SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case 2026-028549
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
Date: 26 February 2026
In the matter between:
L[...] P[...] R[...] Applicant
and
M[...] M[...] Respondent
JUDGMENT
DU PLESSIS J
Introduction
[1] This urgent application concerns the interim care and contact arrangements of
two minor children, L[...] (7) and S[...] (4), pending the outcome of a forensic
assessment and the determination of Part B of the application. In all such matters,
2
the Court is guided by the paramountcy of the best interests of the child in terms of
section 28(2) of the Constitution and section 9 of the Children's Act.1
[2] The parties were in a romantic relationship, from which the two children were
born. They separated in or about September 2025.
[3] The applicant seeks, in essence, to preserve primary residence with her, to
secure a structured contact regime regulating the children 's contact with the
respondent, and to procure the appointment of a forensic psychologist to investigate
and make recommendations regarding the longer ‑term care and contact
arrangements.
[4] The respondent opposes the urgency and much of the relief, contending that
the urgency is self ‑created, that there is no crisis to speak of, and that both parties
are, and should remain, co ‑primary caregivers. He considers the structured regime
proposed by the applicant to be unduly restrictive. His affidavits are couched in
robust terms, but the core point is that he seeks more time with the children, not less.
Urgency
[5] Because the matter has been enrolled on the urgent family roll, the applicant
must make out a case for urgency, which the respondent argues she has failed to
do. The respondent points out that the parties separated in September 2025 and
that, since then, he has regularly exercised contact facilitated by the applicant. He
says there is no specific recent "crisis" that would justify hearing the matter urgently.2
[6] The applicant accepts that there may not be a single trigger event, but bases
her urgency on a pattern of conduct she deems detrimental to the children. She
states that, particularly during November 2025 to February 2026, the respondent
engaged in conduct which, cumulatively, renders the matter urgent. For instance, he
removed the children early from school under the guise of 'appointments' to spend
1 38 of 2005.
2 See Rule 6(12)(b) and East Rock Trading 7 (Pty) Ltd v Eagle Valley Granite (Pty) Ltd [2011] ZAGPJHC 196
(GSJ) para 6–9.
3
time with them contrary to what she had requested; he failed to inform her of their
whereabouts; he refused to return them at agreed times; he used relatives to collect
them during school hours on non ‑contact days; and he resisted requests to fix
predictable times for telephonic contact in line with their bedtime and therapeutic
routines. She provided repeated instances in which the respondent collected the
children from school before the end of the school day, without her knowledge or
consent, and instances in which the school itself contacted her about his
unannounced collection of the children.
[7] Disruption of the children 's school routine is a cause for concern. While the
urgency does not arise from a single crisis event, persistent interference with the
children's education, particularly during these foundational years, is troubling. The
ongoing disagreements between the parties are not isolated incidents concerning a
weekend or a particular occasion; they illustrate a continuing pattern of
unpredictable, unilateral changes to the children 's daily routines and educational
environment, instead of predictable, structured and collaborative co‑parenting.
[8] It is unreasonable to expect the applicant to delay action until matters
escalate into a dramatic crisis. The children are already adjusting to their parents '
separation, and subjecting them to further stress should be avoided. 3 The pressure
on a caregiver faced with repeated unpredictability is cumulative and may make
emotions unbearable, which in turn increases the urgency. That emotional pressure
is not, in itself, dispositive, but it explains why a matter may crystallise as urgent only
after a series of events rather than a single dramatic incident.
[9] The respondent's argument that there is no urgency because he is a capable
and loving father and the children enjoy spending time with him does not address the
core issue: the urgency stems from the impact of unpredictability on their well ‑being,
core issue: the urgency stems from the impact of unpredictability on their well ‑being,
not from a denial of his importance in their lives.
3 C.A.L v A.L [2023] ZANWHC 77 see para 20 where it sometimes the impact on minor children cannot be
undone, and that that cannot be fixed by “substantial redress in due course”.
4
[10] On the papers, the applicant has made attempts to resolve the contact
arrangements consensually, including proposing a neutral forensic assessment.
These efforts did not yield a structured, reliable regime. Instead, she is confronted
with persistent, documented unpredictability around school collections and contact,
in circumstances where the respondent has repeatedly asserted that, absent a court
order, he will exercise his parental rights as he sees fit. That is the context in which
this application was launched.
[11] The turnaround time in the family court is comparatively short. Even so, I
deem the fact that minor children are involved.4 The parties ' current inability to
co‑parent predictably at this stage of their breakup, and the factors that justify the
matter being enrolled on the urgent roll for a limited interim intervention to bridge the
arrangements until a longer ‑term regime can be crafted with the assistance of
appropriate experts.
[12] I accordingly condone the applicant's non‑compliance with the rules and enrol
the matter as urgent.
Merits
Care and contact
[13] In determining interim care and contact, I am guided by the constitutional
injunction that a child 's best interests are of paramount importance in every matter
concerning the child (section 28(2) of the Constitution) and by section 9 of the
Children's Act,5 which requires that standard to be applied in all matters concerning
the care, protection and well ‑being of a child. The jurisprudence has long stressed
that the child 's welfare is central and that contact is determined with reference to
what is in the child's best interests, not as a parental entitlement.6
4 RMD v KD [2023] ZAKZPHC 2 para 6. Mossop J declined to strike a matter involving a minor child from the roll
for lack of urgency, holding that where parents cannot agree and decisions affecting the child’s immediate future
must be made, the court may intervene urgently in the child’s best interests.
5 38 of 2005.
must be made, the court may intervene urgently in the child’s best interests.
5 38 of 2005.
6 B v S 1995 (3) SA 571 (A) at 583G.
5
[14] It is clear from the papers and was confirmed in the submissions that both
parties love their children and that the children are attached to both of them. It is also
evident that, before and after the separation, both parties have been involved in the
children's care, with the assistance of a child-minder.
[15] The applicant submits that she has been the children 's stable, day ‑to‑day
caregiver, as they primarily reside with her, in part because the respondent 's
demanding work schedule involves significant travel and irregular hours. She tenders
that the status quo be preserved by confirming primary residence in her, while the
respondent exercises weekly contact in the form of alternate weekend sleepovers
and mid‑week contact sessions. The respondent, by contrast, seeks more extensive
mid‑week sleepovers, in a pattern approximating an equal‑time arrangement.
[16] When considering the issues before me, I did not have the benefit of an
expert report specifically addressing the issue of residency, care and contact .7 In
these circumstances, I am not sufficiently informed to order a shared ‑residence
regime for the children, particularly given the existing instability. The weight of the
evidence favours retaining primary residence with the applicant, while increasing the
predictability and structure of the respondent's contact.
[17] This is not an indictment of the respondent or his ability to take care of the
children. From the papers , it is clear that the children are bonded to their father and
desire to spend more time with him. It is not in their best interest that his involvement
be restricted to a minimum or conservative level, if a somewhat more generous and
structured pattern can be managed without undermining their routine and the
security it provides at this stage of the parties' breakup.
[18] I therefore agree that the respondent should have additional mid ‑week
overnight contact, particularly in light of his complaint that the afternoons he spends
overnight contact, particularly in light of his complaint that the afternoons he spends
with the children are largely consumed by transporting them from school to therapy
and then back to the applicant's home. Spending an inordinate amount of time on the
7 Terblanche v Terblanche 1992 (1) SA 501 (W) at 504C.
6
roads in Johannesburg is the bane of any parent 's existence. While time spent in the
car travelling is often precious, it is not necessarily relaxing quality time.
[19] A workable compromise is to introduce a Thursday sleepover during school
term, along with the alternate weekends. This means that during one week it will be
a single overnight on Thursday, and in the alternate week it will result in a Thursday–
Sunday afternoon contact.
[20] The respondent 's desire for near ‑equal time also calls for a final brief
comment. In K.O. v M.S.,8 the court cautioned against the misconception that shared
residency is required for a quality relationship between a non ‑residential parent and
a minor child, and emphasised that the quality of parenting, rather than the quantity
of time, is what ultimately matters. That insight resonates in this case.
The role of child-minders and extended family
[21] The child-minders play a stabilising role in this family 's life. Both parties rely
on help, and the children are accustomed to their presence. However, child-minders
should not be placed at the centre of the parties ' acrimony or used as conduits for
conflict. At the same time, their consistent presence during sleepovers can provide
continuity for the children. I am reluctant to make an order that binds people who are
not before me and who have not had a chance to voice their preferences. I do,
however, record that, should they agree, their accompanying the children for
sleepovers can have a stabilising effect.
[22] Likewise, the extended family can be a source of enrichment, connection and
support for the children, particularly in a culture where communal caregiving is
valued. Still, it remains for the parents to ensure that core decisions about care and
contact are made between them, and that relatives are not used to undermine or
evade the contact regime.
[23] In the interim, until a forensic psychologist has had the opportunity to observe
[23] In the interim, until a forensic psychologist has had the opportunity to observe
the family and provide a report with a more thorough picture of the children's set ‑up,
8 2025 ZAGPPHC 192 paras 57 and 67.
7
the care and contact regime relates only to the parties . Sleepover contact may not
be exercised vicariously by family members, unless both parties are out of town . In
this event, a family member of the parent who would otherwise have exercised the
sleepover contact may do so.
Travel and "make-up" regime
[24] The respondent's work entails national and international travel. In the past , he
has taken the children on trips with the applicant's consent, and sometimes that
travel has impacted his contact time with them when they did not accompany him .
The travel itself is not a negative factor, but the effect it may have on the structured
care and contact regime set out in this order can create practical difficulties. It also
makes it more challenging to craft an order that remains fair to both parties.
[25] Nevertheless, a fair approach is, first, that any parent whose travel will
materially affect scheduled contact must inform the other parent, in writing, as soon
as reasonably possible , of the dates and the anticipated impact on contact. This is
for two reasons: most importantly, so that the children can be informed and their
expectations managed, and secondly, so that scheduled contact can, as far as
reasonably practicable, be made up either in advance or on the parent 's return, by
agreement between the par ties. If they are unable to agree, the missed contact will
not automatically accumulate indefinitely; rather, the parties are expected, in good
faith, to attempt to restore a fair balance over time, always bearing in mind the
children's need for predictability.
School attendance and collections
[26] As stated above, the respondent 's removal of the children from school during
the school day, often without notice to the applicant and sometimes for reasons that
do not justify interfering with the school day, is cause for concern. The children 's
school environment should be a place of safety and routine, not a stage for parental
school environment should be a place of safety and routine, not a stage for parental
conflict. This matters both for their education and their emotional stability.
.
[27] For this reason, it is necessary to include a provision that the children are only
to be collected from school at the normal end of the school day, save where the
8
school itself has informed either parent that a child is unwell and needs to be
collected, or where both parents agree in writing (by email or WhatsApp) to an early
collection for a specific, limited purpose. Neither parent is to engage school staff to
secure an early release of a child, save in genuine emergencies or with the other
parent's prior agreement.
[28] Schools cannot be expected to enforce court orders that regulate the
relationship between quarrelling parents, and teachers and other staff should , in an
ideal world, not be required to mediate such high -conflict that often plays out on
school grounds. Nonetheless, a copy of the order should be brought to the attention
of the children 's school, so that the school is informed about the interim
arrangement.
Forensic assessment
[29] The complexity of the factual disputes in this matter, including the parties '
differing parenting styles and the children 's therapeutic needs, makes it appropriate
to call on specialised expertise. As noted in K.O v M.S,9 the purpose of such a report
is to assist and provide a court with an objective opin ion on the emotional and
interpersonal interactions between all parties.
[30] Both parties now accept, at least in principle, that a forensic psychologist
should be appointed to investigate the care, contact and residence arrangements
and to make recommendations to the court. This is consistent with the court's role as
upper guardian and the recognition that expert evidence can assist in complex
parenting disputes. The only remaining disagreement s are the identity of the
psychologist and the apportionment of costs.
[31] The applicant proposed Dr O'Mahony, who has relevant forensic experience
and could commence relatively soon. The respondent raised no articulate objection
to her suitability at the time the application was launched , he simply rejected the
suggestion. However, it is undesirable in a matter fraught with distrust that the expert
9 [2025] ZAGPPHC 192 para 47 onwards.
9
be perceived as chosen by one party and imposed on another. On the other hand,
the appointment should not be delayed indefinitely because a party cannot agree.
[32] A pragmatic mechanism is to direct each party to nominate two suitably
qualified forensic psychologists. If the parties themselves cannot agree on a person
from that list, the list is to be referred to a neutral body, such as the Gauteng Family
Law Forum, to select one, taking into account the person 's expertise and the need
for a speedy commencement of the assessment. Given the apparent disparity in the
parties' financial positions, an 80/20 split (respondent/applicant) of the expert's costs
is appropriate at this stage.
[33] Both parties are to co -operate fully with the assessment and to make the
children available for interviews, observation and any collateral processes required
by the expert.
Conclusion
[34] Much is made o f the pa rties' papers regarding their various emotional
challenges, including an incident in September 2025. Courts must be slow to equate
the existence of mental -health challenges with parental unfitness, especially in
instances where a person sought professional help to deal with them. It would be
deeply concerning if a person 's attempt to address their own mental health
responsibly is used against them in court papers to disqualify them from being a
present parent, absent any cogent evidence from an expert that their condition
renders them unsafe or unable to care appropriately for children. None of what was
said about either party 's mental health status impacted what I have decided. Courts
have repeatedly emphasised that the best interests of the child, not the parents '
disputes, are central.10 That is what has guided my decision-making.
[35] As the upper guardian of these two children as well, I am concerned about
their well -being and take cognisance of the fact that, in times of emotional
their well -being and take cognisance of the fact that, in times of emotional
uncertainty, a predictable daily structure can support the children in processing their
feelings. The complexities of the court order may be difficult to explain. Of course, it
10 B v S 1995 (3) SA 571 (A) at 583G.
10
is for the parents and therapists to decide how best to communicate the order to the
children, but one practical tool may be a monthly calendar that indicates on what
dates and times they will be with their dad, and on what dates and times they will be
with their mom. A visual explanation often help s them to understand and manage
their expectations. To help with the communication, I have prepared a brief letter
addressed to the children, explaining this order in age ‑appropriate language. It does
not form pa rt of the order itself, but the parties are authorised, and encouraged, to
share it with the children in consultation with their therapist.
Costs
[36] The applicant has been substantially successful in obtaining urgent,
structured interim relief and in securing a mechanism for a forensic assessment, as
she required from the onset of the disagreements. The respondent 's stance on
urgency and the necessity of expert input shifted over time and, on the papers, has
contributed to the need for court intervention. In the circumstances, I am satisfied
that the respondent bears the costs of part A, and that the appropriate scale , in
terms of Rule 67A, is scale B.
Order
[37] Accordingly, the following order is made:
1. The applicant's non-compliance with the Uniform Rules of Court is condoned,
and the matter is heard as an urgent matter in terms of Rule 6(12).
2. Pending the report and recommendations of a forensic psychologist and the
final determination of Part B of this application, the following interim regime
shall apply:
2.1. The minor children, L[...] M[...] M[...] M[...] ("L[...]") and S[...] M[...] E[...]
M[...] ("S[...]"), shall reside primarily with the applicant.
2.2. During school terms, the respondent shall be entitled to exercise contact
with the children on the following basis:
2.2.1. The respondent may collect the children from the applicant 's
residence on Tuesdays at 07h20 to take them to school.
11
2.2.2. The respondent may collect the children from school after 16h00
on Tuesdays, in alignment with their extracurricular schedule, and
shall return them to the applicant's residence by 19h00.
2.2.3. The respondent shall have sleepover contact on Thursdays.
2.2.3.1. In the first week ( "Week A"), the respondent shall collect
the children from school after 16h00 on Thursday, in alignment
with their extracurricular schedule, and the children shall sleep
over at his residence that night. He shall return them to school on
Friday morning.
2.2.3.2. In the alternate week ( "Week B "), which shall coincide
with the respondent 's alternate weekend contact as set out in
2.3, the respondent shall collect the children from school after
16h00 on Thursday and they shall remain in his care overnight
on Thursday, Friday and Saturday nights. He shall return them to
the applicant by 17h00 on Sunday, at her residence.
2.2.3.3. On the Thursdays that L[...] has therapy, the respondent
shall collect the children no later than 15h15, and transport L[...]
to her therapy session.
2.2.3.4. The first week after this order is "Week A".
2.3. Sleepover contact shall occur every second weekend ("Week B") at the
respondent's residence, from Thursday after school until Sunday at
17h00. He shall return the children to the applicant at her residence.
2.3.1. When S[...] is in the respondent 's care over a weekend, the
respondent shall ensure that he attends his therapy session on
Saturdays from 12h00 to 13h00.
2.4. During school holidays and on public holidays, the following shall apply:
2.4.1. During all school holidays, including the December/January
holiday, the children's holiday time shall, as a general rule, be shared
equally between the parents on a half ‑half basis, to be arranged by
agreement in writing, taking into account their travel plans and the
children's reasonable holiday activities. If they cannot agree, each
parent shall be entitled to half of the holiday by number of overnights ,
parent shall be entitled to half of the holiday by number of overnights ,
with the applicant having the first half in the first holiday following this
order and the respondent the second half, alternating thereafter.
12
2.4.2. In addition to the half ‑half division of the December/January
holiday, one parent shall have the children with them over Christmas,
and the other over New Year, alternating annually. In 2026, the
applicant shall have the Christmas period and the respondent shall
have the New Year period; thereafter, the roles shall alternate each
year.
2.4.3. Public holidays that fall on a day when the children are with a
parent shall be spent with that parent, unless the parties agree
otherwise in writing. Where a public holiday falls on a Friday or a
Monday which is adjacent to an alternate weekend (Week B), it shall
be added to that weekend.
2.5. The children shall attend school regularly in accordance with the school 's
timetable.
2.5.1. Save i f the school itself has informed a parent that a child is
unwell and must be collected, or save where both parents have
agreed in writing (including by email or WhatsApp) to a particular
early collection for a specific purpose, neither parent shall remove, or
cause any third party to remove, a child from school before the
normal end of the school day.
2.5.2. Neither parent shall approach the school staff to secure early
release of a child, except in a genuine emergency or with the prior
written consent of the other parent.
2.6. Daily windows for telephonic or video contact between the children and
the non-residential parent when they are not in that parent 's physical care
will fall between 17h00 and 18h30.
2.6.1. Neither parent shall contact the children outside the agreed -
upon windows, except in an emergency or with the other parent's
prior arrangem ent. Neither parent shall use the child-minder,
teachers, or other third parties as intermediaries to circumvent this
arrangement.
2.7. Any parent whose travel (local or international) will materially affect the
contact time scheduled in terms of this order shall, as soon as reasonably
practicable after becoming aware of the travel, inform the other parent in
practicable after becoming aware of the travel, inform the other parent in
writing of the dates and the anticipated impact on contact.
13
2.7.1. Where, because of such travel, a parent is unable to exercise
scheduled contact, the parties shall in good faith endeavour to agree,
in writing, on reasonable "make-up" contact for that parent, having
regard to the children's routine and commitments.
2.7.2. If the parties cannot agree, missed contact shall not
automatically accumulate, but both parents shall keep in mind, in
future scheduling discussions, the desirability of maintaining a broadly
fair balance of meaningful time with each parent over the medium
term, always bearing in mind the children's need for predictability.
3. A suitably qualified forensic psychologist shall be appointed to conduct a
comprehensive assessment into the care, contact and residence
arrangements of the minor children and to make recommendations to the
decision-maker seized with the matter . The appointment shall proceed as
follows:
3.1. Within five court days of this order, each party shall, in writing, nominate
two forensic psychologists with demonstrable experience in child -focused
forensic assessments in high-conflict parenting disputes.
3.2. Within five court days of receipt of both sets of nominations, the parties
will endeavour to agree on a person, failing which the parties ' legal
representatives shall jointly submit the four names to the Gauteng Family
Law Forum and request that one of them be designated to conduct the
assessment, taking into account expertise, availability and the need for
expeditious completion.
3.3. The costs of the forensic assessment shall be borne 80% by the
respondent and 20% by the applicant.
3.4. Both parties are directed to co -operate fully with the assessment, to sign
any reasonable consent forms required, to make themselves and the
children reasonably available for interviews and observations, and not to
seek to influence the expert to align with their respective positions.
4. Upon receipt of the forensic psychologist 's report and recommendations, the
4. Upon receipt of the forensic psychologist 's report and recommendations, the
parties shall be entitled to supplement their papers in Part B of the application
as follows:
4.1. The applicant shall deliver a supplementary founding affidavit within ten
days of receipt of the report.
14
4.2. The respondent shall deliver a supplementary answering affidavit within
ten days of receipt of the applicant's supplementary founding affidavit.
4.3. The applicant may deliver a supplementary replying affidavit within ten
days of receipt of the respondent's supplementary answering affidavit.
5. Part B of the application is postponed sine die. Either party may, after close of
the supplementary pleadings, enrol Part B for hearing on reasonable notice to
the other.
6. The respondent shall pay the costs of Part A of this application, on scale B.
____________________________
WJ du Plessis
Judge of the High Court Gauteng Division,
Johannesburg
Date of hearing:
24 February 2026
Date of judgment:
26 February 2026
For the applicant:
F Bezuidenhout instructed by Venessa
Fernihough and associates
For the respondent:
D Mpofu SC, with him N Mokoena,
instructed by Eric Mabuza attorneys
A letter to L[...] and S[...]
26 February 2026
Johannesburg
Dear L[...] and S[...],
Your mom and dad recently came to court so that I could help them work out a plan
about where you will stay, and when, for the next few months. I listened carefully to
both of them, and I want to explain my decision to you so that you can understand
what was decided and why.
Firstly, both your mom and dad told the court how much they love you, and how they
both like spending time with you. Even if they are not getting along so well right now,
their love for you has not changed. Them not getting along so great at the moment is
not your fault – sometimes Moms and Dads fight because of adult things.
After listening to them, I decided that, for now, you will stay mostly with Mom. But
don't worry, you will still see your dad (or "Baba", as you call him) a lot.
On Tuesday mornings he will pick you up at Mom's place to take you to
school, and fetch you again after school until the evening, when you sleep at
mom's.
On Thursdays you will have a sleepover at his house. He will fetch you from
school on the Thursday, you will sleep over, and he will take you back to
school on the Friday. L[...], when you have therapy on a Thursday, he will take
you there.
On some weekends you will also sleep over at Dad's house. That means: One
weekend you will sleep at Mom's house, the next weekend at Dad's house.
That also means that in some weeks he will pick you up after school on a
Thursday, and you will be with him until the Sunday at 17h00.
Sometimes, when Mom or Dad travel, this might change a little, but they will talk to
each other and to you about that.
I tried to make a table about what your weeks may look like:
Monday
Tuesday Wednesday Thursday Friday Saturday Sunday
Mom Dad takes you
to school and
picks you up
after
Sleep at
Mom's
Mom Mom takes
you to school
Sleepover at
Dad
Mom Mom Mom
Mom Dad takes you
to school and
picks you up
after
Sleep at
Mom's
Dad
Mom Mom Mom
Mom Dad takes you
to school and
picks you up
after
Sleep at
Mom's
Mom Mom takes
you to school
Sleepover at
Dad
Dad Dad Dad
In the school holidays, you will spend half the time with Mom and half the time with
Dad.
It is important that you go to school every school day. No one may fetch you from
school in the middle of the day unless you feel sick, or both Mom and Dad say you
may go home early.
Later on, a special doctor, called a psychologist (it is such a big word!), will meet
you, Mom and Dad. Their job is to help the next judge understand what life is like for
you and what will be best for you. They are usually kind people, and you can talk to
them honestly about how you feel. Mom and Dad will not be angry with you if you
share your feelings honestly.
Mom and Dad will try their best to work together. If you are unsure about where you
will be on a certain day, you can ask them to show you on the calendar.
The reason why I decided this is to make sure that you know when you are with
Mom and when you are with Dad, until the psychologist (that big word again) and the
next judge help to make a longer‑term plan. The psychologist will help the next judge
in making that plan, and will tell the judge what you want.
My decision does not mean that I think your Mom or your Dad loves you more, or
that one of them is a better parent. It is only to give you clear routines and to help
you know when you are with Mom, and when you are with Dad. That will also help
Mom and Dad to fight a bit less. And hopefully, that will make you feel a bit safer.
With care,
Judge Elmien du Plessis