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
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Not Reportable
Case No: 2025-103053
In the matter between:
W[...] G[...] J[...] Applicant
And
B[...] J[...] (nee C[...]) Respondent
Coram: DA SILVA SALIE, J
Heard and ex tempore Reasons delivered on: 15 December 2025
Written Reasons delivered on : 17 December 2025
SUMMARY:
Urgent application – Minor child – Contact – Upper guardian – Prior court order
appointing curator ad litem and directing therapeutic reunification – Non-compliance by
primary caregiver – Child’s expressed wishes considered contextually and not
mechanically – Structured, incremental contact ordered to prevent parental alienation –
Therapeutic in tervention to continue – Curator empowered to direct further contact –
Respondent’s conduct necessitating urgent intervention – Applicant substantially
successful – Costs awarded against respondent on Scale C.
ORDER
1. In the result, I made the order attached hereto and marked as “X”.
WRITTEN REASONS
DA SILVA SALIE J:
Introduction:
[1] This matter concerns a minor child, “AJ”, aged nine. The matter was argued
before me on the urgent roll of Monday, 15 December 2025. The relief sought stemmed
from a previous order of this Court, dated 21 July 2025 which appointed the curator ad
litem for the minor, directed a therapeutic reunification process between the applicant
and AJ as well as provis ion for contact. After the submissions by both counsel as well
as the previously appointed curator ad litem, I made the order granting the applicant
contact to the minor with a specific timetable, continued therapeutic intervention,
granting the curator p owers to direct additional contact and other ancillary relief as well
as a costs order against the respondent. The judgment was handed down ex tempore
setting out my reasons. A formal request for reasons was however submitted to the
Registrar of this Court today, which reasons follow below:
[2] The parties , the biological parents of AJ, are presently litigants in an acrimonious
action for divorce. It is evident from the papers that there is a steady deterioration of
trust and cooperation between the par ties, and compliance by the respondent to the
previous order of this Court in July 2025. The parties separated homes earlier this year,
in April 2025. Until then the minor lived with both parents. The papers illustrate that
with the passage of time, since the parties’ separation and so too, after the Order of this
Court in July 2025, there has not been compliance with the Court directives which
provided for a structured therapeutic process and the applicant’s contact with the child.
[3] Essentially, the applicant approache d this Court on the basis that he has been
denied contact to the minor by the respondent and non -compliance of the mandated
sessions with psychologist, Mr. Altman. The applicant contends that the respondent is
alienating him from AJ a nd that her conduct is aimed at undermining the terms of the
alienating him from AJ a nd that her conduct is aimed at undermining the terms of the
order which were directed to ensure that the minor and his father establish a continued
relationship. The application is brought on the urgent roll as he submits the harm to his
son in building a relationship with him is ongoing and will continue unless this Court
orders urgent relief. The respondent on the other hand denies that the matter is urgent
and furthermore denies that she is in contempt of the order as it is the child’s wishes to
not meet with Mr. Altman and that he does not want to see his father. On that basis, she
submits the voice of the child must be heard and respected as forced contact with his
father is against his express wishes and harmful to AJ.
Urgency
[4] Matters affecting a minor child’s care and contact is considered urgent. In this
matter, the Court had previously ordered contact and other processes for the
therapeutic assistance of the minor. The absence of contact between the minor and his
father and the stalled therapeutic process enforces emotional distance between the
applicant and the minor and it would be detrimental to the minor. Judicial intervention by
this Court as the upper guardian of all minor children are thus warranted in addition to
maintaining oversight of its previous order relating to the minor child. On the facts of
this matter I am satisfied that this Court has appropriately been approached for urgent
relief.
The July 2025 Order and Therapeutic Pathway
[5] The July 2025 order established a comprehensive and child -centred reunification
framework, including:
[5.1] the appointment of the curator ad litem;
[5.2] therapeutic assessment by psychologist, Mr Bernard Altman;
[6.3] cooperation obligations on both parties;
[5.4] Family Advocate involvement; and
[5.5] a consultation between legal representatives following receipt of
professional reports.
[6] This staged process was intended to address AJ’s distress and reluctance
around contact, while rebuilding the relationship between father and child in a measured
and supported manner. It remains the operative legal framework.
[7] The affidavits reveal deeply conflicting narratives. The applicant alleges
obstruction and non -compliance, whilst the respondent rai ses concerns relating to the
child’s anxiety and his apprehension regarding contact with his father.
Best Interests of the Child
[8] Section 28 of the Constitution and the Children’s Act require that AJ’s best
interests remain paramount. What emerges from the papers is that a blanket denial of
contact or permitting a continued de facto position of no contact do not serve those
interests. The respondent’s resistance to applicant’s contact is not justified on the
present papers.
[9] The evidence reflects that AJ has previously engaged positively with the
applicant. Prolonged suspension of contact risks deepening alienation, which may
ultimately be more harmful than carefully managed engagement.
[10] The Court therefore adopts a balanced approach: structured, time -limited contact
at reasonable intervals, whil st the therapeutic and curator -led processes continue in
parallel.
[11] Submissions were made by both counsel for the applicant and respondent as
well as the curator ad litem, Adv. Janssen. The curator filed a report placed before the
Court.
[12] It is evident that the respondent had not complied with the provisions of t he July
order and that she could not, as she elected to do, unilaterally change the terms of the
Order. In circumstances where she did not consider the Court’s previous order to be
serving the minor’s best interests based on her apprehensions or alleged w ishes of the
minor, she ought to have applied to Court for a variation of the order supported by her
submissions under oath. It is apparent that the conduct of the respondent illustrates a
consistent pattern of invoking fear in the minor of his father as well as feelings of distrust
orchestrated to amount to an apparent but not real “refusal” by the minor to spend time
with his father.
[13] The minor is very clearly divided in his loyalties towards his mother and father
and caught up in mudslinging in t his unhealthy toxic web. The voice of the child does
not amount to hearing it only in the mechanical and literal sense. The manifestation of
the child’s voice and needs must be considered in the full sphere of the facts and
circumstances of this case. T o simply comply with what a child states on these facts,
would amount to doing him a disservice and failing in ensuring that his best interests are
considered and protected by this Court as the upper guardian of all minor children.
[14] I am satisfied that AJ needs the reinforcement and command by this Court to
ensure that he has contact with his father and the benefit of therapeutic intervention by
the psychologist who h ad already established contact and a relationship with him.
Significantly, the minor would only meet and engage persons who are “vetted” by his
mother, being Dr. Badenhorst, Oom Andre (her attorney of record) and Oom Deon (a
fellow church member). Given t his willingness, it does not make sense why the minor
would not be willing to engage with the Adv. Janssen (the curator), Mr. Altman and his
own father. The curator indicated that whilst the minor verbalised that he would not
want to see his father, he co uld not set out any reasons for that, and his conduct and
other non-verbal cues indicated to the contrary that indeed he longed for his father and
contact to him.
[15] The respondent’s opposition, coupled with her conduct in frustrating the
implementation of the existing court -ordered contact framework and therapeutic
measures, rendered urgent judicial intervention unavoidable. I am satisfied that t he
applicant has been substantially successful in securing access and continued
therapeutic intervention, and the respondent’s conduct necessitated urgent recourse. A
costs order on Scale C is warranted.
Order
[16] In the result, I made the order attached hereto and marked as “X”.
__________________________
G. DA SILVA SALIE
JUDGE OF THE HIGH COURT
WESTERN CAPE
Appearances
For Applicant: Adv. J McCurdie SC
Instructed by: Michael Baynham Attorneys
For Respondent: Mr Andre Marais
c/o Guthrie & Theron Attorneys
Curator Ad Litem: Adv. J Janssen