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, PRETORIA
CASE NO: 007995/2025
DELETE WHICHEVER IS NOT APPLICABLE
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED.
(4) Date: 08 October 2025
In the matter between:
T[…] S[…] J[…] V[…] R[…] First Applicant
E[…] I[…] S[…] Second Applicant
And
C[…] S[…] J[…] Respondent
JUDGMENT
2
NYATHI J
A. INTRODUCTION
[1] This is a two-parts application (opposed by the respondent) wherein the
applicants seek, in PART A an order declaring and confirming the first applicant
as a co -holder of full parental responsibilities and rights in respect of a minor
child; directing that the primary residence of the minor child be investigated by
an independent expert; and pending the finalisation of the investigation, the
order should also entitle the second applicant reasonable parental
responsibilities and rights in respect of the minor child. The application
requests Part B to be postponed sine die.
[2] The respondent opposes the applicants' application on the following grounds:
3
2.1 that the application is wasting the Honourable Court's time to
the extent that the first applicant prays to be granted rights and
responsibilities that he already has and which he knows are not
disputed by the respondent.
2.2 that it will not be in the best interest of the minor child to have
the second applicant granted parental responsibilities and
rights in respect of the minor child who has capable, caring and
loving parents none of which the a pplicants are accusing of
failing in their parental responsibilities. Especially If the second
applicant is to be granted parental rights and responsibilities in
respect of the minor child without the best interest of the minor
child standard applied on her request.
2.3 that the a pplicants are not revealing their true motive when
stating that they are acting in the best interest of the minor
child as the facts will show that they are merely flexing their
financial muscles for the purpose of abusing and embarrassing
the respondent.
2.4 that the a pplicants are not alleging that the r espondent is
abusing or neglecting the minor child or alleging that the
primary residence of the minor child is not appropriate. Further
the applicants are not providing the reasons why they believe
an interim order is necessary in this matter.
2.5 that the second applicant has no locus standi in the matter and
that this application fails to assist her case by not alleging any
right in the Bill of Rights or in the Children's Act that has been
infringed or threatened that the second applicant is attempting
to enforce.
4
[3] The respondent asserts that she exercised her parental rights and
responsibilities in the best interests of the child, and the minor child stays in a
supportive and safe home in accordance with the Children's Act 38 of 2005 and
as required by public policy.
B. FACTUAL BACKGROUND
[4] Between August 2018 and November 2020, the f irst applicant and respondent
were involved in a romantic relationship that resulted in the birth of SLJVR, on
31 October 2019 (the minor child) who is now a boy of about five years and
who is characterized with delayed development.
[5] After the minor child was born, the f irst applicant and the r espondent intended
to get married hence they agreed to register the birth of the minor child in the
surname of the f irst applicant instead of the r espondent. This act granted the
first applicant full parental responsibilities and rights in respect of the minor
child.
[6] However, the f irst applicant and the r espondent hold different views about
whether the act of registering the birth of the minor child in the surname of the
first applicant assigned full parental responsibilities and rights to the f irst
applicant in respect of the minor child.
[7] It is also important to state that the minor child has both paternal and maternal
grandparents in his life. The second applicant (the other grandmother) wants to
be assigned parental responsibilities and rights in respect of the minor child.
The first applicant and the r espondent also hold divergent views as to whether
the fact that the f irst applicant is the only child of the second applicant who
5
resides in South Africa, entitles the second applicant to be assigned parental
responsibilities and rights in respect of the minor child. The r espondent
disagrees with this view as she believes that those factors are irrelevant when
assignment of parental and rights in respect of a child are considered.
[8] The first applicant works and lives in Malaysia and the second applicant is
alleged to work as a radiologist and lives in Johannesburg. The r espondent
works in Pretoria, and her parents are self-employed.
[9] In February 2020, by the time when the minor child was four months old, the
respondent and the minor child undertook a visit to Malaysia to join the f irst
applicant in what was initially intended to be a short visit. However, due to the
COVID-19 outbreak, the r espondent and the minor child ended up staying in
Malaysia for nine months, in a stay which, according to the r espondent, was
laden with domestic abuses meted on her by the first applicant.
[10] In November 2020, the respondent and the minor child returned to South Africa
and since then, they had been staying with the r espondent's parents (i.e, the
minor child's maternal grandparents) in Pretoria.
[11] Soon after their return to South Africa, the romantic relationship between the
first applicant and the r espondent ended because of unresolved issues that
started in Malaysia.
[12] Thereafter, whenever the f irst applicant would visit South Africa, he would stay
with the second applicant at her house in Johannesburg and at times his
circumstances w ould allow him to have day contacts with the minor child
including sleepovers to the extent found convenient by both parents.
[13] In total, since the birth of the minor child, the first applicant had only undertaken
15 visits of 5 weeks each to South Africa. These visits were the opportunities
6
for him to have physical contact with the minor child in addition to telephonic
contacts. But the first applicant cannot say that he attempted to use all his days
in South Africa to spend time with the minor child. The respondent also submits
that none of these visits to South Africa by the f irst applicant occurred during
school holidays.
[14] Since October 2024, the minor child had been attending pre- school at
Edukleuter Kampus, 786 Kamdebo Street, Florauma, Pretoria after he was
expelled from the previous pre-school due to intermittent emotional outbursts. It
is important to also indicate that this replacement school is another issue that
the first applicant and the respondent squabbled about. The r espondent
submits that the f irst applicant fails to understand that, at the time, the
respondent as the custodian parent needed to act swiftly to find a replacement
pre-school for the minor child.
[15] Since the minor child had been at this new pre- school, the minor child had
consistently attended therapy sessions, and what is convenient is that the
clinical psychologist is based at the school. The r espondent submits that the
child had adapted well.
[16] It is not unusual that in a relationship where parents have fallen out of love and
a minor child is involved, disputes about trifl ing issues in respect of the minor
child sometimes arise. The facts of this case indicate that the relationship
between the f irst applicant and the r espondent is not immune from such
disputes.
[17] The respondent summarises conflicts between her and the a pplicants in
respect of the minor child as ranging from (i) the r espondent as the custodian
parent being accused of keeping information from the a pplicants; (ii) the
respondent being accused of unreasonably limiting contacts of the a pplicants
with the minor child; (iii) unilaterally making choices about the school of the
7
minor child; (iv) to sporadic disagreements leading to incidents of violence and
shouting in the presence of the minor child often between the second applicant
and the respondent; and (v) threats to withhold maintenance of the minor child
by the first applicant in order to control the respondent.
[18] The respondent is convinced that it is these fallouts between the parties that
are behind the applicants making this application.
C. BRIEF CHRONOLOGY
[19] This chronology was provided by the first applicant:
19.1 August 2018 – first applicant and the respondent commence a
romantic relationship.
19.2 31 October 2019 - the minor child is born.
19.3 February 2020 – first applicant and the r espondent move to
Malaysia.
19.4 2023 – the minor child starts to exhibit concerning conduct.
19.5 January/February – application is served and filed.
D. ISSUES FOR COURT’S CONSIDERATION
[20] The issues engaging the Court’s attention are:
8
20.1 What are the best interests of the minor child?
20.2 The first applicant already enjoys parental responsibilities and
rights granted to unmarried fathers in terms of the Children’s
Act.
20.3 Does the second applicant have any locus standi in this
application.
20.4 The role of the Family Advocate versus an Independent Expert.
20.5 Is a parenting plan required/necessary?
E. DISCUSSION OF LEGAL PRINCIPLES
Best interests of the minor child:
[21] The applicants allege in their papers that they brought this application in the
best interests of the child.
[22] According to section 15 of the Children's Act , a court may entertain a matter
brought before it when satisfied that the following two requirements are met,
namely,
22.1 if any person has alleged an infringement or threats to a right in
the Bill of Rights or in the Act, and
22.2 (ii) if such person is one of those listed in section 15(2) of the
Children's Act. Nowhere in their papers did the a pplicants
9
indicate to this Court that they satisfied these requirements to
be heard and for that they deserve any remedies that the Court
may provide. Hence on this observation alone, the r espondent
contends that if this Court is with her, the application ought to
fail.
[23] Section 28(2) of the Constitution of the Republic of South Africa and Section 9
of the Children's Act which echoes the words of section 28(2) of the
Constitution states that "
In all matters concerning the care, protection and well-being
of a child the standard that a child's best interest is of paramount importance, must be
applied".
[24] Section 7(1) of the Children's Act guides how this standard is applied by stating
that when applying " the best interests of the child standard " the following factors
must be considered where relevant, namely:
(a) The nature of the personal relationship between –
(i) The child and the parents, or any specific parent, and
(ii) The child and any other care- giver or person relevant in those
circumstances; (b) The attitude of the parents, or any specific parent, towards –
(i) The child; and
(ii) The exercise of parental responsibilities and rights in respect of the child;
(c) The capacity of the parents, or any specific parent, or any care- giver or
person, to provide for the needs of the child, including emotional and
intellectual needs;
(d) The likely effect on the child of any change in the child's circumstances;
(e) The practical difficulty and expense of a child having contact with the
parents, or any specific parent, and whether that difficulty or expense will
10
substantially affect the child's right to maintain personal relations and direct
contact w the parents, or any specific parent, on a regular basis;
(f) The child's –
(i) Age, maturity and stage of development;
(ii) Gender;
(iii) Background; and
(iv) Any other relevant characteristics of the child;
(g) The need for a child to be brought up within a stable family environment
and, where this is not possible, in an environment resembling as closely as
possible a caring family environment;
(h) The need to protect the child from any physical or psychological harm that
may be caused by –
(i) Subjecting the child to maltreatment, abuse, neglect, exploitation or
degradation or exposing the child to violence or exploitation or other harmful
behaviour; or
(ii) Exposing the child to maltreatment, abuse, degradation, ill -treatment,
violence or harmful behaviour towards another person;
(i) Any family violence involving the child or a family member of the child; and
(j) Which action or decision would avoid or minimise further legal or administrative
proceedings in relation to the child.
[25] The respondent contends that this application is not in the interest of the minor
child but those of the applicants. For instance, the applicants cannot claim they
are acting on behalf of the child yet they are requesting this Court to grant them
an order that have terms that directs the r espondent to ensure that the second
applicant access to the minor child only on her off -duty weekends (see sub-
terms 4.3 & 4.4 of the Notice of Motion), as though performing parental
responsibilities and exercising parental rights is a hobby, that is reserved only
to off-duty days. This clearly does not show a scintilla of intention to act in the
best interest of the minor child.
11
[26] A further indication of lack of interest of the minor child is shown in a term of
the requested order that the a pplicants be granted parental responsibilities and
rights, yet they know full well that they will not have time to perform and
exercise those duties on a daily basis, except when one of the a pplicants
comes to South Africa once a year, which the Court had that it had never been
on school holidays; and the other a pplicant on her off -duty weekends. Clearly,
the applicants failed to take this Honourable Court in their confidence by not
showing that they are prepared to sacrifice for the minor child and that they
also considered the "
practical difficulty and expense of a child having contact with
the parents, or any specific parent".
[27] The respondent contends that the applicant is only paying lip- service to the
minor child's interest in this application, as the application is more about their
broken relationship with the r espondent. This motive is appropriately captured
in paragraph 16 of the a pplicants' Founding Affidavit when the f irst applicant
states the following:
" ... I believe it is prudent that the Court take cognizance of the history between
myself, the Second Applicant and the Respondent, to assist the Court with the
proper adjudication of this application and in order to prove my intentions towards
the minor child with this application.”
[28] If the application was truly in the best interest of the minor child, the a pplicants
would have considered it important to inform the Court also about their
relationships with the minor child. Especially considering that the a pplicants
want this Honourable Court to assign them parental responsibilities and rights
as well as guardianship of the minor child (see 3.2 of the Notice of Motion). It is
trite that when deciding, the Court ought to have been informed of the nature of
the personal relationship between the child and the parent, or gran dparent or a
the personal relationship between the child and the parent, or gran dparent or a
relevant person in the circumstances. Silence on this point shows that the best
12
interest of the child standard is not paramount in their case and was not applied
as required.
[29] Furthermore, as indicated above, another of the requirements of "the best
interests of the child standard" is to consider "action or decision which would
avoid or minimise further legal or administrative proceedings in relation to the
child". Notwithstanding this, the applicants chose to litigate this matter and are
opposed to mediation and use of the Family Advocate, and it is clear that when
they do not have their way in this Court and the Court is for the Family
Advocate, they still want independent experts to be used. This does not paint a
picture of applicants who are acting bona fide the interests of the minor child.
This does not show the a pplicants as parents who are acting in compliance
with the requirement of the standard to avoid or minimise further legal or
administrative proceedings in relation to the child.
[30] It is common cause that the minor child is of a young age and that his
development is delayed. Notwithstanding this too, the a pplicants do not find it
necessary to also inform this Court how they considered in their application the
age, maturity and stage of development of the minor child. Clearly, the
applicants dismally failed the best interest of the minor child test and there is no
reasonable person who cannot see through them based on their submissions
in this application.
Parental responsibilities and rights of unmarried fathers:
[31] In their Notice of Motion, the applicants request this Court to grant an order that
contains a term that assigns full parental responsibilities and rights in respect of
the minor child to the first applicant who is an unmarried father.
13
[32] The respondent concedes that unmarried fathers do not acquire parental
responsibilities and rights in respect of minor children just for the fact of being
fathers.
[33] Assignment of parental responsibilities and rights to unmarried fathers is
regulated by section 21 of the Children's Act which provides the following in
respect of parental responsibilities and rights of unmarried fathers:
“(1) The biological father of a child who does not have parental responsibilities and
rights in respect of the child in terms of section 20, acquires full parental
responsibilities and rights in respect of the child-
(a) if at the time of the child's birth he is living with the mother in a permanent life
partnership; or
(b) If he, regardless of whether he has lived or is living with the mother –
(i) Consents to be identified or successfully applies in terms of section 26 to
be identified as the child's father or pays damages in terms of customary
law;
(ii) Contributes or has attempted in good faith to contribute to the child’s
upbringing for a reasonable period; and
(iii) Contr ibutes or has attempted in good faith to contribute towards
expenses in connection with the maintenance of the child for a reasonable
period.
(2) This section does not affect the duty of a father to contribute towards the
maintenance of the child.”
[34] The respondent submits that at birth of the minor child, the f irst applicant
consented to be identified as the father. Section 26(1)(a) of the Children's Act
referred to supra, provides that:
"
A person who is not married to the mother of a child and who is or claims to be the
biological father of the child may apply for an amendment to be effected to the
registration of birth of the child in terms of section 11(4) of the Births and Deaths
14
Registration Act, 1992 (Act 51 of 1992), identifying him as the father of the child, if the
mother consents to such amendment".
Because the parents already gave the minor child the f irst applicant's surname
at birth, this act made it unnecessary to for the f irst applicant to later follow the
route of amendment as envisaged in section 26(1)(a) of the Children’s Act.
[35] It is against this background that the r espondent contends that in this case, the
first applicant acquired parental responsibilities and rights in terms of section
21(1)(b)(i) of the Children's Act 38 of 2005 and section 10(1)(b) of the Births
and Deaths Registration Act 51 of 1992. After all, the respondent submits that
this exercise was undertaken with the f irst applicant consent, hence it is
surprising that the f irst applicant is making this request for assignment of full
parental responsibilities and rights in respect of the minor child.
[36] Therefore, the respondent argues that the first applicant had never lost his
rights and responsibilities and as a result if this Court is with her on this point,
this application should be considered redundant and be dismissed with costs.
Second Applicant’s lack of locus standi:
[37] The respondent submits that it is trite that a preliminary procedural question
that has to be answered in the judicial process is whether the parties to the
litigation have the necessary standing or legal capacity to litigate. However,
locus standi is not only a procedural question but is also a question of
substance; it concerns the sufficiency and directness of the litigant's interest in
proceedings which warrants his or her title to prosecute the claim asserted.
[38] Apparently, in this application the applicants appear to be misled to believe that
the fact that the second applicant is the grandmother of the minor child
establishes sufficient and direct interest that entitles her to litigate or be joined
15
in a dispute between the parents involving the rights of a minor child. The
respondent argues that by merely being joined does not automatically grant
locus standi before a court, but the sufficiency and directness of the litigant's
interest in the matter must still be shown to the satisfaction of the Court.
[39] The respondent contends that section 15 of the Children's Act regulates legal
standing of litigants to enforce rights in respect of children, and thus those
litigants must allege compliance with these requirements of this section.
Section 15 of the Children's Act provides as follows:
“15 Enforcement of rights
(1) Anyone listed in this section has the right to approach a competent court, alleging
that a right in the Bill of Rights or this Act has been infringed or threatened, and the
court may grant appropriate relief, including a declaration of rights.
(2) The persons who may approach a court, are:
(a) A child who is affected by or involved in the matter to be adjudicated;
(b) Anyone acting in the interest of the child or on behalf of another person who
cannot act in their own name;
(c) Anyone acting as a member of, or in the interest of, a group or class of
persons; and
(d) Anyone acting in the public interest
.”
[40] The respondent argues that compliance with this section of the Act affords any
person claiming locus standi the right to be heard by the Court, especially when
claiming to litigate in the best interest of the minor child. Therefore, in simple
terms, to have locus standi in such a claim, as per section 15, a person would
need compliance with the following two-step requirements:
(i) allegation that a right in the Bill of Rights or this Act has been infringed
or threatened; and
(ii) (ii) the applicant is made by one of the persons listed in the subsection.
16
[41] At face value, the s econd applicant seems to satisfy the threshold set by
section 15. However, when one looks deeper into the requirements, the
respondent argues that the a pplicants fail the test as they do not allege any
right that the respondent infringed or threatened that the applicants, particularly
the second applicant is enforcing.
[42] Hence on this basis alone, the respondent contends that this application by the
applicants is unfounded and is a waste of Court's time that should be
dismissed with costs. By failing to meet the threshold set out by section 15, the
respondent argues that the second applicant is therefore not properly before
this Court.
[43] Furthermore, the respondent contends that even if this Honourable Court were
to find that the second applicant is properly established as a party to these
proceedings, that conclusion of the Court would not affect her status as a
grandmother of the minor child. Particularly considering that the respondent still
allows the minor child to visit her now and then as she believes that it is
important that the minor child maintains relations with both paternal and
maternal grandparents. In LH and Another v LA 2012 (6) SA 41 (ECG) , the
Court confirmed that it is usually in a child's best interest to maintain a close
relationship with his or her grandparents. The Court further held that though
contact between the grandparents and their grandson is desirable, that contact
must be carefully circumscribed so as not to interfere with the r espondent and
her husband's parental responsibilities.
1
1 The respondent’s son was born soon after her husband was killed in a car accident. After she remarried, relations
between her and the parents of her deceased husband (the applicants) deteriorated and all contact between
them and their grandson ended. The applicants wanted to re-establish contact with their grandson and
approached the High Court for an order granting them access. The respondent opposed the application on the
basis that the initial contact with them had resulted in numerous problems that convinced her that further contact
with the applicants would not be in her son’s best interests.
17
[44] The respondent submits that the a pplicants conceded in paragraph 27 of their
Founding Affidavit that the reason for the limitation of contact of the second
applicant with the minor child is because of the harmful disagreements
between the second applicant and the respondent.
[45] Therefore, the r espondent submits that the a pplicants did not demonstrate
sufficient and direct interest concerning the second applicant's involvement in
this matter hence this Honourable Court should find the second applicant not
properly before the Court.
Referral to Family Advocate versus Independent Expert:
[46] The respondent submits that the first applicant and her are co- holders of
parental responsibilities and rights in respect of the minor child and find
themselves in dispute over the exercise of their parental responsibilities and
rights.
[47] The respondent contends that her dispute with the a pplicants over parental
responsibilities and rights in respect of the minor child is the kind that falls
within the mandate of the Family Advocate.
Smith J held that it is
usually in a child’s best interests to maintain a close relationship with his grandparents. In the present case the
respondent’s attitude was motivated by her personal difficulties with the applicants rather than a consideration of
her son’s best interests. Contact between the applicants and their grandson, although desirable, had to be
carefully circumscribed so as not to interfere with the respondent and her second husband’s parental
responsibilities. A reasonable transition period was required for the repair of the soured relationship between the
respondent and the applicants.
The court ordered that the applicants be allowed to visit their grandchild at least once a week, for three hours at a
time, at his home or anywhere else the respondent deemed appropriate. – Excerpt from De Rebus, Jan/Feb
2013:46.
18
[48] It is trite that the Office of the Family Advocates investigates disputes over
parental responsibilities and rights and ensures compliance with the principle of
the best interests of the minor child. The r espondent submits that this case is
exactly about determining a fair and practical parenting plan considering the
circumstances of the parties in the dispute. The a pplicants’ side in the dispute
is well resourced whereas the r espondent’s is not, and consideration of this is
in line with the best interest of the child standard.
[49] According to section 33(2) of the Children's Act, if the co- holders of parental
responsibilities and rights in respect of a child are experiencing difficulties in
exercising their responsibilities and rights, those persons before seeking the
intervention of a court, must first seek to agree on a parenting plan determining
the exercise of their respective responsibilities and rights in respect of the child.
[50] The respondent contends that there has never been a genuine commitment to
agree on a parenting plan before the applicants ran to this Court.
[51] In the premise, the respondent submits that assistance by the Family Advocate
will be essential notwithstanding the resourced a pplicants preference of
independent experts.
[52] Section 33(5) of the Children's Act confirms the relevance of a Family Advocate
when it provides as follows:
"
In preparing a parenting plan as contemplated in subsection (2) the parties must
seek-
(a) The assistance of a family advocate, social worker or psychologist; or (b)
Mediation through a social worker or other suitably qualified person."
[53] It is common cause that the Office of the Family Advocate was established by
the Mediation in Certain Divorce Matters Act 24 of 1987 and its functions were
19
extended by the Children's Act 38 of 2005 and are not at use an expense to the
parties. Clearly there are benefits in the use of a Family Advocate.
[54] Because the Family Advocate acts as an advisor to the court and mediator
between family members, the respondent contends that by involving the Office
that would be in the best interests of the minor child and would minimise the
time that would be wasted on searching for a suitably qualified expert and the
costs involved. This will also limit the frequency of court appearances if the
parties would later want to amend or terminate the parenting plan.
[55] Section 34(4) of the Children's Act provides that “A parenting plan registered with
a Family Advocate may be amended or terminated by the Family Advocate on
application by the co-holders of parental responsibilities and rights who are parties to
the plan.” The respondent contends that this section directly aligns with section
7(1)(j) of the Children's Act which guides persons when complying with the best
interests of the child standard to consider “action or decision which would avoid or
minimise further legal or administrative proceedings in relation to the child”.
[56] It is well known that the use of independent experts come at both financial and
time costs to the parties and the child. Hence the r espondent submits that
valuable resources and time would be wasted when determining the suitability
of independent experts' expertise as well as when their reports are made Court
orders. Even thereafter, time and resources would be wasted in court when the
parties would want to amend or terminate the parenting plan developed
through the assistance of the independent experts. The r espondent contends
that this is clearly not in compliance with the best interests of the child standard
as contemplated by section 7(1)(j) of the Children's Act.
[57] Taking this into account, the r espondent argues that the use of the Family
[57] Taking this into account, the r espondent argues that the use of the Family
Advocate remains a reasonable decision that is in the best interest of the minor
child.
20
Is a parenting plan required/necessary?
[58] According to the respondent, all the disputed issues that the applicants brought
to this Court indicate that the absence of a parenting plan is the problem, not
the respondent. However, the respondent does not submit that she is a "perfect
parent".
[59] In any event, the Court s have already determined that, in determining what
custody arrangement would best serve the children's interests, a Court was not
looking for the "perfect parent", as there was no such being. The Court's quest
was to find what has been called " The least detrimental available alternative for
safeguarding a child's growth and development " [ See P v P 2007 (5) SA 94
(SCA)].
[60] In the matter of CM v NG [2012] (4) SA 452 (WCC) the Honourable GANGEN
AJ, in consideration a dispute over rights and responsibilities, said the
following:
[61] "I have no doubt that Applicant is entitled to parental responsibilities and rights as set
out in Section 18 as it would be in the best interests of the child to have a relationship
with two parents. It is also important in a situation such as this where there is much
conflict between the parties that processes be put in place for the due exercise of both
parties' parental rights and responsibilities."
2
[62] Section 33(3) provides that a parenting plan may determine any matter in
connection with parental responsibilities and rights, including –
2 At para [72] of the judgment.
21
(a) Where and with whom the child is to live;
(b) The maintenance of the child;
(c) Contact between the child and
(i) Any of the parties; and
(ii) Any other person; and
(d) The schooling and religious upbringing of the child.
[63] The respondent’s submission in this regard was that the issues that are listed
in section 33(3) are the exact same issues at the core of the applicants’
application. The respondent, accordingly, pray that the Court should direct the
parties towards the preparation of a parenting plan through the Office of the
Family Advocate.
F. CONCLUDING REMARKS
[64] The applicant is already imbued with parental rights and responsibilities that
flow from the provisions of section 21 of the Children’s Act and has been
exercising them already . Any order to this effect would be more for his
assurance than a shift in the legal terrain.
[65] In South African law, grandparents do not have an automatic right to see their
grandchildren but can apply to the court for an order for care or contact under
Sections 23 or 24 of the Children's Act. Any person with a genuine interest in a
child's well -being can apply, and the primary consideration for the court will
always be the best interests of the child. [emphasis supplied].
[66] When deciding a grandparent's application, a court will consider:
(a) The child's needs and welfare.
(b) The need to maintain connections with family, culture, and traditions.
(c) Parental rights and responsibilities.
(d) Any other factors that are deemed relevant to the child's interests.
22
[67] The applicants’ frustration are compounded by the fact that the applicant’s
working c onditions abroad renders it difficult for him to access and bond
appropriately with the minor child as he spends months abroad at a time.
[68] The applicants have made out a case in support of their application. The court
will defer to a reference to the Office of the Family Advocate as a point of first
reference. Other experts’ interventions may become due as and when the
situation evolves.
(e) COSTS
[69] Our courts have on occasion held that in disputes relating to children, where
parents contesting the case have acted in the best interests of the child, there
is no winner or loser and accordingly each party should pay their own costs.
3
G. ORDER
[70] The following order is made in respect of PART A of the application:
3 McCall v McCall 1994(3) SA 201 (CPD) at 209 B-C) quoted from CM v NG supra at para [73].
23
70.1 The first applicant is declared to be a joint holder of full
parental responsibilities and rights as contemplated in Section
21 of the Children's Act, 38 of 2005, of the minor child, SLJVR,
a boy born on 31 October 2019, (the "Minor Child");
70.2 The disputes emanating from this matter regarding the best
interest of the Minor Child are referred to the Office of the
Family Advocate to investigate, assess and report on such
disputes and report to this Court for finalization of those issues.
70.3 Pending the finalization of the investigation and subsequent
report. The 1st and 2nd applicant shall be entitled to the
following reasonable parental rights and responsibilities,
namely:-
24
70.3.1 When the first applicant is within the Republic of South Africa, the
first applicant is entitled to exercise at least seven days , in total ,
contact with a minor child, commencing on a Friday afternoon and
terminating on a Sunday afternoon, alternatively , during school
holidays, commencing on a Saturday and terminating on the next
Sunday.
70.3.2 Regardless of whether the first applicant is within the Republic of
South Africa, the first applicant shall be entitled to:
70.3.2.1 exercise regular daily or second daily telephonic and/or video
contact with the minor child at a time agreed on by both
parties;
70.3.2.2 be regularly informed of any or all school and extra- mural
activities of the Minor Child, including the right to receive all
reports, status updates, information sheets and/or any other
form of communication directly from the school/therapist
regarding the Minor Child's progress, immediately when
available, including free access to contact the relevant parties
to enquire about the Minor Child's progress;
70.3.3 When the f irst applicant is not within the Republic of South
Africa, the second applicant shall be entitled to exercise
contact rights with the minor child once every month on her off -
duty weekend for the first 3 (three) months from date of the
order sought, on Saturday from 09h00 until Sunday at 17h00,
when the minor child is to be returned to the respondent;
70.3.4 Hereafter, the second applicant shall be entitled to exercise
contact with the Minor Child once every month on her off -duty
25
weekend, from Friday after school, when possible, until Sunday
at 17h00, when the Minor Child is to be returned to the
respondent;
70.3.5 In addition, the second applicant, is awarded regular telephonic
contact with the minor child once a week , at a time agreed by
both parties or in case of an emergency, and that the
respondent will answer the call, or return the call when more
suitable; That the r espondent shall furnish the f irst and second
applicants with copies of all school and medical reports , notes
and other documents relating to the minor child’s education,
academic and sporting achievements and doctor’s
consultations.
70.4 PART B of the application is postponed sine die.
70.5 Each party to pay its own costs for this application.
J.S. NYATHI
Judge of the High Court
Gauteng Division, Pretoria
Date of hearing: 09/06/2025
Date of Judgment: 08 October 2025
On behalf of the Applicant: Adv BC Bester
Instructed by: SKV Attorneys Inc., Bryanston
c/o Prinsloo Bekker Attorneys, Pretoria.
Email: cfisher@skvattorneys.co.za
On behalf of the Respondents: Adv ND November
Instructed by: Nkontlha Attorneys Inc., Pretoria
Email: Director@nkontlhalaw.co.za
26
consultantmj@nkontlhalaw.co.za
Delivery: This judgment was handed down electronically by circulation to the parties' legal
representatives by email and uploaded on the CaseLines electronic platform. The date for hand-
down is deemed to be 08/10/2025.