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IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, JOHANNESBURG)
Case Number: 220773/2025
(1) REPORTABLE: NO
(2) OF INTREST TO OTHER JUDGES: NO
(3) REVISED: NO
B[…] N[…] APPLICANT
AND
K[…] N [...] RESPONDENT
JUDGMENT
___________________________________________________________________
This Judgment was handed down electronically and by circulation to
the parties’ legal representative by way of email and shall be
uploaded on CaseLines. The date of the hand down is deemed to be
on the 04 FEBRUARY 2026.
MAKUME J:
INTRODUCTION
1. In this matter, the Applicant seeks an order on an urgent basis
that the R espondent be directed to return the minor child of
the parties’ marriage S N […] to the parties’ matrimonial home.
BACKGROUND FACTS
2. The Applicant is employed as a Software Engineer at
MultiChoice and lives at 2 [… ] P[… ] Road, T[ … ] G[… ],
Johannesburg, which is the matrimonial home.
3. The Respondent is a self -employed beautician and currently
lives at 1 [… ] S[… ] Street, S [… ], Johannesburg.
4. The parties married each other in community of property at
Midrand on 27 August 2016. The minor child Sann was born
out of the marriage relationship on 27 November 2020.
5. The marriage relationship has broken down and as a result on
14 July 2025, the respondent’s attorney, Ms Shirish Kalian
addressed a letter to the Applicant’s attorney in which they
indicated that their client, the Respondent has instructed them
to proceed and file for a divorce. In the letter, the Applicant's
attorneys were invited to engage in settlement discussions to,
amongst others, deal with parental rights and responsibilities
in respect of the minor child.
6. What follows thereafter was a series of correspondence
exchanged between the attorneys which did not achieve any
meaningful agreement, safe for an agreement on the
appointment of an expert who will do a comprehensive forensic
investigation and recommendation regarding the best of the
minor child.
7. On 10 November 2025, the R espondent was granted an interim
protection order against the applicant, in terms of section 5(2)
of the Domestic Violence Act 116 of 1998. In the order the
applicant was prohibited from entering 1 [… ] S[… ] Street, S [… ],
Johannesburg. The Applicant was also allowed to contact with
the minor child, pending the outcome of the proceedings on
the return date been 2 December 2025.
8. In the interim protection order the R espondent was granted the
right to remove from the matrimonial home certain movable
items. On 11 November 2025, the Respondent’s attorneys
sent a letter to the Applicant’s attorneys in which they
informed them that the Respondent intends vacating the
matrimonial home with the minor child.
9. On the morning of 12 November 2025, the Respondent arrived
at the matrimonial home, accompanied by the police and had
the Applicant served with the interim protection order. The
Respondent thereafter left the common home with the minor
child and took with her some movable assets.
10. The Respondent has since 12 November 2025 been living at
1[… ] S[… ] Street, S [… ] with the minor child and has been
joined by her parents who are both retired.
11. On 17 November 2025, the Applicant's attorneys served by
email an unissued urgent application seeking the return of the
minor child. The matter became opposed when the respondent
filed her answering affidavit, whereafter the Applicant filed his
reply.
12. This matter served before me on 20 November 2025,
whereafter I granted an order and reserved reasons for the
order. What follows hereunder are the reasons for my
judgment and order.
ISSUES TO BE DECIDED
13. The following issues are in dispute and call for a decision and
ruling from this Court they are:
13.1 Is the application urgent?
13.2 Has the applicant provided sufficient evidence in his
founding affidavit, justifying the return of the minor
child to him at this stage.
13.3 What are the best interest of the minor child?
13.4 What form of contact and access is suitable in the
interim pending an expert report?
URGENCY
14. On a strict application of Rule 6(12) and taking into
consideration that the Applicant was told as far as July 2025
that the R espondent intends vacating the matrimonial home
with the minor child. I should have struck the matter from the
urgent roll. However, it is common cause that issues involving
the best interest of a minor child always remain urgent. It is
on that basis that I exercised my discretion to allow the parties
to deal with the merits of the application.
HAS THE APPLICANT PROVIDED SUFFICIENT EVIDENCE IN HIS
FOUNDING AFFIDAVIT TO JUSTIFY THE RETURN OF THE
MINOR CHILD TO THE MATRIMONIAL HOME
15. It is common cause that the parties have been living together
since their marriage and the minor child was born during their
stay together as a family. The marriage relationship has
broken down, though none of them has commenced divorce
proceedings at the time when the application was launched,
otherwise this would have been an application for interim
custody in terms of Rule 43 of the Uniform Rules of Court.
Accordingly, what is key in this matter is not at this stage who
is the best suited parent, rather, it is what is in the best
interest of the minor child.
16. Section 7 of the Children’s Act 38 of 2005 sets out in broad
outline the factors to be taken into consideration when
determining what is in the best interest of the minor child. It
includes, amongst others the following:
(a) The nature of the personal relationship between the
child and the parents, or any specific parent.
(b) The nature of the personal relationship between the
child and any other caregiver.
(c) The likely effect on the child of any change in the
child’s circumstances, including the likely effect on
the child of any separation from both or either of the
parents.
(d) The child’s age, maturity, stage of development,
gender and background.
17. The above list is not exhaustive, but gives a general
guideline as to what should a Court take into consideration
when dealing with the concept best interest of a child.
18. In paragraph 7 of the founding affidavit, the applicant says
that if the minor child is not returned to him, then the child
will, or is at risk of suffering irreparable emotion and/or
psychological harm, as more fully set ou t hereunder. I have
read through the lengthy founding affidavit and I have not been
able to find any evidence supporting the applicant’s fear.
19. There is evidence that the R espondent is leasing a three-
bedroom house which she shares with the minor child and her
now retired parents. There is no evidence to suggest that the
Respondent and her parents are not able to look after the best
interest of the child.
20. The Applicant is employed at MultiChoice and does not
always work from home. On the other hand, the R espondent
has always conducted her business as a beautician from the
common home. This means that she is always at home with
the child before and after school.
21. The Applicant on the other hand places reliance on domestic
servants to look after the minor child. This is not the case
with the R espondent. The Applicant at paragraph 17 alludes
that:
“I employed a night nanny who works from
4PM until 9AM. Her role is complete care of
the minor child. During this time, both the
nanny and domestic helper are still in my
employ and refuse to move with the
Respondent.”
22. What is strange is that the Applicant does not say what could
be the reason for the domestic servants refusing to move to
the place with the R espondent. The answer is not far, it is
because he is the one who pays their salary, they owe
allegiance to him. He does as he likes, even making them
work right through the night, over 16 hours a day. It would also
seem that both helpers are foreign immigrants who always live
under the threat of been deported.
23. The Applicant has failed to demonstrate that the R espondent
is not a suitable parent to look after the minor child. In his
own words at paragraph 18 he says that they both work and
take turns to take the minor child to school and collect him
after school and they both spend time with him during the
afternoon.
24. The Respondent in dealing with the relationship between the
Applicant and the minor child says that prior to that notifying
the Applicant about her intention to divorce, the Applicant had
little to no regard for the minor child and left everything to the
helpers.
25. The Applicant has failed to provide a realistic insight into the
daily routine and needs of the minor child. This, in my view,
demonstrates that it is the nanny and the domestic worker who
carry out parent al responsibilities over the minor child. It is
therefore, not surprising that the two domestic workers have
signed affidavits in which they make damming statements
about the R espondent. For instance, Ms Clara Mwanosiko in
her evidence attached to the Applicant’s replying affidavit tells
how the R espondent used to sneak out of the house at night
and returned in the morning. This version which should have
been known to the Applicant was never set out in the founding
affidavit. It is new matter which cannot be allowed in reply
without reasons. It is clear that the nanny is biased against
the Respondent.
26. The helper, Ms Biyona Nkomazana is equally biased in her
affidavit, which is also a supporting affidavit to the Applicant’s
replying affidavit. She says that the Respondent has used
abusive language calling the Applicant (pee brain). This
information appears nowhere in the Applicant’s founding
affidavit. I find it difficult to believe that the Applicant would
have chosen not to mention such statements. The domestic
workers have clearly been schooled what to say. I do not
believe what they say.
27. The applicant has made a bold statement to the effect that
the minor child will suffer emotional and psychological harm if
not returned to him. He has failed to set out what would cause
this harm and why it will amount to psychological and
emotional harm.
WHAT ARE THE BEST INTERESTS OF THE MINOR CHILD
28. The Applicant on his own version is not totally involved in the
minor child’s daily routine and relies on domestic servants.
29. The minor child is only five years old and has clearly bonded
with the mother. One of the teachers confirmed in a letter that
since July 2025, the minor child has displayed signs of
separation anxiety during the morning school drop -off as the
minor child battle to separate from the Respondent.
30. The Respondent’s parents live with her and the minor child,
thus building a close relationship with extended family
members. This is in compliance with section 7(1)(f)(i) of the
Children’s Act which reads as follows:
“The need for the child to remain in the care
of his or her parent family and extended
family, and
(ii) to maintain a connection with his or
her extended family, culture and
tradition.”
31. De Vos AJ in the matter of DM v CHP , case number
B6773/2023, Gauteng Division of the High Court Pretoria held
on 4 January 2024, at paragraph 22 to 23 thereof writes as
follows:
“22. Our courts have expressed itself on
the need for stability in children’s lives. Our
case law has recognised the importance of
consistency in children's lives, particularly
those as young as the parties’ daughter.
Children’s existing environment should not
readily be disturbed and any unnecessary
move should be discouraged and avoided on
the ground of security and stability. A stable
routine is universally determined to be in the
interest of children, especially those of a
young age.
23. Of course, the status quo is not
allowed around and a court can interfere on
an urgent basis to change the status quo on
proper grounds. The court does not assume
automatically that the return to the status
quo sought by the Applicant is appropriate,
purely because it was a status quo . Each
case falls to be decided on its own particular
facts.”
32. In the matter of MK v MC (15986/2016) (2018) ZAGPJHC 9
(29 January 2018) at paragraph 37, the court said the
following:
“It would likewise be incorrect to
categorically hold that because it is
generally in the best interest of a child to
form a physical bond with and experience
the love affection and care of both parents,
that a parent that intends to relocate with
the children to a different town or country is
precluded from relocating.”
33. I am satisfied that the Respondent has taken the right
decision to vacate the matrimonial home and remove the minor
child from an environment where there was no longer love,
instead, abuse and insults. The Respondent had to obtain a
protection order, in order to protect the best interest of the
minor child.
34. The Applicant has failed to make out a case for the return of
the minor child. It is also commendable to note that in the
Respondent’s draft order, the Applicant is afforded reasonable
contact and access rights to the minor child, which this Court
hopes the Applicant will exercise, well understanding that an
expert report is still being awaited, which will finally make
recommendations about the permanent primary care of the
child.
35. In the result, the order that I granted on 25 November 2025 is
attached hereto marked Annexure A.
__________________________
MAKUME J
JUDGE OF THE HIGH COURT
JOHANNESBURG
For the Applicant: Adv Olwagen Meyer
Instructed by: Joseph Sizzler Attorneys
For the Respondent: Adv Andrew
Instructed by: Shirish Kalian Attorneys.