SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, JOHANNESBURG)
CASE NO : 2025-146896
(1) REPORTABLE YES/NO
(2) OF INTEREST TO OTHER JUDGES YES/NO
(3) REVISED
In the matter between:
XJ Applicant
And
SP Respondent
JUDGMENT
FRANCK AJ:
[1] The Applicant launched an urgent application on the 26 th of August 2025 for the
following relief:
[1.1] Dispensing with the forms and service provided for in the Uniform Rules
of Court and that the matter be regarded and dealt with as urgent in
2
terms of Uniform Rule 6(12)(a).
[1.2] That pending the finalisation of the disputes between the Applicant and
Respondent in respect of the termination of their relationship, the
Applicant shall be entitled to access and contact to the parties’ minor
son, currently aged 3 years old, as follows:
[1.2.1] Every alternative Saturday from 08:00 until Sunday 17:00.
[1.2.2] In the week following a weekend wherein the Applicant
exercised contact per 1.2.1 supra, the Applicant will collect the
minor son from the Respondent on Wednesday at 14:00 and
return him to the Respondent by no later than 17:00.
[1.2.3] In the week preceding the weekend wherein the Applicant will
exercise contact per 1.2.1 supra, the Applicant will collect the
minor son on Mondays and Tuesdays at 14:00 and return him
to the Respondent by no later than 17:00 on each of the
respective afternoons.
[1.3] That pending the finalisation of the disputes between the Applicant and
Respondent in respect of the termination of their relationship:
[1.3.1] the Applicant shall make available and provide unfettered
occupation to the Respondent of the property situated at 3[ …]
G[…] H[…] E[…], G[…], E[…], alternatively the Applicant shall
contribute towards the monthly rental expenses of the
Respondent by making payment in the monthly amount of
R15 000,00 payable on or before the last business day of
each month;
[1.3.2] the Applicant to contribute towards the maintenance of the
3
parties’ minor son by making payment to the Respondent in
the monthly amount of R10 000,00 per month payable into a
bank account to be nominated by the Respondent on or
before the last business day of each month;
[1.3.3] the Applicant shall retain the Respondent and the parties’
minor son on the current medical aid (or such other medical
aid affording the same or substantially similar benefits) by
making payment of the monthly contributions to the medical
aid on behalf of the Respondent and the parties minor son;
and
[1.3.4] the Applicant is to make available to the Respondent, for her
unfettered and exclusive use, the Toyota Corolla motor vehicle
owned by and registered in the name of the Applicant.
[1.4] That the Respondent be ordered to pay the costs of the application.
[2] At the outset of the proceedings, the court raised with the parties whether or not
it had the requisite jurisdiction to deal with this dispute, as the Respondent and
the minor child moved from the former matrimonial home in Sandton, to the
Respondent’s parents’ home in East London during June 2025. Even though,
the Respondent indicates a willingness to return to Johannesburg in her
answering affidavit, she states that it is not financially possible and that the
tender of maintenance as contained in the Applicant’s notice of motion is not
sufficient to allow her to do so.
[3] There is a dispute between the parties regarding whether or not a customary
marriage was concluded. The Applicant claims that no customary marriage was
concluded whilst the Respondent maintains that such a marriage was indeed
properly concluded. No summons for a decree of divorce or other declaratory
relief has been issued.
4
[4] As such, the Applicant’s application falls within the purview of Section 28 of the
Children’s Act 38 of 2005 (“ the Children’s Act ”), in which event, the only court
with jurisdiction to determine the dispute, in terms of Section 29 of the Children’s
Act would be the court where the child is ordinarily resident. The child has been
ordinarily resident in East London since June 2025.
[5] It was, however, pointed out to the court during argument, that the Respondent
admitted that the court has the requisite jurisdiction to adjudicate the matter. 1 As
such, the Respondent has consented to the jurisdiction of this court.
[6] The provisions of Section 29 reinforces the requirement that orders affecting
children must be made by courts that are best placed to assess and protect their
interests.
2 This court will, however, consider the application launched by the
Applicant in terms of Section 28 of the Children’s Act through the prism of the
child’s best interests, as upper guardian of all minor children.
[7] The place where the minor child is ordinarily resident is, however, still relevant to
the issues of contact as will be dealt with hereinbelow, as there are geographical
challenges with the minor child being ordinarily resident in East London and the
Applicant residing in Gauteng.
[8] The Respondent states in her answering affidavit that she was compelled to
relocate to her parents’ home during and has stayed there to date, as the
Applicant paid no maintenance in respect of the minor child. 3 The Respondent
further alleges that, the Applicant confiscated her motor vehicle, discontinued
her access to a credit card, stopped paying the salaries of the minor child’s
nanny and the Respondent’s domestic employee and terminated all services to
the former matrimonial home. The Respondent is currently living with her
parents and receives financial assistance from them.
[9] In terms of Section 1(2) of the Domicile Act 3 of 1992, a domicile of choice shall
[9] In terms of Section 1(2) of the Domicile Act 3 of 1992, a domicile of choice shall
be acquired by a person when he/she is lawfully present at a particular place
5
and has the intention to settle there for an indefinite period. The Respondent’s
domicile is currently in East London where she resides with the minor child.
[10] The Respondent’s answering affidavit was filed late and outside the time periods
as prescribed in the Applicant’s notice of motion. In the notice of motion, the
Respondent was directed to file her answering affidavit by Friday, 12 September
2025. An unsigned copy of the answering affidavit was served on the 18 th of
September 2025 with the signed answering affidavit served on the 19 th of
September 2025. The Respondent seeks condonation for the late filing of the
answering affidavit and comprehensively dealt with the reasons why the
answering affidavit was filed late. The late filing is ascribed to the fact that her
attorney of record had to undergo knee replacement surgery and was out of the
office until 10 September 2025. The Respondent further states that due to the
averments made by the Applicant and the denial of the validity of the customary
marriage, it took the Respondent time to collate the relevant documentation and
the logistical distance between her legal team also posed challenges.4
[11] The Applicant did not file a replying affidavit. An affidavit opposing the
condonation was uploaded shortly before the hearing of the urgent application at
12:07 on 23 September 2025 with the Applicant’s heads of argument (dealing
with opposition to condonation) being uploaded shortly thereafter.
[12] The Applicant avers that, the Respondent is being dishonest as:
[12.1] a letter referred to and relied upon by the Respondent as a “holding
letter” dated 15 August 2025 was in fact never sent to the Applicant’s
attorneys;
5
[12.2] the signed answering affidavit did not contain pages 34 and 37.
[13] Nothing seems to turn on this, as the Respondent’s attorney, when questioned
regarding Annexure “AA17”, readily admitted that the letter was mistakenly not
6
sent and informed the Applicant’s attorneys “We have conducted a thorough
search of our records. Annex “AA17” which was writer’s secretary, Hillary Brown,
was mistakenly not sent to yourselves (which the writer only established upon
receipt of your letter under reply). That said we apologise for the inconvenience
occasioned. The writer’s corroborating affidavit confirms the replacement
surgery on 6 August 2025, the consequent pain and being out of office for
recuperation purposes.” The Respondent requested the Applicant to disregard
Annexure “AA17”.
[14] It was submitted that the Respondent’s reliance on Annexure “AA17” amounted
to dishonesty and destroyed the Respondent’s credibility. I disagree. As soon as
the error came to light, the Respondent’s attorney advised the Applicant’s
attorney of same and requested them to disregard the correspondence. On the
facts, I cannot attribute malice or dishonesty to either the Respondent or her
attorney. Furthermore, the unsigned copy of the answering affidavit included
pages 34 and 37. When the Applicant drew the omission of the pages in the
signed version to the Respondent’s attention, the Respondent immediately
made the full signed affidavit available.
[15] In circumstances where I was implored by the Applicant’s counsel to consider
the best interests of the minor child, I do not think it appropriate to rely on overly
technical points or to consider legal niceties, over the best interests of the minor
child. It is in the best interests of the minor child, for the Respondent’s version to
be before court and for the court to consider the submissions made by the minor
child’s mother.
[16] The court has a wide discretion to grant condonation on good cause shown.6
[17] Such discretion must be exercised with regard to the merits of the matter seen
as a whole. On the facts of the matter, I find that the Respondent has show good
cause and a sufficient explanation for the delay in filing the answering affidavit.7
7
[18] The application was opposed on the grounds of urgency. The Respondent
averred that the application is not urgent as the Applicant has not had contact to
the minor child since 10 June 2025.
[19] The Applicant alleges that his contact to the minor child was unilaterally
terminated and alleges that contact must be restored urgently in order to
safeguard the best interests of the minor child. The Respondent’s relocation to
East London, has no doubt contributed to the logistical difficulties in the exercise
of regular contact between the Applicant and the minor child. From June 2025 to
end of August 2025, there were some attempts to have contact to the minor
child and communications were exchanged between the parties as well as their
legal representatives. As this application deals with the best interests of a young
boy and his contact to his father, I regard this matter as being urgent and in this
regard, I was referred to the following cases by the Applicant’s counsel : B v B
8
and DM v CHP9.
[20] If regard is had to the merits of the matter, the court is faced with the dilemma of
the Applicant’s claim for a restoration of contact which amounts to an order for
the Respondent and the minor child to return to Gauteng. As the Respondent is
domiciled in East London together with the minor child and has been so resident
at her parents’ home since June 2025, this court will not order the Respondent
to return to Johannesburg especially in circumstances where the Respondent
has been resident in East London for an extended period of time and is
dependant upon her parents’ financial assistance.
[21] The Respondent states the tender for maintenance including accommodation in
Johannesburg is not sufficient but indicates a willingness to return to
Johannesburg at some point in the future.
[22] The Applicant has not made any financial disclosure to this court and has not
disclosed the basis upon which the quantum of the maintenance has been
disclosed the basis upon which the quantum of the maintenance has been
tendered. Neither has the Applicant indicated a timeframe within which he
8
intends to finalise “the disputes between the Applicant and Respondent in
respect of the termination of their relationship” as stated in the notice of motion.
[23] The court is further faced with the difficulty that, it is not in a position to
determine what type of contact and the duration thereof would be in the minor
child’s best interests. This is so for the following reasons:
[23.1] the child is resident in East London and shuttling the child between East
London and Johannesburg every second weekend, cannot be in the
minor child’s best interests;
[23.2] the Respondent makes substantive averments relating to the
Applicant’s lack of capacity to look after and care for the minor child;
[23.3] there is no social worker report or Family Advocate’s report to guide the
court.
[24] In terms of Section 29(3), the court will only grant relief in terms of Section 28 of
the Children’s Act, if it is in the child’s best interests. To determine whether or
not the relief sought is in the child’s best interests, the court may request a
Family Advocate or social worker to provide a report, in terms of Section 29(5) of
the Children’s Act.
[25] I enquired from both counsel representing the Applicant and the Respondent
whether or not they would have an objection to the appointment of a social
worker and investigation by the Family Advocate. Neither party is opposed
thereto and the Applicant’s counsel confirmed, after taking instructions, that the
Applicant tenders payment for such expert to produce a report.
[26] Pending production of the report, the Respondent tenders contact as set out in
her answering affidavit, being the following:
9
[26.1] Whilst the Respondent still resides in East London, the Applicant is
entitled to exercise contact with the minor child every alternate
weekend on both a Saturday and Sunday for 2 hours in the presence of
the minor child’s nanny and daily telephonic/video call contact between
10:00 and 10:30 in the mornings and 16:30 and 17:00 on the days
when the Applicant has no contact with the minor child.
[26.2] In the event that the Respondent relocates to Johannesburg:
[26.2.1] 2 hours during the week in the presence of the minor child’s
nanny;
[26.2.2] 2 hours on alternate weekends, either a Saturday or Sunday,
in the presence of the minor child’s nanny;
[26.2.3] Daily telephonic/WhatsApp video calls on the dates and times
as set out above.
[27] Due to the averments made by the Respondent relating to the Applicant’s
inability to look after and care for the minor child and because of the minor
child’s tender age, it is necessary , pending production of the report, for contact
in the interim, to be exercised in the presence of the minor child’s nanny. The
time periods tendered by the Respondent are, however, extremely truncated and
the Respondent has not advanced reasons why the periods of supervised
contacts should only amount to a few hours at a time. The court will accordingly
order more generous supervised contact pending the production of an expert
report.
[28] Regarding costs, the court has a wide discretion in family matters to make costs
orders. In the present matter, there are various disputes of fact relating to the
minor child on the papers and, in this specific matter, after a consideration of
both affidavits, it would be just and equitable, for each party to bear their own
10
costs.
Wherefore an order is made in the following terms:
[1] A social worker with no less than 10 years’ experience shall be appointed as an
independent expert, to investigate the best interests of the minor child, KAJ, and
to provide a report to the court with recommendations relating to the minor
child’s care, contact of the minor child with the Respondent and primary
residence.
[2] The social worker shall be nominated by the Chairperson of the Gauteng Family
Law Forum and shall be a social worker, that is willing to finalise a report, which
includes possible travel to East London where the Respondent currently resides
with the minor child.
[3] The Applicant shall make payment of the reasonable costs associated with the
production of the report by the social worker.
[4] Pending production of the report of the social worker, the Respondent shall have
the following contact with the minor child:
[4.1] Whilst the Respondent and minor child are resident in East London, the
Respondent shall be entitled to exercise contact with the minor child as
follows:
[4.1.1] Every alternate weekend on both a Saturday and a Sunday for
a period of 5 hours on each day, in the presence of the minor
child’s nanny.
[4.1.2] Daily telephonic/WhatsApp video calls between 10:00 and
10:30 in the mornings and between 16:30 and 17:00 on the
days that the Applicant does not have contact with the minor
11
child.
[4.2] In the event that the Respondent relocates to Johannesburg with the
minor child prior to finalisation of the social worker’s report:
[4.2.1] 2 hours every Tuesday and Thursday in the presence of the
minor child’s nanny.
[4.2.2] Every alternate weekend on both a Saturday and a Sunday for
a period of 5 hours on each day, in the presence of the minor
child’s nanny.
[4.2.3] Daily telephonic/WhatsApp video calls between 10:00 and
10:30 in the mornings and between 16:30 and 17:00 on the
days that the Applicant does not have contact with the minor
child.
[29] Each party to pay their own costs.
__________________________
FRANCK, A J
Date of hearing : 23 September 2025
Date of judgment : 25 September 2025
Legal representation :
For Applicant :
Counsel : Advocate W J Bezuidenhout
12
E-mail : advwillem@gmail.com
Tel : 082 780 6067
Attorneys : SKV Attorneys
Tel : 011 761 2392
E-mail : psmith@skvattorneys.co.za
For Respondent :
Counsel : Advocate F Bezuidenhout
Cell : 072 809 8690
E-mail : ciska@ciskabez.co.za
Attorneys : Kampel Kaufmann Attorneys
Tel : 011 483 0966
E-mail : paul@kkalaw.co.za
1 Answering affidavit, paragraph 64, CaseLines 004-23
2 SH v MLH 2025 JDR 4013 (ECGq) at [17]
3 Answering affidavit, paragraph 66, CaseLines 004-23
4 Answering affidavit, paragraph 4-6, CaseLines 004-4 to 004-5
5 A legible copy of Annexure “AA17” is found at CaseLines 004-228 to 004-229
6 Smith NO v Brummer NO; Smith NO v Brummer 1954 (3) SA 352 (O) at 358 A and Du
Plooy v Anwes Motors (Edms) Bpk 1983 (4) SA 212 (O) at 216 H to 217 A
7 Junkeeparsad v Solomon and Another (37003/2019; 37456/2019) [2021] ZAGPJHC 48 (7
May 2021
8 2008 (4) SA 535 (W) at paragraph [23]
13
9 2024 JDR 0448 (GP) at paragraph [12]