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]
Case no.: 3358/2024
In the matter between:
D[...] R[...] Applicant / Respondent
and
N[...] M[...] First Respondent / Second Applicant
R[...] L[...] Second Respondent / First
Applicant
________________________________________________________________
Coram: Francis J
Heard: 2 December 2025
Delivered: 11 February 2026
REASONS
FRANCIS J
Introduction
[1] This matter concerns two minor children, W[...] M[...]-L[...], born on 9
October 2018, and L[...] M[...], born on 12 April 2022. The Applicant seeks an
order granting him defined interim contact with both children pending the
finalisation of an action in which broader relief relating to care and contact is
sought. The Respondents, who are the children’s parents and holders of parental
responsibilities and rights, oppose the extent of the contact claimed.
[2] Also before the Court was a counter -application by the Respondents
seeking, first, an interdict restraining the Applicant from publishing images or
personal information relating to the children on social media and other public
platforms, and second, an order compelling the Applicant to cooperate with a
psychological assessment being conducted by an expert appointed by the
Respondents. The Applicant sought a postponement of the counter-application.
[3] The matter was enrolled as urgent. An order was granted on 2 December
2025, with reasons reserved. These are the reasons.
Factual background
[4] The First Respondent is the biological father of both children. The Second
Respondent is the former spouse of the First Respondent. W[...] was born
pursuant to a surrogacy agreement concluded during the Respondents’ marriage,
in terms of which they are co -holders of parental responsibilities and rights.
L[...] was born pursuant to a separate surrogacy agreement concluded during the
relationship between the Applicant and the First Respondent. In terms of that
agreement, parental responsibilities and rights in respect of L[...] vest solely in
the First Respondent. The Applicant was not a party to that agreement.
[5] For a period following L[...]’s birth, the Applicant resided with the
children and played a significant role in their daily lives. Following the
termination of the relationship between the Applicant and the First Respondent,
interim contact arrangements were implemented. The present ap plication seeks
to regulate interim contact pending the determination of the action proceedings.
The legal framework
[6] Parental responsibilities and rights are governed by sections 18 to 22 of the
Children’s Act 38 of 2005. Those rights vest primarily in parents as defined in
the Act. They include the responsibilities and rights of care, contact,
guardianship and maintenance.
[7] The Respondents are the children’s legal parents and constitute the
primary family unit recognised by law. The Appl icant does not qualify as a
parent in terms of sections 19, 20 or 21 of the Act and is not an automatic holder
of parental responsibilities and rights. His standing arises solely from section 23
of the Act, which permits a person having a sufficient intere st in the care, well -
being or development of a child to apply for an order granting contact.
[8] It follows that any order regulating contact must be carefully
circumscribed. Contact facilitates the maintenance of a relationship; it does not
confer decision-making authority or dilute the parental authority of those who
hold parental responsibilities and rights. The distinction between contact, on the
one hand, and care or guardianship, on the other, must remain clear to avoid
confusion and conflict.
The application for postponement
[9] The Applicant sought a postponement of the counter -application on the
basis that he had insufficient time to prepare a response. He tendered an interim
undertaking not to engage in the conduct complained of pending a later hearing.
[10] A postponement is an indulgence, not a right. An applicant must
demonstrate good cause, including a reasonable explanation, the absence of
dilatory intent, and that the interests of justice favour the postponement
(Myburgh Transport v Botha t/a SA Truck Bodies 1991 (3) SA 310 (Nm)).
[11] The Applicant’s explanation was unpersuasive. He had adequate time to
respond to the discrete issues raised in the counter -application and failed to
demonstrate a prima facie defence to the substantive relief sought. In matters
affecting children, delay is often inimical to their best interests. The application
for postponement was accordingly refused, with costs on scale C, including the
costs of two counsel where so employed.
The counter-application
The social-media interdict
[12] The first component of the counter -application concerns an interdict
restraining the Applicant from publishing images or personal information
relating to the minor children on social media platforms or public blogs. The
enquiry is grounded in the children’ s rights to privacy and dignity, and the
paramountcy of their best interests under section 28(2) of the Constitution.
[13] Those rights are given legislative effect in both the Children’s Act and
the Protection of Personal Information Act 4 of 2013 (“POPI A”). Section 34 of
POPIA prohibits the processing of a child’s personal information unless it is
carried out with the consent of a “competent person”, being a holder of parental
responsibilities and rights. It was common cause that the Respondents did not
consent to the publication of the children’s images or personal information.
[14] Section 32(4) of the Children’s Act further provides that a person who
does not hold parental responsibilities and rights may not hold himself out as
the parent or primary c aregiver of a child in a manner that may mislead the
child or any other person. The Applicant’s public portrayal of the children as his
own, together with the dissemination of their images and personal narratives,
contravenes this statutory prohibition. Su ch conduct intrudes upon the
children’s rights to privacy and dignity, risks confusion regarding their familial
identity, and undermines the Respondents’ lawful exercise of parental authority.
In circumstances of ongoing litigation marked by conflict, the continued
publication of such material is inimical to the children’s best interests. An
interdict is both necessary and appropriate to prevent further harm (see, Centre
for Child Law v Media 24 Ltd 2020 (4) SA 319 (CC)).
Compulsion to cooperate with the expert assessment
[15] The second component of the counter -application concerns an order
compelling the Applicant to cooperate with a psychological assessment being
conducted by Mr Altman. In matters involving minor children, this Court
exercises an inherent and non -delegable jurisdiction as upper guardian. It is
settled law that the Court is not bound by the forensic choices or procedural
preferences of the parties, but bears an independent duty to place itself in a
position to determine what arrangement best serves the interests of the child
(Van der Linde v Van der Linde 1996 (3) SA 509 (O)).
[16] That duty carries with it the power to regulate the Court’s own process
and to direct the taking of steps reasonably required to obtain reliable and
relevant information bearing on a child’s welfare. This includes directing
cooperation with expert assessments where such assessments are necessary to
inform the Court’s decision (Ex parte Oppel and Another 2002 (5) SA 125 (C)).
[17] On the facts of the present matter, the Applicant initially participated in
the assessment process bu t thereafter refused to continue, citing alleged
unprofessionalism and partiality on the part of the expert. A litigant is not
entitled unilaterally to frustrate an expert process aimed at assisting the Court in
the discharge of its constitutional and stat utory obligations. Allegations
concerning an expert’s impartiality, methodology or conclusions are matters to
be addressed through the proper forensic testing of the evidence, including
cross-examination, and do not justify a refusal to participate in the assessment
itself (see, Michael v Linksfield Park Clinic (Pty) Ltd 2001 (3) SA 1188 (SCA)).
[18] To permit a party to withdraw from an assessment on the basis of
unproven allegations would undermine the Court’s upper -guardian function and
impair its ability to make an informed determination of the children’s best
interests. The order compelling the Applicant’s cooperation was therefore
justified.
[19] The counter-application accordingly succeeded.
The Family Advocate’s report
[20] A report was obtained from the Office of the Family Advocate. While the
factual observations contained therein regarding the children’s attachments are
of assistance, the report at times employs terminology suggestive of care or
shared parental rights, concepts that do not arise for determination in this
application.
[21] A court is not bound by expert recommendations and must critically
evaluate such evidence within the correct leg al framework. To the extent that
the report strays beyond its mandate or misstates the Applicant’s legal status,
those aspects cannot be accepted uncritically.
[22] There was partial agreement between the parties, primarily premised on
an acceptance of certain of the Family Advocate’s recommendations regarding
interim contact. The existence of such agreement is a relevant and pragmatic
factor, as it indicates areas of reduced conflict. However, the agreement between
parties concerning children does not bind the Court. As the upper guardian of all
minors, it has duty to satisfy itself that any arrangement serves the paramount
best interests of the child (McCall v McCall 1994 (3) SA 201 (C))). Indeed, the
child’s best interests is not just a guiding principle; it is a justiciable right that
imposes a positive obligation on the courts. Therefore, while the Court gives
due weight to the parties’ agreement as a constructive step, it remains the
Court’s obligation to scrutinise the proposed terms against the full matrix of
evidence and the statutory factors in section 7 of the Act.
Best interests of the children
[23] The children’s best interests are paramount (section 28(2) of the
Constitution and section 9 of the Children’s Act). In applying this standard, I
have had regard to the factors listed in section 7 of the Act.
[24] The evidence, including that of the Family Counsellor, establishes that
both children share a close, loving bond with the Applicant, forged during a
period of cohabitation. L[...], in particular, demonstrates a strong attachment. It
is incontrovertible that sever ing this relationship would be detrimental. W[...]
also enjoys a positive relationship with the Applicant, though she exhibits a
primary emotional orientation towards the Respondents.
[25] W[...] and L[...] are not only siblings; they are children within a legally
constituted family headed by the Respondents. By all accounts they are very
close. The sibling bond is a vital source of mutual support and emotional
continuity, especially amidst family transition.
[26] The expert evidence is divided on whether the children’s contact
schedules must be identical. Some argue for alignment to protect the sibling
bond. The Family Counsellor, however, presented a nuanced view, suggesting
that in this specific context, the children’s individual emotional needs might
sometimes necessitate separate scheduling. While this insight has merit, the
principle of preserving the sibling bond and the coherence of the primary family
life must be given pre-eminent weight. A contact regime that routinely separates
the children durin g their leisure time risks weakening this essential bond and
creating parallel family experiences that could confuse the children and
undermine the Respondents’ family unit. The children’s need for a stable,
unified family environment outweighs the margina l benefit of maximising
individual time with the Applicant if it fractures their shared life.
[27] The high level of acrimony between the adults poses a significant risk to
the children. The contact order must therefore be clear, structured and calculated
to minimise conflict.
Determination
[28] The Applicant is entitled to meaningful contact in terms of section 23 of
the Children’s Act. However, such contact must be structured in a manner that
preserves the Respondents’ parental authority, prioritises the sibling bond, and
reduces the potential for future conflict.
[29] The order made on 2 December 2025 reflects these considerations and is
reproduced below.
[30] During the course of the hearing, the parties signalled their agreement on
certain other ancillary matters. I had no difficulty with the consensual views
expressed on these issues and they were incorporated in the order.
ORDER
1. The Applicant’s application for a postponement of the relief sought in
paragraphs 3,4 and 6 of the Respondents’ Notice of Counter -Application
is refused with costs on scale C.
2. In respect of the Applicant’s application and the Respondents’ counter -
application, the Respondents’ counter -application succeeds and an order
is made in the terms set out below.
3. The Applicant, in terms of section 23(1)(a) of the Children’s Act 38 of
2005, (‘the Children’s Act’) shall have contact with the children, W[...]
M[...]-L[...] and L[...] M[...], during the December 2025/ January 2026
school holiday as follows:
a. L[...] shall spend from Thursday 4 to Sunday 7 December with the
Applicant;
b. W[...] and L[...] shall spend from Sunday 14 to Saturday 27
December 2025 with the Applicant.
4. Pending finalisation of the action instituted by the Applicant (as Plaintiff)
under case number 2025-151339 (or the outcome of any other application
that any of the parties may bring):
c. The First Respondent, as the sole parent of L[...], shall facilitate the
Applicant having interim contact with L[...] in terms of section
23(1)(a) of the Children’s Act. Such interim contact shall take place
as follows:
i. During the school term:
1. On every Wednesday from after school until the
Thursday morning when he is returned to school.
2. On one weekend per month from after school on the
Friday until the Monday morning when he is returned to
school. This weekend contact shall take place on the
same weekend that W[...] spends with the Applicant.
ii. For one-third of scho ol holidays per annum, calculated from
the commencement of the March holiday in one year to the
end of the January holiday the following year. Such holiday
contact shall coincide with the holiday contact the Applicant
has with W[...].
d. The First and Secon d Respondents, as the parents of W[...], shall
facilitate the Applicant having interim contact with W[...] in terms of
section 23(1)(a) of the Children’s Act. Such interim contact shall take
place as follows:
i. During the school term:
1. On every Wednesday fr om after school until the
Thursday morning when she is returned to school;
2. On one weekend per month, from a Friday after school
until the Monday morning when she is returned to
school. This weekend contact shall take place on the
same weekend that L[...] spends with the Applicant.
ii. For one-third of school holidays per annum, calculated from
the commencement of the March holiday in one year to the
end of the January holiday the following year. Such holiday
contact shall coincide with the holiday contact th e Applicant
has with L[...].
e. The First and Second Respondents, as the parents of W[...] and the
First Respondent as the parent of L[...], will finalise the weekend
contact arrangements in the last week of each month, for the
following month, to provide certainty in respect thereof.
f. The Applicant shall be permitted to attend all functions, meeting,
concerts, sports days, matches and other events that are hosted by the
children’s schools or extra-mural clubs.
g. The Applicant shall be entitled to communicate directly with L[...]’s
educators, coaches and doctors, provided that the Applicant is
precluded from making any decisions or exercising any parental rights
in respect of L[...], arising from such communications.
h. Mr Anton Neethling shall be appointed as a Contact Coordinator
(‘CC’) to the parties, in order to facilitate the contact arrangements as
set out in this order. The parties shall cooperate with the CC. The
parties shall share the costs of the CC on an equal basis, unless
otherwise determined by the CC. Each party shall be responsible for
the costs incurred in respect of documentation that they send to the
CC. The decision of the CC shall be final, pending any decision of
this Court in this regard, arising from an application initiated by an y
of the parties.
i. The children shall be with either the First or the Second Respondents
on Rosh Hashanah, Passover and any other Jewish holidays on which
Herzlia School closes.
j. Any contact that the Applicant wishes to have with the children on
special occasions, shall take place in the discretion of the children’s
parent, in the case of L[...], being the First Respondent and in the
case of W[...], the First and Second Respondents.
k. In the event that the Applicant does not have contact with either
child, for whatever reason, during the stipulated periods during term-
time, as provided for herein, he shall not be entitled to ‘make -up’
such time.
l. The Applicant’s contact with either chil d, as provided for herein is
subject to his being physically present during such contact periods.
m. The Applicant shall not be entitled to post any photographs of either
of the children on any social media platform or in a profile
photograph on his mobile phone, nor shall he cause any photographs
of either of the children to be posted on any social media platform.
n. The Applicant shall not be entitled to name or refer to the children
on any social media platforms/ blogs or cause them to be named or
referred to on any social media platforms/ blogs.
o. The interdict in force in respect of First Respondent shall remain of
force and effect.
p. The Applicant shall notify the First Respondent if either child is not
well when he has contact with them in order for him, and the Second
Respondent in respect of W[...], to make a decision regarding
whether such child should remain with the Applicant or return to his
care.
q. The Applicant is directed to cooperate with the ongoing assessment
by Mr Bernard Altman, clinical psych ologist appointed by the
Respondents, including the Applicant attending on such
consultations as Mr Altman may require, making his children, M[…]
and M […] available for such consultations as Mr Altman may
require, and by not causing any collateral wi th whom Mr Altman
may wish to consult to refuse to cooperate with Mr Altman.
5. All questions of the costs of the application and the counter -application,
including the question of the costs of two counsel, shall stand over for
later determination.
_____________________
FRANCIS, J
Judge of the High Court, Cape Town