant and the respondent. The parent coordinator should assist with
any changes to the contact schedule to ensure that the changes serve the
children’s best interests. The applicant and the respondent should
cooperate with the parent coordinator as the parent coordinator is in a
position to assist them in understanding the children’s developmental and
individual needs.
9. The parent coordinator will, while focussing on the children’s best
interests, be responsible for: -
9.1. assisting with the preparation and implementation of a parenting
plan and contact schedule;
9.2. monitoring compliance with the parenting plan;
9.3. assisting with quick assessment and resolution of parental disputes
and conflict;
9.4. assisting the parents with communication and problem solving in
the best interests of the children;
9.5. assisting in educating parents about the children’s developmental
and psychological needs;
9.6. assisting that parents not engage in parental alienation of any kind;
9.7. receiving feedback from the parents’ treating psychologists;
9.8. contacting the psychologist appointed to engage the parents in
parental guidance in order to provide the parenting coordinator with
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appropriate feedback when such is considered in the children’s best
interests.
10. The costs of the parent coordinator shall be paid by the parties in equal
shares.
11. Each party shall pay his/her own costs.
F BEZUIDENHOUT
ACTING JUDGE OF
THE HIGH COURT
DATE OF HEARING: 30 April 2025
DATE OF JUDGMENT: 26 September 2025
APPEARANCES:
On behalf of applicant: P V Ternent
Instructed by:
Billy Gundelfinger Attorneys
(011) 728-7571
pa@gundelfinger.co.za
On behalf of respondent: In person
081-515-8659.