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
KWAZULU-NATAL LOCAL DIVISION, DURBAN
Reportable
CASE NO: D6383/2024
In the matter between:
C[...] N[...] APPLICANT
and
I[...] G[...] R[...] RESPONDENT
This judgment was handed down electronically by circulation of the parties’ representatives by email and released to
SAFLII. The date for hand down is deemed to be on 28 October 2025 at 13:15pm
ORDER
The following order shall issue:
1. The interlocutory application for the referral of the main application to trial is
dismissed;
2. The main application is dismissed.
3. The applicant is directed to pay the costs of both the main and the
interlocutory applications on an ordinary party and party scale, including the
costs of counsel, according to scale A.
2
4. With effect from the first Friday immediately succeeding the date of this order
the respondent shall be entitled to have contact with the child, ZGR, a boy,
born on 12 February 2019, during school term times as follows:
4.1 For a period of two months:
4.1.1 every alternate weekend from after school or aftercare on
Friday when the respondent shall collect the child from school
until Saturday at 17h00 when the respondent shall return the
child to the applicant at the Fields Hill Shell petrol station and
from 09h00 to 17h00 on Sunday with the respondent to collect
the child from and return him to the applicant at the Fields Hill
Shell petrol station;
4.1.2 every Thursday from after school or aftercare when the
respondent shall collect the child from school until Friday
morning when the respondent shall drop the child at school.
4.2 After the lapse of the aforesaid two-month period and for a further
period of two months, the respondent shall have contact with the child
as follows:
4.2.1 every Thursday from after school or aftercare when the
respondent shall collect the child from school until Friday
morning when the respondent shall drop the child at school;
4.2.2 every alternate weekend from Friday after school or aftercare
when the respondent shall collect the child from school until
Sunday at 17h00 when the respondent shall return the child to
the applicant at the Fields Hill Shell petrol station;
4.2.3 should the Friday preceding or the Monday succeeding the
weekend be a public holiday, the public holiday shall form part of
the weekend and in the event of the Monday being a public
holiday, the child shall spend Monday night with the respondent
who shall drop the child at school the following Tuesday
morning.
4.3 After the lapse of the second two-month period referred to in paragraph
5.4 above, the respondent shall have contact with the child as follows:
4.3.1 every Thursday from after school or aftercare when the
4.3.1 every Thursday from after school or aftercare when the
respondent shall collect the child from school until Friday
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morning when he shall drop the child at school;
4.3.2 every alternate weekend from Friday after school or aftercare
when the respondent shall collect the child from school until
Monday morning when the respondent shall drop the child at
school;
4.3.3 should the Friday preceding or the Monday succeeding the
weekend be a public holiday, the public holiday shall form part of
the weekend and in the event of the Monday being a public
holiday, the child shall spend Monday night with the respondent
and he shall drop the child at school the following Tuesday
morning.
4.4 During the December 2025/January 2026 school holidays:
4.4.1 the child shall spend alternating periods of seven consecutive
nights with the respondent and seven consecutive nights with
the applicant;
4.4.2 the seven-night periods shall commence at 09h00 on the first
day of each period with effect from 09h00 on the day after
school closes for the holidays;
4.4.3 all handovers shall take place at the Fields Hill Shell petrol
station.
4.5 With effect from the March/April 2026 school holiday, all school
holidays shall be divided into two equal halves and the child shall
spend one half of each school holiday with the applicant and the other
half with the respondent with the halves to alternate each year.
Handovers shall take place at the Fields Hill Shell petrol station.
4.6 The respondent shall have contact with the child on Fathers’ Day from
09h00 to 17h00 should that day fall during a weekend when the
respondent is not having contact with the child and the applicant shall
be entitled to have contact with the child on Mothers’ Day from 09h00
to 17h00 should that day fall during a weekend when the child is having
contact with the respondent. Handovers shall take place at the Fields
Hill Shell petrol station.
4.7 On the respondent’s birthday, should the birthday fall on a day when
the child is attending school, the respondent shall have contact with
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him from after school until school commences the following day. Should
the birthday fall on a weekend when the respondent is not having
contact with the child, he shall be entitled to have contact with the child
from 09h00 to 17h00. The applicant shall be entitled to have the same
contact with the child on her birthday should it fall on a day when the
respondent is having contact with the child. Handovers shall take place
at the Fields Hill Shell petrol station.
4.8 On the child’s birthday:
4.8.1 should the birthday fall during a weekend, the party with whom
the child is not spending the weekend shall be entitled to have
contact with him from 08h00 to 13h00 or from 13h00 to 18h00,
with handovers to take place at the Fields Hill Shell petrol
station;
4.8.2 should the birthday fall on a day when the child is attending
school, the party with whom the child is not staying shall be
entitled to have contact from after school, when he or she shall
collect the child from school, until 17h00 when he or she shall
return the child to the other party at the Fields Hill Shell petrol
station.
4.9 In respect of Christmas, the party with whom the child is not staying at
the time shall be entitled to have contact with the child from 12h00 on
24 December until 12h00 on 25 December. Handovers shall take place
at the Fields Hill Shell petrol station.
4.10 On Good Friday the party with whom the child is not staying at the time
shall be entitled to have contact with the child from 08h00 to 13h00 or
from 13h00 to 18h00. Handovers shall take place at the Fields Hill Shell
petrol station.
4.11 All public holidays, other than those dealt with above in paragraphs 4.2,
4.3, 4.9 and 4.10, shall alternate between the parties.
4.12 In the event of the child being ill, the respondent shall nevertheless be
entitled to exercise the contact provided for in paragraphs 4.5 to 4.11
above unless otherwise agreed to by the parties in writing. If the child is
above unless otherwise agreed to by the parties in writing. If the child is
not attending school due to illness on a day when the respondent is
due to collect the child from school, handovers shall take place at the
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Fields Hill Shell petrol station.
4.13 The respondent shall be entitled to have telephonic and video contact
with the child at 17h00 on the days when he does not have physical
contact with the child.
4.14 The respondent, after informing the applicant, is hereby authorized and
directed to arrange for the child to attend therapy with either Lauren
Snailham or Melinda Howlett (‘the psychologist’) and to provide a
mandate to the psychologist to render therapy for the child without the
need for the applicant’s consent thereto, provided that the applicant
had been informed and has unreasonably withheld her consent.
4.15 Each party is directed:
4.15.1 to ensure that the child attends all therapy sessions which are
scheduled for the child by the psychologist at times when the
child is in his or her care;
4.15.2 to attend any therapy session if required to do so by the
psychologist;
4.15.3 to pay 50 per cent of the costs of the child’s therapy sessions
with the psychologist in the event they are not covered by the
respondent’s medical aid scheme and to pay in full for the costs
of any individual therapy session which he or she may have
with the psychologist.
4.15.4 the obligation to pay 50 per cent of the fees for a psychologist
only applies when the psychologist had been agreed and
consented to by both the applicant and the respondent.
4.16 Paragraphs 4.1 to 4.15 above supersede and replace paragraph 4 of
the order on 4 August 2022 under case number D5777/2022,
paragraph 1 of the order granted on 2 July 2024 under case number
D5383/2024 and paragraph 6 of the order granted on 19 August 2024
under case number D6383/2024.
JUDGMENT
6
Notyesi AJ
Introduction
[1] The applicant instituted these proceedings before this court seeking for an
order that the respondent’s contact with the parties’ minor child, whom I shall refer to
as “ZGR”, to be suspended. The applicant and the respondent are divorced. Their
marriage had produced one minor child, ‘ZGR’. In terms of the divorce order, primary
care and residence were awarded to the applicant, subject to the rights of access
and phased contact of the respondent.
[2] The application is predicated on the serious allegations of abuse, which
includes abuse of a sexual nature, said to have been committed by the respondent
upon ZGR. According to the applicant, the source of the allegations of abuse is ZGR.
Based on the alleged abuse of ZGR as a minor child by the respondent, the
applicant is contending that it is no longer in the best interests of ZGR for the
respondent to retain rights of contact. The relief sought is opposed by the
respondent.
[3] The respondent is disputing the allegations that he had abused and violated
ZGR. He had contended that the applicant is the source of the allegations against
him and not ZGR. The respondent is seeking for the retention of the existing
custodial and rights of contact arrangements with ZGR which are in terms of the
divorce order.
[4] A few weeks preceding the date of hearing, the applicant brought an
interlocutory application on 1 August 2025, seeking for the referral of the matter for
trial. In this application, the applicant had contended that a substantial dispute of
material facts has arisen in the main application.
[5] That interlocutory application, too, is opposed by the respondent. The
respondent is contending that the alleged disputes of fact are not material and that
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they are not genuine or bona fide to warrant a referral for trial. The respondent had
contended that the interlocutory application is a stratagem of the applicant to delay
finality.
History of litigation before this Court
[6] The application was instituted on 5 June 2024 and it was placed on the urgent
roll of 2 July 2024. Following such hearing, the court only allowed the respondent
restricted and supervised contacts with ZGR. In addition, to the restricted contacts,
the court directed for the Family Advocate to provide a report on or before 18 August
2024. The relevant parts of the order provide as follows:
‘2. The parties are directed to attend the scheduled Family Advocate enquiry on 17 July
2024 at 09h00.
3. The Family Advocate is requested to provide its report (and interim, if necessary,
report is only interim in nature) on or before the 18th of August 2024.
4. In the interim report, the Family Advocate shall make suitable suggestions, if any, on
the section of telephonic contact between the fortnightly access periods.’
[7] On the return date of 19 August 2024, the Family Advocate’s report was
delivered, and whereafter the court directed for the appointment of a forensic
psychologist to assess and investigate the dispute. The relevant part of the order is
set out below:
‘1. The application is adjourned sine die.
2. A forensic psychologist shall be appointed to assess the issues in dispute in this
matter.’
[8] No material developments of the case had taken place since 19 August 2024
until June 2025. The respondent set down the matter for final hearing on 20 August
2025. Following the set down of the application, the applicant instituted the
interlocutory application. Due to the issues being interwoven, this Court had directed
for the instantaneous hearing of the applications.
Material facts
[9] The parties are the biological parents of ZGR. They share the rights and legal
duties in respect of him. The dispute arises from issues related to contacts with ZGR
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by the respondent.
[10] It is common cause that the dispute about such contact rights of the
respondent had, at some stage, led to the institution of contempt of court against the
applicant. That was on the applicant refusing access of the respondent to ZGR. On
29 June 2023, following the hearing of such contempt, the court issued an order
against the applicant to comply with the order of divorce regarding access rights and
contacts of ZGR by the respondent. The relevant parts of the order read as follows:
‘3. Pending the return date, the Respondent is directed to forthwith comply with the
Order of this Honourable Court dated 4 August 2022, under case number
D5777/2022.’
[11] On 8 September 2023, the contempt proceedings were postponed sine die,
with the rule nisi extended accordingly.
[12] In instituting these proceedings, the applicant is alleging that on or about July
2023, she had a suspicion that ZGR had been exposed to sexual abuse. Her
suspicion was grounded by certain unfamiliar conduct of ZGR, as a minor child.
According to the applicant, she caught ZGR masturbating by stroking his penis. ZGR
was only about four years old. She questioned ZGR. The response of ZGR was he
had been taught that by a certain man with a red hat. Below is the alleged response
by ZGR:
‘the man in the red hat told me to touch my booya (referring to penis) and told me it is good
for me.’
The full identity of the man was not revealed to the applicant by ZGR at that time.
[13] According to the applicant, prior to the incident of July 2023, ZGR had, at
times, exhibited some signs of having been exposed to acts of abuse. The applicant
alleged that ZGR would refuse overnight contact with the respondent. The applicant
further alleged that ZGR had also shown behavioral changes, such as anxiety, fear,
and clinginess and of performing sexual acts on other children at school.
[14] According to the applicant, she had communicated her observations of ZGR
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to the respondent.
[15] The identity of ‘the man in the red hat’ was only disclosed to the applicant on
10 January 2024. On this day, ZGR, had allegedly revealed that the respondent was
the man with the red hat. Resulting from such revelation of the identity of the
respondent, the applicant took ZGR to Dr Ananth, for observation. She also opened
a criminal case against the respondent and that case was registered under case no:
292/1/2024. The applicant was advised to submit a J88 form to the district surgeon
at Tutuzela Clinic, R K Khan Hospital. The applicant and ZGR started to attend
consultations with a clinical psychologist, Ms Nicole Smith (‘Ms Smith’). The
respondent was later charged for the sexual abuse.
[16] The respondent was thereafter released on bail with bail conditions which
restrained him from having contact with ZGR.
[17] The applicant had also alleged that, after the respondent was charged, she
notified the school about the allegations and charges against the respondent.
Despite such notification to the school, and to her surprise, the respondent was
allegedly allowed contact with ZGR by the school.
[18] The applicant had expressed her concern that, should these allegations prove
to be true, ZGR stands to suffer irreparable harm, physically and psychologically.
Therefore, the applicant asked for the suspension of the order issued on 4 August
2022 relating to the contacts of ZGR by the respondent.
[19] The respondent has disputed the allegations of sexual abuse of ZGR.
According to him, the allegations of sexual abuse are a mere retaliation of the
applicant following the contempt proceedings. The respondent stated that from the
date of the divorce, the applicant has frustrated his rights of access and contact with
ZGR. He also disputed that he contacted ZGR whilst at school as alleged by the
applicant. The teachers had also disputed the alleged contact of ZGR by the
applicant. The teachers had also disputed the alleged contact of ZGR by the
respondent. An affidavit from the school teacher and a letter of the school principal
has been filed in support of the respondent’s version. Regarding the matter of taking
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ZGR for therapy at the request of the applicant, the respondent confirmed that he
had agreed for that arrangement. According to the respondent, a session was
scheduled for 5 January 2023. The respondent alleged that the applicant failed to
ensure ZGR’s attendance on the scheduled date. The respondent further stated that
he had been personally unable to attend the therapy due to the restrictions of the
order against him.
[20] The respondent also averred that the criminal case that was instituted by the
applicant was withdrawn for lack of evidence. The respondent pointed out that the
J88, social worker report and the forensic psychologist report do not collaborate the
allegations against him. The respondent confirmed that he had a close relationship
with ZGR. He denied that he had committed any harmful acts or undermined the
best interests of ZGR.
The expert reports
[21] Ms Smith, a psychologist, provided two reports. These reports are dated 8
March and 20 May 2024. In these reports, Ms Smith recorded that she only
interviewed the applicant and ZGR. She stated that she was informed by the
applicant that ZGR had engaged in inappropriate sexual behavior at home and at
school. According to Ms Smith, ZGR appeared to have conflictual feelings towards
his father which included feelings of fear, but also reference to good experiences.
She had also recorded the allegations of ZGR regarding the abusive behavior of the
respondent and his alleged friends.
[22] The Family Advocate’s report had been filed. According to the report, an
enquiry was conducted on 17 July 2024 by Menzi Mdunge (‘Mdunge’), a registered
social worker and family counsellor. The purpose of the enquiry was to determine the
exercise of parental responsibilities and rights in respect of ZGR. Mdunge had also
submitted her own report which forms part of the Family Advocate report. In
preparation of such reports, the applicant and the respondent were interviewed. ZGR
preparation of such reports, the applicant and the respondent were interviewed. ZGR
was also assessed. Additionally, all previous reports and police investigations were
considered by the family counsellor. The relatives were also interviewed.
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[23] The observations of the family counsellor were that the applicant and
respondent shared an acrimonious relationship following their divorce. In the view of
the family counsellor, the applicant and respondent had not healed from the
aftereffects of the divorce and recommended that both parties seek counselling to
address the ongoing conflict between them.
[24] The Family Advocate had recorded these instructive remarks:
‘I am advised by the Family Counsellor that he has investigated the allegations raised
unfortunately it could not be established the veracity of the allegations. The matter has been
withdrawn, (sic) however the psychologist report is still outstanding. Accordingly, we need to
err on the side of caution and attach a precautionary clause, that the Respondents contact
with the child is to be supervised.’
[25] The Family Advocate had recommended for supervised and shared parental
responsibilities, access, and rights in respect of ZGR, by the respondent, pending
filing of a forensic psychologist report. The parts of the Family Advocate report, in
this regard, record as follows:
‘7.3 The Respondent shall exercise supervised rights of contact to ZGR as follows:
• Every alternate weekend Saturday and Sunday from 10h00 to 16h00.
• Daily telephonic contact inclusive of video calls.
• Sharing of ZGR’s birthday.
• Mother’s Day and Father’s Day with the respective parent times as above.
• The above contact is subject to it being supervised by the paternal
grandmother.’
[26] A report by Captain Gcabashe (‘Gcabashe’) of the South African Police
Service (‘SAPS’) has been filed and that report was part of the criminal investigation.
Gcabashe has 23 years of work experience as a social worker. In those 23 years, 14
years of her experience was working with children. In her report, Gcabashe alleged
that she had conducted interviews with ZGR. The purpose of her report relates to
12
ZGR’s developmental stage, his ability to communicate, recollection of information
and the ability to distinguish between the truth and a lie. Gcabashe alleged that she
had followed established procedures in conducting child investigation. On her
evaluation, Gcabashe recorded as follows:
‘ZGR is 5 years old and he is functioning at the pre-Operational stage according to Piaget’s
theory. He disclosed information about the alleged incident of sexual abuse and he also
indicated that his mother told him the story for the talk. During further questioning the child
concerned was unable relate to incident of sexual abuse. This revealed that there is high
possibility that the child concerned was couched about the alleged incident of sexual abuse
since the parents are also divorced.’
[27] Additionally, Gcabashe, in her conclusions, recorded the following:
‘Although the child concerned was able to identify between right and wrong, he disclosed
information about the alleged incident of sexual abuse, but he indicated that his mother told
him the story for the talk.’
[28] Further documents that had been filed included a letter recording the
withdrawal of the charges. The letter reads as follows:
‘This letter confirms that the above-named accused was charged on Pinetown CAS
292/01/2024 and the case was withdrawn by Senior Public Prosecutor at Pinetown court on
2024-10-25 for insufficient evidence.’
[29] A clinical psychologist, Mr Willows had also filed a report. He had been
appointed by the KwaZulu-Natal Family Law Forum, following a court order of 19
August 2024. In the report, Mr Willows confirmed that he conducted a full
psychometric assessment on the respondent and interviewed ZGR. The applicant
did not avail herself for the interview. Mr Willows confirmed to have requested the
applicant to present herself for an interview, and that he had sent emails directly to
the applicant without success.
the applicant without success.
[30] In his report, Mr Willows had described the co-parenting relationship of ZGR
by the parties as hostile and uncooperative, post their divorce. In this regard, Mr
Willows recorded that he had been informed by the respondent that there was no
13
communication between the parties concerning the welfare of ZGR relating to health
and education progress.
[31] Mr Willows had concluded, after his investigations, that there were no reasons
to recommend any restriction on the contact between ZGR and the respondent. He
could not find any reliable evidence to support the allegations of sexual abuse or that
the respondent was an abusive or neglectful parent.
[32] This Court was also furnished with the report of the Chief Clinical Psychologist
for the Ethekwini District prepared by Mr Suntosh R Pillay. The report had followed a
referral of ZGR by the Director of Public Prosecution. The report recorded a
favourable history on the education of ZGR. These are some of the conclusions from
the report:
‘a. ZGR is functioning within the expected intellectual range for a 5-year-old.
b. ZGR is not a mentally disabled witness.
c. ZGR can testify about the alleged crime, provided the questions are phrased simply,
clearly, and age-appropriately; and sufficient time is provided for him to articulate a
response.
d. Testifying in an open court will cause Zander undue anxiety, stress and harm, and an
intermediary is essential.’
[33] A report by the clinical social worker, Hannah (Annie) Varaden (‘Varaden’),
was also filed by the applicant. In her report, it was proposed that care and contact
arrangements of ZGR needs to be changed. The child’s contact with the biological
father needs to be supervised by a neutral professional person for a period. In
preparation of that report, the respondent was not invited nor interviewed by
Varaden.
Issues for determination
[34] This Court must determine the following issues:
(a) Whether there is a dispute of fact;
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(b) Whether the matter should be referred for oral evidence, if not;
(c) The main application regarding suspension of the contact with ZGR, if not
granted;
(d) What would be in the best interests of ZGR; and
(e) The appropriate order of costs.
(a) The applicant’s contentions
[35] It was submitted on behalf of the applicant that there are material disputes of
fact which could not be resolved on papers. Counsel for the applicant stressed that
there is a need to test the opinions of expert psychologists under cross-examination.
Based on those submissions, counsel had urged the court to refer the matter for trial.
Counsel had relied on the authority of Room Hire Co. (Pty) Ltd v Jeppe Street
Mansions (Pty) Ltd.1 In Room Hire,2 the court outlined the principal ways or
circumstances in which a dispute of fact may arise in motion proceedings, which
include:
‘(i) When the respondent denies all the material allegations made by the various
deponents on the applicant’s behalf, and produces or will produce, positive evidence by
deponents or witnesses to the contrary. He may have witnesses who are not presently
available or who, though adverse to making an affidavit, would give evidence viva voca if
subpoenaed.
(ii) When the respondent admits the applicant’s affidavit evidence but alleges other facts
which the applicant disputes.
(iii) When the respondent concedes that he has no knowledge of the main facts stated by
the applicant, but denies them, putting the applicant to the proof and himself gives or
proposes to give evidence to show that the applicants and his deponents are biased and
untruthful or otherwise unreliable, and that certain facts upon which the applicant relies to
prove the main facts are untrue. The absence of any positive evidence possessed by a
respondent directly contradicting the applicant’s main allegations does not render the matter
free of a real dispute of fact.’
1 Room Hire Co. (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) SA 1155 (T) (‘Room Hire’).
2 Ibid.
15
[36] Applicant’s counsel also indicated that the applicant intends to call her own
forensic psychologist and that the applicant was ready and willing to co-operate with
the investigation conducted by Mr Willows.
[37] It was further contended on behalf of the applicant that, when deciding on the
best interests of the minor child, this Court exercises its discretion grounded in a
judicial investigation into all relevant factors of what is in the best interests; and in
doing so, must consider the physical, psychological, and emotional wellbeing of the
child. Counsel pointed out that other experts have raised concerns about ZGR’s
wellbeing and the impact that the serious allegations of abuse had on him. Whilst on
the other hand, the clinical psychologist had recommended that the respondent be
allowed full contact without restrictions. The submissions, on behalf of the applicant,
are that these conflicting opinions need to be tested and evaluated in oral hearing.
[38] Counsel for the applicant had also called into aid the authority of National
Director of Public Prosecutions v Zuma,3 where it was stated:
‘Motion proceedings, unless concerned with interim relief, are all about the resolution of legal
issues based on common cause facts. Unless the circumstances are special they cannot be
used to resolve factual issues because they are not designed to determine probabilities.’
[39] The applicant had relied on the provisions of Rule 6(5)(g)4 as the foundation
of the application and urged the court to refer the matter for trial. This aspect is dealt
with in due course.
3 National Director of Public Prosecutions v Zuma [2009] ZASCA 1; 2009 (2) SA 277 (SCA) para 26.
4 Rule 6(5)(g): ‘Where an application cannot properly be decided on affidavit the court may dismiss
the application or make such order as it deems fit with a view to ensuring a just and expeditious
decision. In particular, but without affecting the generality of the aforegoing, it may direct that oral
evidence be heard on specified issues with a view to resolving any dispute of fact and to that end may
order any deponent to appear personally or grant leave for such deponent or any other person to be
subpoenaed to appear and to be examined and cross-examined as a witness or it may refer the
matter to trial with appropriate directions as to pleadings or definition of issues, or otherwise.’
16
[40] Regarding the merits, counsel for the applicant had contended that it was not
in the best interests of ZGR for continued contact with the respondent as well as the
sharing of the residence. Counsel had stressed the seriousness of the allegations
made against the respondent. Regarding onus, it was contended on behalf of the
applicant that there is no real onus of proof as this matter involved the best interests
of the minor child. The applicant’s counsel stressed that the court, as an upper
guardian, is required to consider the evidence and based on the evidence available,
determine the matter with due regard to the best interests of the minor.
[41] The applicant’s counsel had buttressed the point that there are conflicting
recommendations from the office of the Family Advocate and clinical psychologist,
Mr Willows. Counsel had criticised Mr Willow’s report on the ground that he did not
interview the applicant.
The respondent’s contentions
[42] The respondent’s counsel had sought for the dismissal of both the
interlocutory and the main applications. She had contended that there is no genuine
or material disputes of fact and that the matter is capable of being resolved on the
papers. The respondent’s counsel submitted that it is well established under the
Plascon-Evans5 rule that where in motion proceedings disputes of fact arise on the
affidavits, a final order can be granted only if the facts averred in the applicant’s
affidavits, which have been admitted by the respondent, together with the facts
alleged by the respondent, justify such an order. It may be different if the
respondent’s versions consist of bald or uncreditworthy denials, raises fictitious
disputes of fact, is palpably implausible, far-fetched, or so clearly untenable that the
court is justified in rejecting them merely on the papers.
[43] It was submitted on behalf of the respondent that it has been shown that the
allegations of the applicant are not credible and consists of falsified facts. Counsel
allegations of the applicant are not credible and consists of falsified facts. Counsel
for the respondent had emphasised that the matter is disposable based on the
reports of the experts. In her submission, counsel had conceded that because the
5 Plascon-Evans. See also Thint (Pty) Ltd v National Director of Public Prosecutions and Others,
Zuma and Another v National Director of Public Prosecutions and Others [2008] ZACC 13; 2009 (1)
SA 1 (CC) paras 8-10.
17
case involved the best interests of a minor, the court should be slow in its application
of the Plascon-Evans6 rule and thus it ought to act with caution. I agree with this
submission. In P v P,7 it was stated:
‘The court conducts an investigation into the matter, a process in which it may act more
inquisitorially than would be acceptable in adversarial proceedings. Nevertheless, there is
authority that where a parent seeks a relocation order which amounts to a variation of a
divorce order, it is for such parent to establish on a balance of probability that a variation
should be granted (Jackson supra 307G-H and cases there cited – although Cloete AJA’s
was a minority judgment, the majority did not express disagreement with the legal principle).’
[44] The respondent’s counsel had urged the court to consider the application
based on common cause facts and the inherent probabilities that could not be
realistically disputed or challenged. It was contended, on behalf of the respondent,
that the applicant had approached the court based on the allegation of sexual abuse
of ZGR.
[45] The respondent had also submitted that the conduct of the applicant should
be considered. In this regard, this court was pointed to the history of the applicant
refusing contact with ZGR by the respondent. Counsel stressed the issue of the
contempt of proceedings previously launched and the resultant court order. For his
proposition, counsel relied on the authority of South Coast Furnishers CC v Secprop
30 Investments (Pty) Ltd,8 where it was held as follows:
‘I conceive that the test to be applied as to whether a genuine factual dispute has been
raised on the papers is similar in nature to that in a trial at the point where the plaintiff’s case
has been closed and absolution is sought before the defence is embarked upon. Here, the
test is whether there is evidence upon which a reasonable presiding officer might or could
test is whether there is evidence upon which a reasonable presiding officer might or could
find for the plaintiff. If there is, absolution should be refused. The court does not enter into an
evaluation of the credibility of witnesses unless they have ‘palpably broken down, and where
it is clear that they have stated what is not true’. Similarly, in motion proceedings, a robust
approach can only be taken, and the matter decided on the probabilities, if that clear falsity
emerges from the papers.
6 Plascon-Evans.
7 P v P [2019] ZAWCHC 174 para 69.
8 South Coast Furnishers CC v Secprop 30 Investments (Pty) Ltd 2012 (3) SA 431 (KZP) para 15.
18
[46] Counsel had contended that in view of the report of Gcabashe, who had
assessed ZGR, there should be no doubt that the child was coached by the
applicant. In this regard, counsel heavily relied on the SAPS social worker report
which concluded that there was a high probability that the child had been coached to
make the allegations. In addition to this contention, counsel had then put into
question the refusal of the applicant to cooperate with Mr Willows during the
investigations.
[47] On behalf of the respondent, it was further contended that the application for
referral of the matter to trial is a mere attempt by the applicant to delay the
respondent’s unrestricted access to ZGR. Counsel had urged this court to closely
examine the alleged dispute of fact and decide whether a genuine dispute of fact
exists that cannot be resolved on the papers alone, thus resulting in the requirement
for oral evidence.
[48] Regarding the main application, the counsel had submitted that there are no
valid reasons for the suspension of the rights of access and contact of the
respondent with ZGR. It was further submitted that the primary purpose of the main
application was to permanently suspend the respondent’s contact with ZGR. The
contention was that, the applicant was therefore obliged to make a case for the
permanent suspension of that access, which, according to the respondent, the
applicant failed.
[49] I consider all these contentions.
Whether there is a dispute of fact
[50] Under rule 6(5)(g), this Court, in addition to its broader discretional powers,
has three alternatives; first, it may dismiss the application; second, it may direct that
oral evidence be heard on specified issues and third, it may refer the matter to trial. I
also agree with the applicant that this Court has a discretion to order that the matter
be referred for trial. However, that is not the only option. It will be materiality of
be referred for trial. However, that is not the only option. It will be materiality of
disputes or the weight of reasons that would lead for the referral of the matter to oral
19
evidence.
[51] The Supreme Court of Appeal has cautioned that a court should be astute to
prevent an abuse of its process in such a situation by an unscrupulous litigant intent
on delay or a litigant intent on a fishing expedition to ascertain whether there might
be a defence without there being any credible reason to believe that there is one.9
This means that the court must scrutinise the application and determine whether the
circumstances set out in Room Hire,10 have been established or any of them have
given rise on the facts. This is a true discretion.
[52] In the exercise of this Court’s discretion on whether to refer the matter to trial
or not, these considerations are relevant:
(a) the case is about the best interests of the child;
(b) the parenting rights of both parties;
(c) the serious allegations against the respondent;
(d) the possible impact on the rights of access by the respondent to ZGR;
(e) the outcome of the investigations onto the allegations;
(f) all the expert reports filed before this Court;
(g) the effect of the withdrawal of the criminal case by the State;
(h) the report of SAPS social worker;
(i) the Family Advocate report filed on 19 August 2024;
(j) the forensic investigation report of the court appointed psychologist;
(k) the reasons of the requested referral to trial and, (the prolonged delay before
reaching finality).
[53] I also hold a view that this Court is entitled, in its process of evaluating the
reports and the entirety of evidence, to consider the conduct of the parties during
investigations. I must remark that the litigation history in this matter is unsatisfactory.
It is undesirable to prolong any litigation involving minor children. As a matter of
principle, the best interests involving minor children must be expeditiously
9 Minister of Land Affairs and Agriculture and Others v D&F Wevell Trust and Others [2007] ZASCA
153; 2008 (2) SA 184 (SCA) (‘D&F Wevell Trust’) at 205.
10 Room-Hire.
20
determined. Where there are allegations of abuse of a minor, there is more urgency
for finalisation of the matter. The protracted litigation and exchange of documents
with repeated court appearances, must on their own, traumatise both the parents
and the minor child.
[54] Once the interim relief was granted on 19 August 2024, the applicant showed
loss of appetite for the finality of the case. The case had been moriband until the
resuscitation by the respondent. Whilst the court had ordered the parties to appoint a
forensic psychologist, they could not do so. That must have caused further delays on
the finality. I propose to consider the reports at this stage.
[55] It would be on the consideration of these reports and the totality of the
evidence which would determine the application for trial. Whether the disputed
issues have any bearing on the question relating to the suspension of the rights of
contact by the respondent can only be resolved by a close examination of the
alleged disputes. It is well to remember that this Court is not determining the
allegations themselves. What should be looked at is the source of these allegations
and whether they can be established in order to deprive the respondent of his
parental rights in due course. If the allegations emanate from a totally unreliable
source, there would be no basis to refer the matter for oral evidence.
[56] In my view, the application for referral of the matter is premised on flimsy
reasons. The summary of those reasons is:
(a) the applicant seeks for a second chance to be interviewed by Mr Willows;
(b) the applicant seeks for an opportunity to appoint her own clinical psychologist;
(c) she also seeks for an opportunity to cross-examine the various experts.
[57] All these reasons stand to be rejected. First, the applicant, on her own accord,
declined an available opportunity offered by Mr Willows for an interview; second, she
was never refused any right to appoint her own psychologists; and third, the
was never refused any right to appoint her own psychologists; and third, the
applicant had not set out the nature and extent of the evidence to be led by the
21
intended expert or additional witnesses; there is no explanation for her failure to
timely call for such evidence; the applicant has not offered any contrary expert
opinion to dispute the reports already filed; and, most significantly, the criminal case
had already been withdrawn due to lack of evidence.
[58] In my view, all these considerations should weigh heavily against the referral
of the matter. That must not be the end. This Court must examine the applicant’s
explanations for her inaction.
[59] The applicant merely attributes her behaviour on ignorance as she alleges
herself to be a lay person and that she feared the respondent. These reasons are
not convincing and should outrightly be rejected. The applicant had previously
denied the respondent access rights to ZGR. That was a contravention of the court
order. Even in the subsequent contempt proceedings, the applicant had sought to
blame her ignorance and relied on being a layperson. In this interlocutory
application, she has averred:
‘My attorney advised me at the time that the order of 19 August 2024 provided that the
respondent and I must agree upon the identity of a forensic psychologist within one week of
the date of the order, with the purpose of this forensic psychologist conducting a forensic
investigation into this matter.
I was also informed by my attorney that if the respondent and I were unable to agree upon
the psychologist, the chairperson of the KwaZulu-Natal Family Law Forum would nominate
the forensic psychologist and we would be obliged to co-operate with that person so
nominated.’
[60] In her own version, the applicant did not agree with the respondent regarding
the appointment and identity of the forensic psychologist, as ordered by the court. It
is obvious that, in accordance with the court order, the KwaZulu-Natal Family Law
Forum was obliged to appoint the forensic psychologist. There could never have
been any basis to doubt the involvement of Mr Willows in the dispute.
been any basis to doubt the involvement of Mr Willows in the dispute.
[61] I have no doubt that the applicant was always aware about the need to be
interviewed by a forensic psychologist. A reasonable litigant in the position of the
22
applicant would have taken reasonable steps after the lapse of the period referred to
in the court order. I therefore reject the submission that the applicant is a layperson.
Mr Willows had sent correspondence to the applicant. The applicant is not an
unsophisticated litigant. She is recorded to hold a B.Com Management. In my view,
the true intention of the application for referral to trial is to supplement the applicant’s
case.
[62] It has been repeatedly stated that a litigant’s case stands or falls on his own
averments. A party may not seek to lead oral evidence to make out a case for the
first time, by way of such oral evidence, where his case is not already made out by
his own on the papers.11 The Supreme Court of Appeal in D&F Wevell Trust,12 and
with reference to the matter of Carr v Uzent,13accepted that the referral to oral
evidence must fall within the factors enunciated in Room Hire14 and the Plascon-
Evans15 decisions. In Carr,16 it was said that:
‘In my opinion, in his affidavits, read as a whole, to make out this case, and Rule 9 was
never designed to enable an applicant to amplify affidavits by additional evidence where the
affidavits themselves, even if accepted, do not make out a clear case, but leave the case
ambiguous, uncertain, or fail to make out a cause of action at all.’
[63] Having regard to all the circumstances of this case, the general conduct of the
parties and the available objective evidence, I am of the view that the disputes
arising are of a peripheral nature to the main issue.
[64] I am mindful that the methods outlined in the Plascon-Evans17 on resolution of
disputes in cases of this nature, should not be readily invoked. In B v S,18 it was held:
‘In addition it seems to me to be necessary to lay down that where a parental couple’s
access (or custody) entitlement is being judicially determined for the first time – in other
words where there is no existing Court order in place – there is no onus in the sense of an
11 D&F Wevell Trust.
11 D&F Wevell Trust.
12 Ibid para 58.
13 Carr v Uzent 1948 (4) SA 383 (W) (‘Carr’).
14 Room Hire.
15 Plascon-Evans.
16 Carr at 390.
17 Plascon-Evans.
18 B v S 1995 (3) SA 571 (A) (‘B v S’) at 584-585.
23
evidentiary burden, or so-called risk of non-persuasion, on either party. This litigation is not
of the ordinary civil kind. It is not adversarial. Even where variation of an existing custody or
access order is sought, and where it may well be appropriate to cast an onus on an
applicant, the litigation really involves a judicial investigation, and the Court can call evidence
mero motu…’
[65] In my view, the B v S19 and other similar judgments do not preclude
determination of the matter based on the Plascon-Evans20 rule in every given dispute
involving custody of a minor child. I agree with the respondent’s counsel in her
submission that the Plascon-Evans 21 rule is applicable subject to the court being
cautious of the matter in dispute.
[66] In B v S ,22 reference is made to a situation where there is no existing court
order in place. In cases such as this , where there is an existing order and the
applicant seeks to suspend such an order based on allegations of a serious nature
such as the present, there would be no reason not to require of the applicant to
produce sufficient evidence. I agree that the court should be very slow to determine
facts by way of the usual opposed motion court approach , even where there is an
existing order , however, that must remain fact specific. The applicant has made
serious allegations and she must bear the evidential duty.
[67] Accordingly, the application for the referral of the matter to oral evidence must
fail.
The main application
[68] Stripped into its essential parts, the main basis of this application are the
allegations of sexual abuse of ZGR. The essence of the contentions being that, if the
allegations are established, that would render it no longer in the best interests of
ZGR to have contact with the respondent in terms of the divorce order. In other
words, for this application to succeed, this Court must be satisfied about the
19 Ibid.
20 Plascon-Evans.
21 Ibid.
22 B v S.
24
truthfulness, even a prima facie view would suffice about these allegations.
[69] It must be accepted that the application is premised on the provisions of s
28(1)(a) of the Children’s Act 38 of 2005. This section empowers this Court to
suspend any or all the respondent’s parental responsibilities and rights for a period
or to terminate completely any or all such parental rights or to limit the parental
responsibilities and rights of the respondent. The section must be read, together with
other subsections, and more particularly, subsection (b). I agree with the
submissions on behalf of the applicant that the allegations of sexual abuse are of a
serious nature and if established, they would negatively impact ZGR and would
undoubtedly adversely affect his best interests. It is therefore crucial that this Court
should closely examine the allegations and the reports filed.
[70] In doing so, this Court is obliged to consider all relevant factors, and most
importantly;
(a) ZGR’s best interests;
(b) the relationship between ZGR and the respondent whose parental
responsibilities and rights are being challenged;
(c) the degree of commitment that the respondent has shown towards ZGR; and
(d) any other fact that should, in this Court’s opinion, be considered, more
particularly that there are these allegations which are prima facie serious.
[71] The power that the court exercises concerning children’s best interests, is not
a discretion in the narrow sense. It is a discretion in the broad sense, a value
judgment in which a court must have regard to several disparate and
incommensurable features so that it could arrive at a just decision. 23
[72] Counsel for the applicant had correctly submitted that the applicant had no
real onus in the conventional sense. This position finds support in M v M,24 where it
was held:
23 Knox DÁrcy and Others v Jamieson and Others 1996 (4) SA 348 (A)
24 M v M [2018] ZAGPJHC 4 para 24.
25
‘This court sits as the upper guardian of all minors within its jurisdiction. The discretion that is
to be exercised when decisions pertaining to the best interests of children are to be made is
unique, and not to be circumscribed in the narrow or strict sense of the word as it is
explained in Bezuidenhout v Bezuidenhout 2005 (2) 187 (SCA) para 17. Satchwell J stated
in LW v DB 2015 JDR 2617 (GJ) para 5 that the discretion to decide whether a child can
accompany a parent who leaves the jurisdiction of the court, requires no onus in the
conventional sense. This approach is in line with the principle set out by the Supreme Court
of Appeal in Jackson v Jackson 2002 (2) SA 303 (SCA) para 5 that where the interests of
minor children are involved, the litigation amounts to a judicial investigation of what is in their
best interests. The Court is not bound by the contentions of the parties. That slavish
adherence to technical procedural requirements might result in a court not being able to
decide an issue in the best interests of a child, has been recognized in the unreported
judgment of Matojane J in DJB v MDP case number 303774/2008 decided in 2010 in the
North Gauteng High Court, Pretoria, para 12. Here, the court held that the most important
consideration in the case is the physical, psychological, and emotional well-being of the
minor child under the circumstances, and that technical procedural objections might shift the
focus and undermine efforts to determine the best interests of the child.’ (Footnote omitted)
[73] As established above, this Court is required to adopt a holistic approach to
the matter. The court must have an overall impression in order to bring a fair mind to
the facts set out by the parties. The opinions of experts and the prevailing
circumstances of the case must be assessed in a balanced fashion for this Court to
render a finding mixed of fact and opinion in a final analysis of what, in a value
render a finding mixed of fact and opinion in a final analysis of what, in a value
judgment, would be in the best interests of ZGR. The court investigates the matter, a
process in which it must act more inquisitorial.25
[74] According to the applicant, she had caught ZGR masturbating by stroking his
penis. That incident occurred in July 2023. Although the applicant was concerned
that ZGR must have been sexually exposed and abused, she took no steps to do
investigations. ZGR had disclosed what the man in the red hat had allegedly done to
him. All that was left was to uncover the identity of the man in the red hat. The
applicant’s inaction in this regard must be put into question. It is doubtful that she
had a suspicion of sexual abuse at that stage.
25 P v P supra at para 69
26
[75] More importantly, ZGR had continued with his contacts and visits to the
respondent. I find merit to the respondent’s submission that in circumstances such
as those, a reasonable and concerned parent would have taken necessary steps to
obtain a professional assessment and sent the child for therapy and an investigation
to be undertaken if there were suspicions of sexual abuse. I may add that it was
instructive to send ZGR for observation in view of the alleged state of sadness,
anxiety, and depression.
[76] I do add, as a further concern of this Court, that the allegations regarding the
applicant’s suspicion of ZGR’s sexual abuse were not raised by the applicant during
the contempt of court proceedings. There is no explanation why the suspicion of
such serious allegations of sexual abuse could not be raised in that application. That
was an available earliest opportunity. Only a few weeks later, following the contempt
order, around July 2023, the applicant started to entertain these suspicions and
considered them in a more serious manner. I have serious doubts that a single act of
a child masturbating would lead to the only conclusion which is that a child might
have been sexually abused. In my view more evidence was required in this regard
and it had not been furnished. The single act of a child caught masturbating cannot
be enough to sustain a conclusion that he had been abused or sexually exposed in
an abusive manner. The behaviour could have been influenced by several factors
such as peer pressure or some television or social media exposure.
[77] The circumstances that had led to the disclosure of the respondent as the
man with the red hat are also not convincing. ZGR had just returned from his mid-
week visit with the respondent. He started drawing pictures of which the applicant
questioned him. The concern of this Court is that there is no explanation of what
exactly attracted the applicant to these drawings. The applicant merely states in her
exactly attracted the applicant to these drawings. The applicant merely states in her
papers that her suspicion had arisen when ZGR became uneasy and afraid. There is
paucity of information in this regard. ZGR, according to the applicant, had drawn a
picture of two persons, the one bigger figure with lots of colouring in red in the head
region with only the eyes showing on the face, and another smaller figure crouching
almost below the large figure. In this Court’s mind, it remains doubtful that such a
27
drawing could ground suspicion of sexual abuse.
[78] I turn to the criminal investigation. The criminal case had been withdrawn due
to insufficient or lack of evidence. The decision had followed the investigations by the
SAPS. Gcabashe had found no basis of the allegations of sexual abuse. This Court
could not find any fault about the report of Gcabashe, and none was advanced on
behalf of the applicant. Gcabashe had concluded that there is prima facie evidence
of suggestibility of the allegations by the applicant to ZGR.
[79] This Court had no contrary report from that of Gcabashe regarding the
investigations of the allegations. In such circumstances, the uncontested report of
Gcabashe, who is independent in the matter, should be given serious consideration
by this Court.
[80] In Schneider NO and Others v AA and Another,26 Davis J discusses the
duties of an expert with reference to some authorities, whereafter he makes the
following statement, with which I agree:
‘In short, an expert comes to court to give the court the benefit of his or her expertise.
Agreed, an expert is called by a particular party, presumably because the conclusion of the
expert, using his or her expertise, is in favour of the line of argument of the particular party.
But that does not absolve the expert from providing the court with as objective and
unbiased an opinion, based on his or her expertise, as possible. An expert is not a hired
gun who dispenses his or her expertise for the purposes of a particular case. An expert
does not assume the role of an advocate, nor gives evidence which goes beyond the logic
which is dictated by the scientific knowledge which that expert claims to possess.’
[81] Accordingly, I accept the uncontested report of Gcabashe and her findings.
[82] In advancing her application, the applicant had relied on the expert opinion of
26Schneider NO and Others v AA and Another 2010 (5) SA 203 (WCC) at 211-212; [2010] 3 All SA
332 (WCC).
28
Ms Smith. The reports are unhelpful. Ms Smith did not list her qualifications or
expertise in the report. She also failed to give details of the methodology of her own
assessment and investigation. It is not apparent from her report whether ZGR was
interviewed separately from the applicant. Significantly, Ms Smith largely repeats the
allegations of the applicant. She did not interview the respondent. These
shortcomings, in my view, creates an imbalance in her assessment and renders the
credibility of her findings questionable in the court’s mind.
[83] For these reasons, whilst I do not reject the report of Ms Smith, I do not place
much reliance thereupon. I agree with what was said in K.O v M.S,27 where the court
stated:
‘In my view the requirements for expert reports should be strictly complied with to ensure
that vulnerable children are protected and not exposed to a situation where they are
expected to satisfy the expectations of a parent(s) and adapt their lives to accommodate a
parent’s needs or the recommendation of an expert.’
[84] Similarly, this Court is not persuaded by the report of Varaden. The report is
lacking in details. The respondent was neither interviewed by Varaden nor afforded
any opportunity for the interview. Clearly, the report is based on the views of the
applicant. The circumstances under which ZGR was interviewed are not set out. This
Court has not been taken into confidence on whether the minor child was
interviewed in a proper manner and in a conducive environment. It would be too risky
to readily accept this report.
[85] In respect of both reports of Ms Smith and Varaden, m y conclusion s are
informed by: (i) the qualifications and the experience of these expert witnesses are
not disclosed; (ii) the lack of support in their conclusions; (iii) the measure of
equivocality with which the y express their opinions ; (iv) the poor quality of their
investigations; (v) and the presence of impartiality which could result in a lack of
investigations; (v) and the presence of impartiality which could result in a lack of
objectivity. On consideration of these aspects, I cannot fully rely thereupon.
27 K.O v M.S [2025] ZAGPPHC 192 para 47.
29
[86] I turn to the Family Advocate and the court appointed forensic psychologist,
Mr Willows.
[87] The Family Advocate held an enquiry. It was conducted by a registered social
worker who is also a family counsellor. All the parties and their relatives were
participating in the enquiry. I find no shortcoming in the Family Advocate report.
[88] This Court therefore accepts the Family Advocate and the family counsellor
reports. In these reports, the allegations of sexual abuse could not be confirmed or
verified. The reports are logical and based on objective analysis of the facts and
information that was available.
[89] Mr Willows’ report is also logical and convincing. It is well to remember that he
had been appointed by the KwaZulu-Natal Family Law Forum. The applicant avoided
participation in such investigations. The conclusion of Mr Willows is that there is no
reliable evidence of the respondent being an abusive or neglectful parent.
[90] The report of Mr Willows is detailed, well-reasoned and is based on objective
facts. He had conducted psychometric assessment of the respondent. According to
him, a psychometric assessment is a structured test used to measure a person’s
mental capabilities, personality traits and behavioural style. It is an independent
process. He had visited the home and observed ZGR with the respondent and the
grandmother. He had examined the police investigation records and other reports.
He had interviewed ZGR as well. The conclusion he arrived at is based on the
analysis of those interviews, contacts and observations.
[91] In K.O v M.S,28 it was held:
‘The primary purpose of an expert report is to assist and provide a court with an objective
opinion. The expert’s task is to assist the court with information based on scientific facts and
research that would have been unavailable, without the expert’s contribution. The expert
brings an understanding of the emotional dynamics and interpersonal interactions. The
28 Ibid.
30
expert may provide an understanding of the needs of the child and the influence of traumatic
events on the child’s behaviour. However, the opinion of the expert cannot replace the
court’s decision. The role of an expert has been described as “to assist the Court with the
utmost social responsibility and justice, while maintaining standards and ethics”. If an expert
is to be helpful, the expert must be neutral.’ (Footnote omitted)
[92] Having regard to all the reports, more particularly, the Family Advocate,
clinical psychologist, Mr Willows, and the nature of the evidence presented by the
applicant, together with the police investigation reports and all relevant information
that had been filed, I conclude that the allegation of sexual abuse of ZGR has not
been established. The criminal charges had also been withdrawn due to lack of
evidence. I find no evidence to support the allegations. Does this conclusion end the
enquiry; no.
[93] It was correctly submitted, on behalf of the applicant, that this Court is
required to determine the best interests of ZGR. What is in the best interests of a
child is a question of fact. In P v P,29 it stated that:
‘In accordance with s 28(2) of the Constitution, s 9 of the Children’s Act provides that in all
matters concerning the care, protection and well -being of a child, the standard that the
child’s best interest is of paramount importance must be applied. Section 7(1) details the
factors that must, where relevant, be taken into consideration in applying the standard of the
best interests of the child. This does not mean that the child’s best interest is the only
consideration or even that it necessarily trumps all others (cf S v M (Centre for Child Law As
Amicus Curiae ) [2007] ZACC 18 ; 2008 (3) SA 232 (CC) para 26). Parenthood is a
fundamental and life-affirming human experience. It can be cruel and hurtful, and an insult to
a parent’s dignity, to deprive him or her of a meaningful role in nurturing and developing and
a parent’s dignity, to deprive him or her of a meaningful role in nurturing and developing and
maintaining a bond with the child. The Act speaks not only of the responsibilities but also the
rights of a parent in relation to the child. In a case where the best interests of the child are
clear and are adverse to a parent’s interest in performing a parenting role, the former would,
I think, always have to prevail. In other cases, however, it may be far more difficult to discern
what course of action will best advance the child’s interests, and in such cases the parents’
respective interests may come to the fore.’
29 P v P [2019] ZAWCHC 174 para 59.
31
[94] I also agree with the statement of Mossop J in R.M.D v K.D,30 where it was
stated:
‘In an ideal world, it would be in the best interests of the minor child if she continued to form
part of an intact, united, loving family where her needs were catered for and where she felt
secure. In such circumstances she would be given the best opportunity to develop into a
well-balanced and responsible member of society who will be able, one day, to contribute to
her society.’
[95] In her report, Varaden had emphasised that this Court should consider, as a
priority, the safety of ZGR. I agree. She recommended supervised and monitoring of
contacts between ZGR and the respondent. I disagree. There is no evidence before
this Court that ZGR would be harmed by the respondent. The recommendations of
Varaden were all conclusions based on unproven allegations of serious abuse. This
Court has already found that there is no evidence in that regard.
[96] The Family Advocate had recommended for the respondent to exercise
supervised rights of contact to ZGR. That recommendation was subject to the report
of the clinical psychologist. The clinical psychologist had delivered her report. In the
report, the clinical psychologist had concluded as follows:
‘The current evaluation revealed no reason to recommend any restriction placed on the
contact between ZGR and his father. This recommendation is dependent on an assumption
that there is no reliable evidence of Mr R[...] being an abusive or neglectful parent.’
[97] The police investigations have not established the allegation. I therefore agree
with the recommendation of the clinical psychologist that there is no basis to restrict
or impose supervision on the contacts of the respondent with ZGR. Relying on the
Family Advocate report and the clinical psychologist, this Court must decline the
applicant’s request for suspension of contacts of the respondent. There would be no
basis for such a drastic order in the parenting of ZGR.
basis for such a drastic order in the parenting of ZGR.
[98] The court must not only consider the best interests of the child in isolation of
other relevant factors. Of course, the best interests of the child are paramount. In S v
30 R.M.D v K.D [2023] ZAKZNPHC 2 para 29.
32
M (Centre for Child Law As Amicus Curiae)31 it was stated:
‘The fact that the best interests of the child are paramount does not mean that they
are absolute. Like all rights in the Bill of Rights their operation has to take account of
their relationship to other rights, which might require that their ambit be limited.’
[99] The reports indicate that the respondent is a loving and caring parent. He had
close relations with ZGR. The relations had been strained by the limited contacts
imposed by the court order. There are no special circumstances which would warrant
for the limiting of contacts between ZGR and the respondent. I agree with what was
said in P v P32 that parenthood is a fundamental and life-affirming human
experience. It can be hurtful and an insult to a parent’s dignity to deprive him or her
of a meaningful role in nurturing and developing and maintaining a bond with the
child.
[100] In the view of this Court, there are considerable benefits for ZGR in having a
shared parenting arrangement. He will maintain a sound relationship with both
parents. That relationship had existed between the parties after the divorce until the
unsubstantiated allegations of abuse were raised against the respondent. All the
reports are not indicative of a child that has been abused.
Conclusions
[101] Having regard to all the circumstances discussed above and the various
reports filed, this Court holds the view that the applicant has failed to make out a
case for the suspension of the rights of contact and access of ZGR by the
respondent. The applicant has also failed to establish the allegations of sexual abuse
of ZGR by the respondent.
[102] The results are that the application should be dismissed.
[103] This Court has canvassed with the parties an appropriate order that would
accommodate the best interests of ZGR. I am indebted to counsel for their
31 S v M (Centre for Child Law As Amicus Curiae) 2008 (3) SA 232 (CC) para 26
32 P v P supra at para 59
33
submissions in this regard. I intend to grant an order which would be in accordance
with the best interests of ZGR.
Costs
[104] The general rule is that costs must follow the results. The respondent has
urged this Court to award costs on scale C of the tariff. On the contrary, the applicant
had asked for each party to pay its own costs. Applicant’s counsel had submitted
that the award of costs would only prolong the acrimonious relationship that already
exists between the parties. Whilst this submission is attractive, I am constrained to
disagree on the facts of this case.
[105] The conduct of the applicant has been unsatisfactory. This Court takes a dim
view on the applicant’s refusal to cooperate with the clinical psychologist. The
allegations against the respondent were disparaging and humiliating to him as a
parent. All this could have been avoided by an act of forensic investigation, which the
applicant had avoided.
[106] I am also not persuaded that this Court should grant costs on a punitive scale.
The costs shall be on the ordinary party and party scale, including costs of counsel
on scale A.
Order
[105] In the result, the following order is issued:
1. The interlocutory application for the referral of the main application to trial is
dismissed;
2. The main application is dismissed.
3. The applicant is directed to pay the costs of both the main and the
interlocutory applications on an ordinary party and party scale, including the
costs of counsel, according to scale A.
4. With effect from the first Friday immediately succeeding the date of this order
the respondent shall be entitled to have contact with the child, ZGR, a boy,
born on 12 February 2019, during school term times as follows:
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4.1 For a period of two months:
4.1.1 every alternate weekend from after school or aftercare on
Friday when the respondent shall collect the child from school
until Saturday at 17h00 when the respondent shall return the
child to the applicant at the Fields Hill Shell petrol station and
from 09h00 to 17h00 on Sunday with the respondent to collect
the child from and return him to the applicant at the Fields Hill
Shell petrol station;
4.1.2 every Thursday from after school or aftercare when the
respondent shall collect the child from school until Friday
morning when the respondent shall drop the child at school.
4.2 After the lapse of the aforesaid two-month period and for a further
period of two months, the respondent shall have contact with the child
as follows:
4.2.1 every Thursday from after school or aftercare when the
respondent shall collect the child from school until Friday
morning when the respondent shall drop the child at school;
4.2.2 every alternate weekend from Friday after school or aftercare
when the respondent shall collect the child from school until
Sunday at 17h00 when the respondent shall return the child to
the applicant at the Fields Hill Shell petrol station;
4.2.3 should the Friday preceding or the Monday succeeding the
weekend be a public holiday, the public holiday shall form part of
the weekend and in the event of the Monday being a public
holiday, the child shall spend Monday night with the respondent
who shall drop the child at school the following Tuesday
morning.
4.3 After the lapse of the second two-month period referred to in paragraph
5.4 above, the respondent shall have contact with the child as follows:
4.3.1 every Thursday from after school or aftercare when the
respondent shall collect the child from school until Friday
morning when he shall drop the child at school;
4.3.2 every alternate weekend from Friday after school or aftercare
when the respondent shall collect the child from school until
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Monday morning when the respondent shall drop the child at
school;
4.3.3 should the Friday preceding or the Monday succeeding the
weekend be a public holiday, the public holiday shall form part of
the weekend and in the event of the Monday being a public
holiday, the child shall spend Monday night with the respondent
and he shall drop the child at school the following Tuesday
morning.
4.4 During the December 2025/January 2026 school holidays:
4.4.1 the child shall spend alternating periods of seven consecutive
nights with the respondent and seven consecutive nights with
the applicant;
4.4.2 the seven-night periods shall commence at 09h00 on the first
day of each period with effect from 09h00 on the day after
school closes for the holidays;
4.4.3 all handovers shall take place at the Fields Hill Shell petrol
station.
4.5 With effect from the March/April 2026 school holiday, all school
holidays shall be divided into two equal halves and the child shall
spend one half of each school holiday with the applicant and the other
half with the respondent with the halves to alternate each year.
Handovers shall take place at the Fields Hill Shell petrol station.
4.6 The respondent shall have contact with the child on Fathers’ Day from
09h00 to 17h00 should that day fall during a weekend when the
respondent is not having contact with the child and the applicant shall
be entitled to have contact with the child on Mothers’ Day from 09h00
to 17h00 should that day fall during a weekend when the child is having
contact with the respondent. Handovers shall take place at the Fields
Hill Shell petrol station.
4.7 On the respondent’s birthday, should the birthday fall on a day when
the child is attending school, the respondent shall have contact with
him from after school until school commences the following day. Should
the birthday fall on a weekend when the respondent is not having
contact with the child, he shall be entitled to have contact with the child
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from 09h00 to 17h00. The applicant shall be entitled to have the same
contact with the child on her birthday should it fall on a day when the
respondent is having contact with the child. Handovers shall take place
at the Fields Hill Shell petrol station.
4.8 On the child’s birthday:
4.8.1 should the birthday fall during a weekend, the party with whom
the child is not spending the weekend shall be entitled to have
contact with him from 08h00 to 13h00 or from 13h00 to 18h00,
with handovers to take place at the Fields Hill Shell petrol
station;
4.8.2 should the birthday fall on a day when the child is attending
school, the party with whom the child is not staying shall be
entitled to have contact from after school, when he or she shall
collect the child from school, until 17h00 when he or she shall
return the child to the other party at the Fields Hill Shell petrol
station.
4.9 In respect of Christmas, the party with whom the child is not staying at
the time shall be entitled to have contact with the child from 12h00 on
24 December until 12h00 on 25 December. Handovers shall take place
at the Fields Hill Shell petrol station.
4.10 On Good Friday the party with whom the child is not staying at the time
shall be entitled to have contact with the child from 08h00 to 13h00 or
from 13h00 to 18h00. Handovers shall take place at the Fields Hill Shell
petrol station.
4.11 All public holidays, other than those dealt with above in paragraphs 4.2,
4.3, 4.9 and 4.10, shall alternate between the parties.
4.12 In the event of the child being ill, the respondent shall nevertheless be
entitled to exercise the contact provided for in paragraphs 4.5 to 4.11
above unless otherwise agreed to by the parties in writing. If the child is
not attending school due to illness on a day when the respondent is
due to collect the child from school, handovers shall take place at the
Fields Hill Shell petrol station.
4.13 The respondent shall be entitled to have telephonic and video contact
4.13 The respondent shall be entitled to have telephonic and video contact
with the child at 17h00 on the days when he does not have physical
37
contact with the child.
4.14 The respondent, after informing the applicant, is hereby authorised and
directed to arrange for the child to attend therapy with either Lauren
Snailham or Melinda Howlett (‘the psychologist’) and to provide a
mandate to the psychologist to render therapy for the child without the
need for the applicant’s consent thereto, provided that the applicant
had been informed and has unreasonably withheld her consent.
4.15 Each party is directed:
4.15.1 to ensure that the child attends all therapy sessions which are
scheduled for the child by the psychologist at times when the
child is in his or her care;
4.15.2 to attend any therapy session if required to do so by the
psychologist;
4.15.3 to pay 50 per cent of the costs of the child’s therapy sessions
with the psychologist in the event they are not covered by the
respondent’s medical aid scheme and to pay in full for the costs
of any individual therapy session which he or she may have
with the psychologist.
4.15.4 the obligation to pay 50 per cent of the fees for a psychologist
only applies when the psychologist had been agreed and
consented to by both the applicant and the respondent.
4.16 Paragraphs 4.1 to 4.15 above supersede and replace paragraph 4 of
the order on 4 August 2022 under case number D5777/2022,
paragraph 1 of the order granted on 2 July 2024 under case number
D5383/2024 and paragraph 6 of the order granted on 19 August 2024
under case number D6383/2024.
__________________
NOTYESI AJ
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APPEARANCES:
Counsel for the applicant : Adv S I Humphrey
Attorneys for the applicant : Shamla Pather Attorneys Inc
Suite 202, 2 Richefond Circle
Ridgeside Office Part
Umhlanga Rocks
Counsel for the respondent : Adv E S Law
Attorneys for the respondent : Law Offices of Karen Olivier
58 St Andrews Drive
Durban North
4501
Date Heard : 20 August 2025
Date Delivered : 28 October 2025