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
(EASTERN CAPE DIVISION, MAKHANDA)
CASE NO. 2025-181191
Not Reportable
In the matter between:
C[...] L[...] S[...] FIRST APPLICANT
V[...] R[...] S[...] SECOND APPLICANT
R[...] J[...] S[...] THIRD APPLICANT
and
A[...] K[...] S[...] RESPONDENT
JUDGMENT
Rugunanan J
[1] The applicants approached this court on urgency. In their notice of
motion to which is attached as ‘Annexure A’, an ‘Implementation Plan for
Reunification and Contact’, they seek an order sanctioning contact in a
structured and graduated reunification process principally between the first
applicant (the applicant) and two minor children, A[...] and E[...] (the children),
respectively 10 and 11 years of age. The second and third applicants who are
the maternal grandparen ts of the children are resident in Zimbabwe and are to
be included in that process. On the whole, the process is to be supported by a
facilitator and a multidisciplinary team of experts.
[2] The respondent opposes the application. He disputes its urgency and the
applicant’s entitlement to relief on the merits. In addition, his opposition rests
on a preliminary objection that the matter is lis alibi pendens. In that regard he
contends for its d ismissal since the dispute between the parties is pending
determination in Case number 17118/2022 in the Western Cape Division of the
High Court (the Cape proceedings). Prior to delivery of the respondent’s
answering papers the limitations in the present a pplication were
distinctly communicated by his attorney to the applicant’s attorney in a letter
dated 15 October 2025. 1 It is no misnomer to state at the outset that the
respondent’s stance on the preliminary issues is not without merit and
forecloses inquiry into a determination of the merits.
1 Answering affidavit, Annexure AS1.
[3] The respondent’s answering affidavit was not delivered in accordance
with the timeline set by the applicant in her notice of motion. This issue is
addressed at the conclusion of this judgment.
[4] The court papers compr ise of the founding affidavit, the answering
affidavit, and a replying affidavit. Also included are confirmatory affidavits,
various items of correspondence exchanged between the parties’ legal
representatives, lengthy expert reports and joint minutes. The total volume of
material amounts to an estimated 500 pages. The parties’ failure to have
prepared an index compliant with the express provisions of rule 3(g) of the joint
rules of practice in this division mired efforts to navigate through the material
with ease of expedience. Any annexure which may have been incorrectly
referenced in this judgment, or failure to identify a specific annexure, is
attributed entirely to this circumstance. The claimed urgency did not justify
non-compliance with the elementary prescripts of the rule.
History
[5] The applicant and the respondent were divorced in 2021. They are the
biological parents of the children who are respectively 10 and 11 years of age.
The divorce followed a mediated settlement. A consent paper and a parenting
plan were incorporated in an order of court made on 15 December 2021 in the
Western Cape Division of the High Court (Case number 17074/2021). Although
the applicant and the respondent remained co -holders of full parental rights and
responsibilities, the consent paper and parenting plan stipulated that the children
were to remain in the care of and to reside with the applicant in Cape Town and
provided for a flexible arrangement for contact with the respondent.
[6] The applicant presently resides in Ca pe Town and is self -employed. The
respondent is a farmer residing in Tarkastad in the Province of the Eastern
Cape. The children have been in his de facto custody and care since June 2023
following their refusal to return to the applicant after spending a holiday with
the respondent. On the day on which the children were to return to the applicant
in Cape Town, and at the airport in Gqeberha (formerly Port Elizabeth), the
children became hysterical and refused to board the flight for their return (the
airport incident). The airline declined to allow the children to board the flight
and had them returned to the respondent. The applicant attributes the de facto
situation to the actions of the respondent which she contends are ‘a direct
contradiction to the agreed consent order’.
[7] Prior to June 2023 the children resided with the applicant in Cape Town
where they attended primary school. During 2024 the children attended a
boarding school in KwaMaqoma (formerly Fort Beaufort). At present they are
boarders attending a girls’ school in Makhanda where they were enrolled since
January 2025.
[8] Other than infrequent telephonic contact and/or FaceTime video
interaction there has, to date, been no in -person or physical contact between the
applicant and the children. Nor has there been any indication from the children
themselves, or from the numerous mental health practitioners/clinicians
involved in the matter that the children are ready to commence with the
reunification process.
[9] During September 2022 the respondent instruc ted his attorney to direct a
letter2 to the applicant advising that he was concerned about the emotional
wellbeing of the children ever since they commenced residing with the
applicant. The respondent’s attorney recorded that the respondent’s concerns
‘stemmed from his own observations when the children are in his care as well as the feedback
from their educators’ . The letter also addressed the issue of the appointment of a
2 Answering affidavit, Annexure AS10.
therapist for the children. The response from the applicant’s erstwhile attorney
indicated that the applicant was shocked and felt ambushed by the letter. Her
sentiments were that there was ‘absolutely no build up leading to this drastic proposed
intervention’ and that the respondent should adhere to the agreed parenting plan.
[10] In Novembe r 2022 the respondent (as applicant) launched the Cape
proceedings on urgency. The notice of motion sought relief in two parts namely,
Part A: Care and Contact Assessment, and Part B: Variation of Parenting Plan
and Consent Paper. The respondent’s reason f or recourse is explained in the
following terms:
‘… I brought the application was because I had become increasingly concerned about the
children’s wellbeing and welfare in the first applicant’s care. Whenever I saw them over the
holiday periods, they refused to speak to first applicant telephonically and were very reluctant
to return to her after the holiday period. E[...] in particular was not performing well at school
and I noticed they were absent often. I wanted a childcare expert to conduct an assessme nt to
ascertain what was troubling the children and to assess whether the care and contact
arrangements that we had agreed to on divorce was optimal for them and was in their
interests.’
[11] On 3 November 2022 an interim order was granted by agreement in
respect of the Part A relief claimed in the notice of motion. The material terms
of the order are recapitulated as follows only in so far as is considered
necessary:
‘1. That psychologist Ms Leigh Pettigrew (Pettigrew) is hereby appointed by applicant
and is a uthorised forthwith to carry out an enquiry and assessment and compile a
report setting out her findings and recommendations regarding the following aspects:
1.1 what care and contact arrangements are in the parties’ minor childrens’ … best
interests; and
1.2 the functioning of both parents insofar as it may impact on their respective
1.2 the functioning of both parents insofar as it may impact on their respective
parenting skills, i.e. how the parties manage the day to day needs of the
children, see to their emotional wellbeing and provide for their physical needs.
2…
3…
4…
5. Respondent is entitled at any time before or after the filing of Pettigrew’s report to
appoint her own expert, at her cost, if she deems this necessary.
[12] The order included a timeline for the filing of further affidavits by the
parties. In addition, it incorporated the following provision:
‘7. Applicant shall thereafter be entitled to set the matter down for hearing on reasonable
notice to the respondent on the appropriate roll for the hearing of the relief sought in
Part B.’
[13] Reproduced in necessary measure, the main relief in Part B of the notice
of motion reads:
‘8. That the court order, which incorporates the consent paper and parenting plan granted
on 15 December 2021 under Case no. 17074/2021 be varied as recommended by
Pettigrew in respect of the care o f the children, including their primary residence and
the parties’ contact with them.
9…
10…’
[14] To date, Part B of the Cape proceedings has not been finally concluded.
That much appears to be common cause between the parties considering that the
applicant has attached to her founding affidavit Part A of the agreed order and
the notice of motion in the Cape proceedings.
Lis alibi pendens
[15] The invocation of a defence by way of a plea of lis alibi pendens is based
on the proposition that the dispute ( lis) between the parties should be stayed
because it is being litigated elsewhere and therefore it is inappropriate for it to
be litigated in the court in which the defence is raised. Underpinning the plea is
the policy that there should be a check on the exten t to which the same issue is
litigated between the same parties and the desirability that there be finality in
litigation to avert a situation where different courts pronounce on the same issue
with the risk that they may reach differing conclusions.3
[16] The plea shares features in common with the defence of res judicata as
they have a common underlying principle – there should be finality in litigation.
Once a suit has been commenced before a tribunal competent to adjudicate upon
it, the suit must generally be brought to its conclusion before that tribunal and
should not be replicated (lis alibi pendens). For the same reason the suit will not
be permitted to be revived once it has been properly concluded (res judicata).4
[17] In Hassan and Another v Berrange NO 5 (Hassan) the requirements for a
reliance on a plea of lis pendens were expressed in the following terms:
‘Fundamental to the plea of lis alibi pendens is the requirement that the same plaintiff has
instituted action against the same defendant for the same thing arising out of the same cause.’
[18] Put differently, the conventional requirements for a plea of lis pendens
are: same identity, same cause, and same relief – but even if the requisites are
established the court retains a discretion, premised on consi derations of fairness
and convenience to allow the matter to proceed despite the earlier pending
proceedings.6 The default position nonetheless appears to be that once the
requisites for a plea of lis pendens are established the court should be inclined to
3 Caesarstone Sdot -Yam v World of Marble and Granite 2000 CC and Others 2013 (6) SA 499 (SCA)
(Caesarstone) para 2.
4 Nestlé (South Africa) (Pty) Ltd v Mars Inc 2001 (4) SA 542 (SCA) para 16.
5 Hassan and Another v Berrange NO 2012 (6) SA 329 (SCA) para 19.
5 Hassan and Another v Berrange NO 2012 (6) SA 329 (SCA) para 19.
6 Williams v Shub 1976 (4) SA 567 (C) at 571C; Caesarstone fn3 at 513F-G; Keyter NO v Van der Meulen and
Another NNO 2014 (5) SA 215 (ECG) at 218A.
uphold it because it is undesirable for there to be litigation in two courts over
the same issue.7
[19] In Caesarstone Sdot-Yam v World of Marble and Granite 2000 CC and
Others8 (Caesarstone) the Supreme Court of Appeal (the SCA) expressed the
view that the dictum in Hassan ‘must be read as being no more than a general but not a
definitive description of the plea of lis pendens’ . Elsewhere in the judgment, the court
observed that the requisit es must not be understood in a literal sense and as
immutable prescripts.9
[20] Caesarstone was an Israeli entity that concluded an agency agreement
with the family Sachs represented by Mr Oren Sachs, and with World of Marble
and Granite (Womag). The agreement was for the distribution of quartz
products in South Africa. A dispute arose about the manner in which the
agreement was performed (or not performed) and the circumstances of its
termination. Legal proceedings were instituted in Israel and in the Western Cape
High Court in South Africa. In Israel, Caesarstone featured as plaintiff in the
action it instituted against Womag and Mr Oren Sachs who were cited as
defendants. In South Africa, Womag and the family Sachs, all as plaintiffs,
instituted their action against Caesarstone as defendant.
[21] In the South African action Caesarstone raised as a defence the plea of lis
alibi pendens . It sought a stay of the action pending the outcome of the
litigation in Israel. Cognisant that the requirement of ‘the same persons’ may be
too narrow and that it should not be narrowly confined to cases where there are
identical persons 10 Caesarstone, as defendant, was not precluded by the SCA
from raising the plea even though it was the plaintiff in the proceedings abroad.
7 Caesarstone above fn3 at 513G.
8 Caesarstone above fn3.
9 Caesarstone above fn3 at 508C.
10 Caesarstone above fn3 paras 42 and 43.
Plainly, this was a less restrictive approach presenting a departure from a literal
treatment of the ‘same identity’ requirement.
[22] In the action instituted abroad Caesarstone claimed a declaratory order
that the agency agreement had lapsed or had been cancelled. I n the action
instituted in South Africa by Womag and the Sachs family, damages were
claimed on the basis that Caesarstone repudiated the agreement. 11 The SCA
recognised that the relief claimed in the two actions differed but relaxed the
‘same relief’ requi rement. It appears to have done so on the basis that the
factual and legal issues in the proceedings abroad involved the determination of
questions necessary for the determination of the case in which the plea is raised
where the claims in both actions rev olved around the agency agreement as a
central requirement of the same cause of action.
[23] The judgment in Caesarstone conveys that the requisites for a successful
plea of lis pendens are not in all circumstances required if the central dispute,
whether legal or factual, is similar. 12 Put another way, it indicates that a rigid
approach to the requisites of identity, cause and relief is not in all circumstances
required if the central dispute is in effect similar.
Analysis
[24] Evident from Caesarstone is that the SCA sanctioned an approach that a
defendant can raise the plea even though it is the plaintiff in the other
proceedings on which the plea is based. In the present case this means th at the
respondent can rely on the plea even though he is the applicant in the Cape
proceedings. This, however, presents a possible difficulty in the way of the
respondent in relation to the involvement of the second and third applicants who
are not parties in the Cape proceedings. If those proceedings were litigated and
11 Caesarstone above fn3 para 24.
12 Caesarstone above fn3 paras 11, 20, 21, and 24.
decided, the present case provides an illustration of the type of problem in
permitting them to litigate all over again in this suit in the hope of a different
outcome merely because there i s some difference in the complement and
identity of the parties.
[25] In their written arguments the parties’ counsel presented differing views.
The contention for the second and third applicants is that they are parties to the
present case having derived their locus standi under s 15 of the Children’s Act
38 of 2005 (the Act) in their endeavour to protect the rights and best interests of
the children. The contention for the respondent is that the second and third
applicants have no standing in these proceedings because a prior conferral of
rights in respect of the children in accordance with s 23 of the Act ought first to
have been claimed and granted to the second and third applicants.
[26] Resolving the involvement of the second and third applicants is a matter
that is not without considerable difficulty. On the one hand it may not be
feasible at this stage to make a definitive finding on the competing contentions
regarding locus standi. It is not readily apparent in the confirmatory affidavits
of the second and thi rd applicants whether for purposes of s 15 of the Act they
fall within the legislated category of persons who may approach a court alleging
that a right has been infringed/threatened; or whether for the purpose of s 23 of
the Act the second and third appli cants are persons having an interest in the
care, well-being or development of the children. On the other hand there is the
stark deficiency in the affidavits which contain no allegations about the second
and third applicants’ bond or relationship with the children and why it would be
to the detriment of the children not to have contact with them, or to the benefit
of the children to have contact.
[27] Possibly, the only sensible way for this court to address the problem is to
stay the present matter until completion of the Cape proceedings. This lies in the
court’s discretionary exercise of its inherent powers to control and regulate its
own procedures. That discretion is located in s 173 of the Constitution.
[28] As to ‘cause’ and ‘relief’, it is not intended to dep art from the approach
adopted in Caesarstone. Although in his answering affidavit the respondent
believes that these requisites are dissimilar in the parallel litigation, he persists
with his contention that the present matter is lis pendens. In applicant’s heads of
argument, counsel make the following submission:
‘In order to advance these contentions Mr S[...] is constrained to conflate the issue of
restoring contact and the minor children’s relationship with Mrs S[...] (the subject of the
present application) with care and primary residence as reflected in the parenting plan and
consent order (the subject of Part B of the 2022 application). That conflation is, in our
submission, both contrived and cynical.’
[29] To the contrary, it is noted in Part B of the no tice of motion (quoted
earlier in this judgment) that the Cape proceedings envisage, as a cause, a
variation of the divorce order that incorporates the consent paper and parenting
plan. The composition of the relief indicates that an aspect of the variatio n –
though pertinent to the care and primary residence of the children – revolves
around ‘contact’ with the children. In the instant proceedings the notice of
motion read with the ‘Implementation Plan for Reunification and Contact’
envisages a structured p rocess initially entailing ‘contact’, ‘overnight contact’,
and ‘equitable shared contact’, with the process ultimately graduating to an
adaptation of the children’s boarding school schedule for ensuring meaningful
and consistent time with both parents and grandparents’. Indubitably, contact
and consistent time with both parents and grandparents’. Indubitably, contact
being one of the real issues of substance is central to both sets of proceedings. A
judicial investigation and assessment of the same factual issue/s in the one set of
proceedings will involve the determination of a ques tion that is necessary for
the determination of the case in which the plea/objection is raised. In the
circumstances a rigid approach to the requisites of identity, cause and relief is
not required where the central issue in dispute is in effect similar in both sets of
proceedings.
[30] Next, is the question whether this court should in its discretion allow full
ventilation of the matter. I can find no good reason to do so, whether on the
basis of equity or convenience.
[31] I factor into that formulation the issue o f urgency. A litigant that
approaches the court for relief on an urgent basis is obliged to comply with
uniform rule 6(12)(b) (the rule) which reads:
‘In every affidavit filed in support of any application under paragraph (a) of this subrule, the
applicant must set forth explicitly the circumstances which … render the matter urgent and
the reasons why the applicant claims that applicant could not be afforded substantial redress
at a hearing in due course.’
[32] The reasons underpinning the absence of substantial redress in due course
are significantly absent in the applicant’s certificate of urgency and founding
affidavit. The import of this peremptory requirement is that urgency is not there
for the taking. Importantly, a litigant must state the reasons why it c annot be
afforded substantial redress at a hearing in due course. The applicant’s
averments on urgency are perfunctorily limited to the following assertions:
‘130. This matter is self -evidently urgent as the minor children deserve to be reunited with
their family, friends, and myself, as their mother.
131. I have no doubt that E[...] and A[...] deserve healthy relationships, which they
previously experienced two years ago, when they were in my care.
132. The present recalcitrance on the part of Mr S[...] to cooperate with a reunification and
access regime, in breach of the High Court order is self -evidently urgent and not in
the best interests of the minor children.
…
134. I am also advised that the violat ion of a court order, (and especially one by
agreement) creates urgency.’
[33] In her heads of argument the attempt is made to augment the applicant’s
assertions of urgency where reference is made to the Constitution, the
Children’s Act, as well as the United N ations Convention on the Rights of the
Child, and case law in which the best -interests-of-the-child-principle is
accentuated for the treatment and protection of children.
[34] The premise of the application therefore appears to be the best interests of
the children and the respondent’s breach of the divorce order.
[35] While certain disputes or categories of disputes such as contempt of court
matters and cases related to minor children have been regarded as inherently
urgent, my sense is that urgency must still be fo unded on a properly pleaded
case for that exigency. The fact that a matter is alleged to be urgent does not by
itself found urgency for purposes of the rule. 13 Urgency is not determined
exclusively by the nature of the matter/claim but by the circumstances in which
the applicant seeks its adjudication.
[36] In the present matter those circumstances are consummately detailed in
two letters directed by the respondent’s attorney to the applicant’s attorney. This
judgment should be read as if specifically incorporat ing their contents.
Illustrating the recommendations and input from various experts, the letters
13 See Siyakhulisa Trading Enterprise (Pty) Ltd v Glencore Operations South Africa (Pty) Ltd and Another
(2023 –038568) [2023] ZAGPJHC 1099 (2 October 2023) para 5 quoting with approval Volvo Financial
Services Southern Africa (Pty) Ltd v Adamas Tkolose Trading CC (2023/067290) [2023] ZAGPJHC 846 (1
August 2023) paras 4, 5, 6, 7 and 8.
assume weight in clarifying the context, historical chronology, and the status of
the Cape proceedings.
[37] The first is a letter dated 12 May 2025 and the second is the letter of
15 October 2025. 14 The first letter proffers a comprehensive briefing of the
factual history and the litigation between the parties and mentions the
participation of various experts, their reports and joint minutes filed of record
(all of whom, as I understand, became involved in the flow of events after the
order under Part A of the Cape Proceedings was granted). The second letter
presents a detailed and straightforward engagement with the shortcomings in the
applicant’s papers in the present application. Of note is that there is a reiteration
of a proposal made in the first letter (subsequently repeated in a further letter
dated 21 July 2025, which elicited no response from the applicant’s attorney)
that the psychologist 15 appointed by agreement between the parties, meets with
the children to ascertain whether they are prepared to exercise contact with the
applicant. In that regard the applicant (as well as the experts she engaged during
2025) has overlooked eliciting the views of the children for consideration before
launching these proceedings. This mechanism is legislated in s 10 of the Act.
[38] I have given consideration to the material raised in these letters and the
material to which reference is made in the affidavits filed of record. The
conclusion may justifiably be drawn that the applicant has not established
urgency. Not only does this stem from her failure to address the requirements of
the rule but it is also borne from the factual chronology in the timeline of events
meticulously se t out in the letters aforementioned (of which more is detailed
below).
14 Respectively annexures CS21 and AS1.
15 Ms Kerry Yates.
[39] It is indubitable that a reunification process flowing from the Cape
proceedings is underway. Relevant, are the events set out below as they
unfolded.
[40] Pursuant to the order in Part A, M s Leigh Pettigrew, a psychologist,
released her initial report on 23 August 2023 which report dealt, inter alia with
the airport incident and in which care and contact recommendations as to the
best interests of the children were made. Significantly, she states:
‘The writer is strongly of the opinion that the girls should not have contact with C[...] until
such time as they are ready to do so. This recommendation is made in the light of the manner
in which this matter has evolved. The girls need to feel that C[...] has heard them and respects
their voice. They also need to feel that C[...] is not going to minimise and control their space
and their feelings. Finally, the girls need to know what it is like to miss C[...]. Her current
intrusiveness allows very little space for this to take place.’
[41] Shortly after the release of the report by Ms Pettigrew, the applicant
appointed a clinical psychologist, Ms Pam Tudin as her expert to commence
with an assessment that entailed travel to Tarkastad during September 202 3.
More about Ms Tudin’s report appears below.
[42] On 27 September 2023 Ms Pettigrew released an addendum to her report
following allegations of sexual abuse raised by the children against the
applicant. It was recommended that the applicant undergoes a full p sychiatric
assessment with a clinician identified as Dr Wayne Saunders and that contact
with the children be implemented through the medium of a supervisor. The
recommendation was made from the viewpoint of healing the relationship
between the applicant an d the children. The applicant acceded to the
recommendation for assessment, albeit by engaging two clinicians of her own
choice, a psychiatrist Dr N Cassimjee (whose scope and depth of his report
generated concerns with Ms Pettigrew) and Dr Sarah Boshoff, a specialist
psychiatrist.
[43] Whereas Dr Cassimjee concluded that the applicant ‘does not currently
display any significant symptoms of mental illness that may compromise her functioning’ –
Dr Boshoff expresses the view that the applicant ‘does not currently display any
symptoms of severe mental illness’, and although having support structures in place
that have enabled her to continue with healthy habits beneficial to her mental
health, she is distressed regarding the lack of contact and communication with
her daughters.
[44] On 16 October 2023 Ms Pettigrew released a further report after the
respondent sought input on the possibility of the children having contact with
the applicant. In that report she records the following:
‘[The] writer is of the opinion that contact between C[...] and the girls is premature and
carries a high risk of the girls regressing from the progress they have recently made and of
E[...] being re-traumatised. The girls require more time in therapy and C[...] needs to embrace
the treatment recommendations with greater honesty and transparency. As such the writer is
concerned that should any contact that is arranged now re -traumatise the girls, it may make
contact with C[...] in the future more difficult to engage in. The writer is, therefore not of the
opinion that contact between C[...] and her girls should take place now. It is premature … ’
[45] In addition, Ms Pettigrew proposed an outline initiating the reintroduction
of contact between the applicant and the children to be supervised by Ms Tracey
Whitehead, a psychiatrist. Such contact was exercised on 20 October 2023. In
her care and contact report, Ms Whitehead stated:
‘Once the girls are stabilised the writer would recommend mother and daughter therapy
sessions to repair the relationship in a safe space. As the girls were vehemently opposed to
seeing C[...] it was, nevertheless forced upon them, removing their autonomy and reinforcing
seeing C[...] it was, nevertheless forced upon them, removing their autonomy and reinforcing
the feeling of not being heard by C[...]. This seems to have resulted in the re-traumatising and
reinforcement of the fear that their mother is a danger to their safety. The writer fears that
future visits with C[...] will be far more difficult for E[...] and A[...] to engage in.’
[46] In October 2023 Ms Kerry Yates, a school psychologist, was mandated to
assist the children to develop skills conducive to their emotional well -being in
preparation for their reunification with the applicant. The appointment of Ms
Yates was recommended by the parties’ experts Ms Pettigrew and Ms Tudin. In
the previously mentioned letter of 15 October 2025 the respondent’s attorney
points out:
‘Yates is not obliged to give the parties feedback on her sessions with the children, as her
mandate is to report back to Tudin and Pettigrew regarding the children’s readiness to
commence with the reunification process. To date Yates has not advised either expert that the
children are in fact ready.’
[47] On 13 December 2023 Ms Tudin prepared her assessment report
following her appointmen t in September 2023 at the instance of the applicant.
There is a dispute between the parties as to whether this report was timeously
made available to the respondent. His complaint is that it was only made
available on 6 October 2025 after the applicant in itiated the present matter on
urgency. In response to censure that he had been dilatory by more than two
years for his failure to have brought the Cape proceedings to finality, his
rebuttal is that the proceedings would have been set down for determination had
the report been made available at any time sooner. The criticism levelled against
the respondent is entirely misplaced and vacuous given the timing and manner
in which events evolved after the order in Part A of the proceedings was
obtained.
[48] Ms Tudin’s report confirms that she undertook a home visit to Tarkastad
on 5 December 2023 where she met with the children and ‘Mr and Mrs S[...]
(senior)’. She indicated that she interviewed Ms Yates and Ms Whitehead in the
preparation of her report. The report hi ghlighted the views of psychologist
Doctor Glyde Thompson who worked with the children over a period of several
months who indicated that during his therapy: ‘[N]o mention of a conflictual or
hurtful or destructive relationship with their mother was raised ’; and ‘the girls appeared to
be spontaneously happy when interacting and engaged with their mother, they were loving
and tactile in the engagement.’
[49] Elsewhere in her report, Ms Tudin records her personal observation
regarding her visit:
‘The children remain very resistant to the idea of having contact with their mother.’
and,
‘This was corroborated by the children’s current therapist, Ms Yates as well as the observing
therapist, Ms Whitehead both in written communication and in the respective interviews.’
[50] Importantly, Ms Tudin made inter alia findings and recommendations to
the effect that she believed that contact be restored between the applicant and
the children and that it be done in a particular and careful manner; and that
reunification would best be achieved under the guidance of a skilled therapist in
a therapeutic setting.
[51] After a visit by Ms Tudin and Ms Pettigrew to the respondent’s farm to
investigate the allegations of sexual abuse, a joint minute was released on
28 February 2024. This was follo wed by two further joint minutes of 19 June
2024 and 30 July 2024. What was outlined was a process that the parties’
experts had agreed on for the reunification process. Quoting again from the
letter of 15 October 2025, it reads:
‘[D]espite this proposal a nd the weekly intervention of Yates, both children indicated that
they did not want to exercise contact with your client and Yates confirmed to Pettigrew and
Tudin that they both were not ready to commence with the process. It was agreed by the
experts that the matter would be reconsidered and reviewed after 6 months. The joint minute
of 30 July 2024 records the following:
“After discussion, Pettigrew and Tudin are of the opinion that forcing the girls to see C[...]
will not only have a negative impact on t heir relationship with C[...] but could in fact have a
further damaging impact on them emotionally and hinder the progress that has been made to
date. As such, the writers are strongly advocating that the girls require more time with Kerry
and that while the process…will now be delayed, it remains in place for now. The writers will
contact Ms Yates again at the end of October 2024, or sooner should Ms Yates contact the
writers in the interim, in order to ascertain if there have been any shifts in this regar d. The
writers wish to record that Ms Yates has been able to work with both girls respectively
without any parental intrusion. The space she has created for them has, therefore, remained a
protected and safe space for both girls. We thank both A[...] and C[...] for respecting this.” ’
[52] On 24 April 2025 the applicant’s attorney directed a letter to the
respondent’s attorney advising that the applicant had appointed two further
experts, Dr Heather Rauch and Mr Iain Reid. The response from the
respondent’s atto rney (the letter of 12 May 2025) appears to convey the
understanding that the applicant had terminated Ms Tudin’s mandate. Ms
Tudin’s extensive involvement in the matter is evident from the chronology of
events. While it is not intended to explore the impl ications of the impasse in the
parties’ correspondence, the termination of Ms Tudin’s mandate – if indeed that
did occur – raises the uncertainty whether or not her report and joint minutes
have been repudiated, notwithstanding their inclusion in the appli cant’s
founding affidavit. As is evident from the views held out in the letter of 12 May
2025 from the respondent’s attorneys, the implications of the applicant’s stance
2025 from the respondent’s attorneys, the implications of the applicant’s stance
in the appointment of two further experts are not without consequence. Quoted
where relevant, the extracts read:
‘Further, it is requested, why your client wishes for two further individuals to be appointed to
conduct an assessment especially in circumstances where several joint minutes have been
released on the way forward in this matter, which recommendations are in the best interests
of the children. It is also asked, what purpose this assessment will achieve? It can never be
deemed to be in the children’s best interest to be exposed to multiple professional experts and
our client is conc erned that we will find the children being over -exposed to further
professional involvement.
Our client has a grave concern, that should your client insist on a further assessment, the
negative impact that this assessment will have, considering the progres s the children have
shown over the past few months, far outweighs any positive reunification between your client
and the children. A further concern, as highlighted in every report and minute, is that your
client’s conduct, in forcing the children to parti cipate in the assessment, will further alienate
your client from them.’
[53] What follows thereafter in the letter is the proposal:
‘It is our instructions to propose, whether your client would be amenable, for Yates to meet
with the children to ascertain wheth er they are prepared to exercise contact with your client
and if so, how that process can be achieved. Alternatively, whether the parties are to agree to
the appointment of a psychologist for the children, together with the assistance of Yates, as
well as the school, to identify this person, who can continue with the children’s therapy and a
system where needed.’
[54] During 2025 and prior to the institution of these proceedings the applicant
obtained additional reports from clinical psychologist Mr Iain Reid (2 8 July
2025); social worker Dr Heather Rauch (25 July 2025); and clinical
psychologist Professor Louise Stroud (11 September 2025). Drawing upon the
noteworthy aspects of the reports, these experts agree that the historical matrix
evinces indications of pa rental alienation rather than estrangement; that
reunification be instituted urgently and be guided by a facilitator in a
multidisciplinary team context; and that the applicant’s psychiatric history is not
multidisciplinary team context; and that the applicant’s psychiatric history is not
consistent with any major psychological difficulti es. Professor Stroud on the
other hand attaches limited weight to the report by Ms Pettigrew and expresses
reservations about the approach adopted by her in particular, that her
classification of the withdrawal by the children as ‘estrangement’, premised o n
the findings of maternal shortcomings is inconsistent with the relevant evidence
in various reports. Professor Stroud ultimately expresses the view that:
‘Taken together, the findings of independent professionals point to a consistent pattern: [the
applicant] does not suffer from a psychiatric disorder, the children’s rejection aligns with
alienation rather than estrangement, and continued barriers to contact place [the children] at
serious risk of long-term psychological harm’;
…
‘The evaluation conducted in the S[...]/S[...] matter attributed unsupported psychiatric
diagnosis to C[...], aligned disproportionately with A[...] S[...]’s narrative while disregarding
collateral evidence, and in doing so contributed to parental alienati on by pathologising the
mother and reinforcing the polarising family dynamic… Further, the evaluation overreached
into judicial function by issuing prescriptive access recommendations beyond the available
evidence’;
and
‘It is respectfully submitted that limited weight should be given to the prescriptive aspects of
the evaluation report provided by Ms Pettigrew.’
[55] I draw no conclusions nor do I make any specific findings of fact from
the material rehearsed in the above paragraphs. What does e merge is that a
reunification process is underway and that it cannot be dispensed with. The
submission in the respondent’s heads of argument that a psychological process,
in the context of this matter, has no fixed timeline requires keen reflection
notwithstanding the urgency mooted by the applicant’s experts. Tellingly, they
have had no personal engagement with the children.
[56] Given the history of the matter I am of the view that entertaining it would
result in a duplication of the unification process with t he possibility that the
potential for appointment of further experts and/or supplementation of existing
reports and minutes may not bring the parties closer to a resolution of the issues
between them.
Condonation
[57] There is the final aspect regarding condona tion of the respondent’s
answering affidavit. The established prescripts for condonation are clear,
entailing the exercise of a judicial discretion premised on the overriding
consideration of the interests of justice – an expression that includes but is no t
limited to: the extent and cause of the delay and the reasonableness of the
explanation therefor; the nature of the proceedings and content of the material
before court; and prejudice to any of the parties.
[58] The late delivery (five court days equating to seven calendar days) of the
answering affidavit invited objection on the basis that the applicants were left
with less than two days to file replying papers and heads of argument.
[59] I accept that the explanation put up by the respondent is slender. It does
not inspire confidence that he is candid – but overall the delay did not preclude
the matter from proceeding on the date appointed in notice of motion. Nor did it
impede any of the parties’ legal representatives in their preparation and delivery
of argument.
[60] It is my view that an appreciation of the history of the parallel litigation –
in particular, the uncovering of facts and events and the attendant expert
involvement disclosing the extant reunification process – would not have been
possible without the answering affidavit. In point, the applicant’s certificate of
urgency does not explicitly mention the extant process, nor can one draw a
reasonable deduction to that effect having regard to its factual structure and
composition which advocates for a reunif ication process minted in the relief
claimed in the notice of motion. On balance, condonation is granted.
[61] To conclude, no good grounds have been shown why the respondent’s lis
alibi pendens objection should not be given effect to, nor have are there grounds
to persuade this court to make a determination on the merits of the case put
forward by the applicant.
[62] I make the following order:
1. The late delivery of the respondent’s answering affidavit is condoned.
2. The proceedings instituted in this Court in Case Number 2025-181191
are stayed pending determination of the proceedings in the Western
Cape Division of the High Court in Case Number 17118/2022.
3. The applicants, jointly and severally, the one paying, the others to be
absolved, are ordered to pay the responde nt’s costs as between party
and party, such costs to include the costs of travel and accommodation
for his counsel and his attorney.
____________________________
M. S. RUGUNANAN
JUDGE OF THE HIGH COURT
Appearances:
For the Applicants: J S Andersen SC and G W W Brown , Instructed by
Wheeldon Rushmere & Cole Inc., Makhanda,(Ref: B Brody)
For the Respondent: M Baartman , Instructed by Cluver Markotter Inc.,
Stellenbosch, c/o Whitesides Attorneys, Makhanda, (Ref: G Barrow)
Date heard: 11 November 2025.
Date delivered: 20 January 2026.