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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case number: 2023-091071
Date of hearing: 9 September 2025
Date delivered: 18 September 2025
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHERS JUDGES: YES/NO
(3) REVISED
DATE: 18/9/25
SIGNATURE
In the application between:
C[...] G[...] S[...] Applicant
and
L[...] S[...] Respondent
__________________________________________________________
JUDGMENT
SWANEPOEL J:
[1] The parties are currently in the throes of a bitterly contested
divorce, in which the primary dispute apparently relates to the care and
contact arrangements in respect of their young children, G, a boy, who
is almost 7 years old, and M, a girl, who is 5 years old.
[2] The parties separated in October 2022. During December 2023
the applicant launched an urgent application that culminated in an orde r
by agreement, with the following material provisions:
[2.1] The parties were declared to have joint parental rights
and responsibilities in respect of the children, in terms of section
18 of the Children’s Act, 38 of 2005;
[2.2] Dr Ronel Duchen was appointed to conduct an
assessment of the parties and the children, and to make a
recommendation as to the children’s best interests;
[2.3] Pending the outcome of the assessment, the dispute
relating to care and contact during holidays was referred to
mediation;
[2.4] Whilst the children would, in the interim, remain in the
primary care of the respondent, the applicant would be entitled to
the following contact:
[2.4.1] On Monday, Tuesday and Wednesday mornings the
applicant would collect the children fr om the respondent’s home
and take them to school;
[2.4.2] Wednesday afternoons from 16h00 until 18h30;
[2.4.3] From 16h00 on Thursday afternoons until Saturday at
13h00.
[3] In an interim report dated 3 April 2024 the Family Advocate
recommended that the applicant should have reduced contact as
follows: Wednesday contact from 16h00 until 18h00, every alternate
weekend from 09h00 on Saturday until 18h00 on Sunday, and video
calls every Tuesday, Thursday and alternate weekends. It did so after
having conducted one interview with the parties on 27 March 2024. The
recommendation was allegedly based on the “need to stabilize the
children emotionally”.
[4] The Family Advocate made the recommendation based
exclusively on the respondent’s disclosures to the effec t that both
children had regressed since the parties separated in October 2022
(she told Dr. Duchen that M[...] had regressed since September 2023 ).
The recommendation was made without any supporting collateral
evidence confirming the respondent’s contention s (which Dr. Duchen
later found to be without foundation). The respondent contended that
the applicant suffered from bipolar disorder (which was later disproved
per Dr. Pretorius), that he consumed alcohol to excess (which was later
contradicted by blood t ests), that the applicant was incapable of caring
for the children on his own (which Dr. Duchen found not to be so), and
that there was high conflict between the parties (much of which the
respondent caused).
[5] Nonetheless, the Family Advocate saw fit to reduce the
applicant’s contact, and armed with that report, the respondent started
reducing the applicant’s contact substantially. She removed the children
from their nursery school and enrolled them elsewhere , ostensibly
because the applicant had visited them at school. The respondent
refused to give effect to the December 2023 order, and insisted that the
Family Advocate recommendations be implemented.
[6] I am extremely perturbed by the fact that the respondent took it
upon herself to simply ignore a c ourt order. The applicant has
contended that the respondent is intransigent, and is set on doing what
she wants as far as the children are concerned. She believes that she is
the final arbitrator as to what is in their interests. I will deal with this
issue fully below, but this seems to me to be a well-founded statement. I
also find it perturbing that neither the Family Advocate nor her attorneys
impressed on the respondent that she had to comply with the court
order until it had been varied.
[7] On 28 May 2024 the December 2023 order was varied in the
following respects: The applicant was allowed to fetch the children every
morning to take them to school, and to take G to an occupational
therapist every second session. The applicant was also granted contac t
every second weekend from after school on Friday to Sunday at 17h00,
Wednesday contact between 16h00 and 18h30 and video call contact
each Tuesday, Thursday and every second Sunday for 30 minutes.
[8] Dr. Duchen’s report was published on 22 December 2024 . The
(extremely comprehensive) report proposed the following contact
arrangements: For the first six months of 2025: Sleepover contact on
Wednesdays from after school until Thursday mornings, with the daily
pick-up for school continuing , and contact on al ternate weekends from
Friday after school until Sunday at 17h00. After six months the
applicant’s contact is to include Sunday night sleepovers. From 2026
the children are to sleep over with the applicant on the Thursday that he
has them for the weekend.
[9] The result would be that from 2026, and on every alternate
week, the applicant would have the children from Wednesday until
Monday morning. The morning pick -ups would then fall away. Dr.
Duchen also recommended that school holidays be shared equally.
[10] Dr. Duchen, who was appointed by the parties jointly, has been
practicing as a counselling psychologist since 1994. She holds a B.Sc
(mathematical Sciences), a B.Sc (Hon), a MA (Psychology) and a D.Litt
et Phil degree, the latter focusing on psycholo gical testing. She has
been appointed as a Family Counsellor volunteer with the Office of the
Family Advocate. She has presented numerous papers in the field of
family matters.
[11] Dr. Duchen conducted 24 interviews and psychometrical
assessments with the parties and the children. It is important to deal
with her findings in detail. Dr. Duchen described the respondent as
being analytical in her approach to matters, including in her parenting,
whilst the applicant had a more laisse faire attitude. Whilst the
respondent is more authoritarian by nature, the applicant was raised in a
more permissive style. Their parenting styles are the polar opposite of
the other. Nonetheless, the applicant believes the respondent to be a
good mother. On the other hand, the respondent believes the applicant
to be dishonest, disrespectful, manipulative, and engaged in a power
struggle.
[12] Alarmingly, she told Dr. Duchen that she thought that the
parenting relationship between them “wor ked well when C[...] was less
involved in the children’s lives and more preoccupied with his own work
and hobbies. That statement suggests a strong motive to try and
exclude the applicant from the children’s lives. On the other hand, Dr.
Duchen found that t he applicant viewed the respondent in a positive
light, and wished to co -parent with her in a positive manner. The
applicant’s attempts to do so were resisted by the respondent who
refused to meet with him, and on her own version she stopped talking to
the applicant about the children.
[13] The respondent is extremely suspicious about the applicant’s
motives, as she perceives them. Upon being asked what changes could
be made to the prevailing arrangements, she said that if his motive was
to sabotage her rel ationship with the children, nothing could be done to
improve the situation. The belief that the applicant has ulterior motives is
reflected in her belief, for instance, that the applicant has hacked her
phone and has bugged her house (for which no evidenc e exists), and
that he has taken the children to a different therapist without her
knowledge (which is only founded in the respondent’s imagination).
Astoundingly, she accused the applicant of using a different therapist in
order (inter alia) to make the children more self-sufficient, to form a bond
with them, and to counteract the regression that the children had
allegedly experienced. Even if there w ere any basis to believe that the
children had attended alternative therapy, it is concerning that the
respondent would object to these laudable objectives.
[14] Dr. Duchen considered the respondent to be ambivalent about
the prospect of the applicant exercising contact with the children. She
believed the respondent to be over -vigilant and restrictive with her
“gatekeeping” of the applicant’s contact with the children. This finding
supports my view that the respondent believes that she, and only she,
knows what is best for the children. She has no respect for the
applicant’s role in the children’s lives.
[15] Dr. Duchen describes both parents as being engaged with the
children. Both are fully capable of caring for the children, despite the
respondent’s view of the applicant to the opposite effect. In fact, Dr.
Duchen pointed out that the parties each brought a d ifferent personality
and approach to parenting that would stand the children in good stead.
Importantly, Dr. Duchen did not report on any regression by the children.
[16] During July 2025 the Office of the Family Advocate brought out a
report that proposed that the applicant should enjoy the following
contact:
[16.1] Between the ages of five and six: Contact every
alternate weekend from Friday after school until Sunday at
17h00, Wednesday contact from 16h00 until 18h00, telephonic
contact on alternate Sund ays between 18h30 and 19h00 and on
Tuesday and Thursday evenings from 18h30 to 19h00, and
shared holiday contact for five days at a time.
[16.2] Between the ages of six and seven the contact would
remain the same save that the holiday contact would be extended
to 10 days.
[16.3] From the age of seven the holiday contact was to be
increased, with the remaining contact remaining the same.
[17] It must be noted that the above recommendation would be
impossible to implement as the children differ in age by some two years,
and if the recommendation were to be implemented literally, the same
contact arrangements would not apply to both children , resulting in a
fragmented contact regime . The Family Advocate had regard to Dr.
Duchen’s report, to school reports, to a letter from Dr. Pretorius, the
applicant’s psychiatrist, a nd to a telephonic interview with the
respondent’s mother, to a blood test of the applicant , and to input from
Mr. Du Plessis, a clinical psychologist, who opined on Dr. Duchen’s
report. No col lateral evidence was sought from anyone who could
express an opinion on the applicant’s parenting abilities.
[18] The Family Advocate correctly pointed out that there is much
conflict between the parties. It did not, however, consider the numerous
red flags in Dr. Duchen’s report that show that the conflict is largely the
result of the respondent’s baseless distrust of the applicant, and her
belief that it is best that the applicant be excluded from the children’s
lives. The Family Advocate blithely accept ed the collateral evidence of
the respondent’s mother that the children had regressed, seemingly
without considering whether her opinion was possibly influenced by
bias.
[19] The alleged regression was placed solely at the feet of the
applicant, in the be lief that it was the children’s contact with the
applicant that was causing their trauma. I do not see that there was any
consideration given to other possibilities, such as that the children
perhaps missed the applicant and the nuclear family , or that the
respondent’s negative view of the applicant had perhaps inadvertently
influenced the children.
[20] Certainly, according to the children’s teachers, they have not
experienced any regressive behaviour by them. G’s teacher reports that
“It appears that G i s coping well on an emotional and behavior level
since his parents’ divorce.… There are no noticeable behavior problems
I see at school…. It appears that both parents are able to meet G’s
needs and they always show interest in his school activities and pos ts.
He always talks positively about his mother, father and sister, and I can
hear that he loves them very much. It seems that he has accepted the
divorce and copes well with the situation.”
[21] As far as M is concerned, her teacher reports:
“Daar word ta ns geen uitvalle ten opsigte van haar emosionele
welstand waargeneem nie en haar optrede is soos ‘n gewone 4 -
jarige dogtertjie….Sy het geen emosionele uitvalle by die skool
nie en is ‘n selfversekerde kleuter. M neem maklik afskeid van
haar pappa in die oggende en geniet dit om by die skool te wees.
Sy is opgewonde in die middag om albei haar ouers te sien en is
‘n liefdevolle kleuter…. Albei ouers is betrokke by die skool se
aktiwiteite en kommunikeer gereeld met die onderwyser. Beide
ouers woon funksies en ouervergaderings by.”
[22] It is difficult to marry the picture painted by the children’s teachers
with the picture painted by the respondent. Ultimately, however, the
Family Advocate expressed the view that the contact proposed by Dr.
Duchen was not age -appropriate. It said that a child requires a stable
environment, which, apparently, it cannot experience if it has two
involved parents who do not reside together and who share residency .
Taking that view to its ultimate conclusion, shared residency would
never, in the Family Advocat e’s view, be appropriate, especially for
younger children. Apparently the Family Advocate also expressed that
very view to the applicant.
[23] If that is the Family Advocate’s view, that would be most
unfortunate. There are no hard and fast rules, and each case must be
considered strictly on its merits. One cannot apply a blanket approach to
all matters.
[24] More unfortunately, the Family Advoc ate expressed the view that
Dr. Duchen had put the applicant’s interests ahead of those of the
children. That view is incorrect, which should have been apparent in
reading Dr. Duchen’s nuanced report. Her view was that the parties
each brought different personality traits to the ir relationship with the
children, which would be of benefit to the children. In that sense it is
important for the children to be allowed to have a proper and fulfilling
relationship with both parents.
[25] Furthermore, apparently Mr. Du Plessis provided feedback to the
Family Advocate, indicating that he agreed with Dr. Duchen’s test
results. Whether he provided any comment on the outcome of the report
is uncertain.
[26] For the reasons set out above, save to accept the view that the
respondent is viewed by the children as their primary caregiver, and that
they should primarily reside with her, I cannot accept the Family
Advocate’s report.
[27] Is shared residency appropriate in this case? Dr. Duchen made
the point, which I endor se, that parents engaging in a shared residence
regime should be able to shield their children from ‘intense and
protracted parental conflict”. The parties are not able to co-parent, and it
seems likely that their parenting conflict will remain unresolved. In a
shared residence situation the children are with each parent for a
protracted period, making it more likely that the parents would have to
consult one another when crises or problems arise. For that reason,
shared residency is inappropriate in these circumstances. I
acknowledge that it seems unfair to make that finding, especially given
the fact that the respondent seems to be the primary source of the strife
between the parties.
[28] It is necessary, also, to limit the parties’ exposure to one anothe r.
The morning pick-ups seem, especially, to be a source of strife between
the parties, and should probably be curtailed. The contact arrangements
should also be unfragmented in order to be more manageable and to
promote stability for the children. The ord er should, furthermore, be
implemented in a sensitive manner allowing the children to opportunity
to become accustomed to extended contact . Having said that, it is
important that the children should spend more time with the applicant.
[29] I shall attempt to craft an order that allows for the applicant to
have more contact with the children, that is sensitive to the children’s
need for structure, and that restricts the amount of interaction between
the applicant and the respondent.
[30] The applicant has suggested that a parenting coordinator be
appointed to manage the contact arrangements. Given the near
certainty of strife between the parties in future, it is a sensible proposal.
The respondent has submitted that she is unable to pay fo r the services
of a parenting coordinator, but that submission is factually
unsubstantiated.
[31] Finally, there remains the issue of costs. The applicant has
achieved some success, but not fully so. I am also mindful of the fact
that the respondent was, in my view, the main cause of the strife
between the parties. However, ultimately, the final decision on the
parental rights of the respective parties will be made at trial, and it is
perhaps appropriate to allow that court to determine the outcome of the
costs in these proceedings.
[32] I make the following order, pendente lite:
[32.1] The parties shall remain the joint holders of full
parental rights and responsibilities in respect of the minor
children, G and M.
[32.2] The primary residence of the chi ldren shall remain
with the respondent;
[32.3] The applicant shall have parental rights and
responsibilities of contacts and care as follows:
UNTIL 31 DECEMBER 2026:
IN WEEK 1 OF A TWO WEEK CYCLE:
[32.3.1] Sleepover contact from after school on Frid ay until
the following Monday morning (when week 2 commences)
when the applicant shall take the children to school;
[31.3.2] Telephonic contact on Tuesday and Thursday
between 18h00 and 18h30;
IN WEEK 2 OF A TWO WEEK CYCLE:
[31.3.3] Sleepover contact on Wednesday from after school
until Thursday when the applicant shall drop the children at
school.
[31.3.4] Telephonic contact on Tuesday, Thursday and
Saturday between 18h00 and 18h30.
[31.3.5] The applicant shall collect the children from the
applicant’s home on Monday morning (after he has not had
weekend contact) and drop them at school.
HOLIDAY CONTACT
[31.3.6] The applicant shall be entitled to contact one short
school holiday per year, and half of each long school
holiday, with the Ch ristmas period alternating annually
between the parties, provided that the long holidays shall be
divided so that the children are with each party for a
maximum period of five days each.
FROM 1 JANUARY 2027:
IN WEEK 1 OF A TWO WEEK CYCLE:
[31.3.7] Sleepover contact from after school on Thursday
until the following Monday morning (when week 2
commences) when the applicant shall take the children to
school.
[31.3.8] Telephonic contact on Tuesday between 18h00 and
18h30.
IN WEEK 2 OF A TWO WEEK CYCLE:
[31.3.9] Sleepover contact on Wednesday from after school
until Thursday when the applicant shall drop the children at
school.
[31.3.10] Telephonic contact on Tuesday, Thursday and
Saturday between 18h00 and 18h30.
HOLIDAY CONTACT
[31.3.11] The applicant shall be entitled to contact one short
school holiday per year, and half of each long school
holiday, with the Christmas period alternating annually
between the parties.
[31.4] The parties shall jointly appoint a parenting coordinator who
shall be a social worker or clinical psychologist with no less
than 15 years’ experience in the field of family law and who
shall be appointed by the Chairperson of the Legal Practice
Council.
[31.5] The parties shall be equally liable for the costs of the
parenting coordinator.
[31.6] The parenting coordinator shall:
[31.6.1] Give directions relating to the exercise of contact by
the applicant;
[31.6.2] Resolve any disputes between the parties;
[31.6.3] Be entitled to appoint any professional person ,
including, but not limited to mediators, or therapists for
either the parties or the children, to assist her in exercising
her mandate and where she deems it necessary.
[31.7] The costs of this application shall be reserved for
determination in the divorce action.
____________________________
SWANEPOEL J
JUDGE OF THE HIGH COURT
GAUTENG DIVISION PRETORIA
Counsel for the applicant: Adv. L van der Westhuizen
Instructed by: Schoeman Associates
Counsel for the respondent: Adv. B Bergentuin
Instructed by: VFV Attorneys
Hearing on: 9 September 2025
Judgment on: 18 September 2025