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
GAUTENG DIVISION, PRETORIA.
CASE NO: 89128/2024
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED.
DATE: 23/02/26
SIGNATURE:
In the matter between:
R[...], D[...] Applicant
and
R[...], P[...] J[...] Respondent
JUDGMENT
COURTENAY AJ:
Introduction:
[1] E is four and a half years old. She lives with her mother. She visits her father
on alternate weekends. One of her parents believes she ha s been sexually violated.
The other believes the first parent has invented or imagined this violation, and is
teaching E to believe it happened. E herself has made statements – some
spontaneous, some in response to leading questions – that her father tou ched her
inappropriately. She has also, at other times, played happily with her father and
shown no fear of him. E cannot tell this Court what is true. She can only tell this
Court what she has come to believe is true – and in a case like this, that may no t be
the same thing.
[2] This Court has no expert evidence to resolve the dispute. No medical
examination was conducted when the applicant says she first became concerned,
nor in the sixteen months that followed. The South African Police Service was
notified only in late November 2025, after this urgent application was launched. What
the Court has instead are 490 pages of affidavits: allegations and denials, character
attacks and counter-attacks, each parent insisting the other is either a predator or a
liar. Not a single page contains an independent expert opinion. Not a single page
brings the Court closer to knowing what happened in the private, unwitnessed
moments of this family's life.
[3] Motion proceedings are not designed to adjudicate contested alleg ations of
sexual abuse or psychological manipulation. Those determinations require viva voce
evidence, cross -examination, and expert testimony. An urgent application
compresses time and forecloses the rigorous inquiry that allegations of this gravity
demand. Yet urgency has been invoked, and the Court must decide – not what
happened, but what happens next. Not whether the respondent is guilty or the
applicant is delusional, but where E sleeps tonight, and tomorrow night, and every
night until the truth can be properly investigated.
[4] This judgment makes provisional findings based on the evidence currently
before the Court. These findings are interim, not final, and subject to revision in light
of the forensic investigation that must now urgently proceed. T he Court does not
determine whether the respondent sexually abused E – that question requires expert
assessment. But the Court must determine, on the materials before it, what interim
assessment. But the Court must determine, on the materials before it, what interim
arrangement best protects E while that question is investigated. That de termination
requires assessing the credibility and conduct of both parents, not to assign blame,
but to identify which arrangement minimises harm to E in conditions of profound
evidentiary uncertainty. E cannot speak for herself in these proceedings. The C ourt
must speak for her.
Issues:
[5] The applicant seeks suspension of the respondent's contact with E,
alternatively supervised contact on a reduced schedule. She seeks the appointment
of a forensic social worker to investigate the allegations and requests the
involvement of the Office of the Family Advocate.
[6] The respondent seeks E's removal from the applicant's primary residence and
her placement in the temporary care of his sister -in-law, with both parents afforded
supervised contact. He seeks the appointment of a forensic psycholog ist to
investigate whether E has been sexually abused and, if so, by whom. He also
requests the involvement of the Office of the Family Advocate.
[7] During argument, certain points of convergence emerged:
[7.1] The applicant accepted that a psychologist, rather than a social worker,
is required to assess the allegations with the necessary rigour they deserve.
[7.2] The respondent consented to supervised contact – not as any
concession to the merits of the allegations, but as a strategic shield against
further accusations while the investigation unfolds.
[7.3] Both parties accept that forensic investigation is necessary and that the
Office of the Family Advocate should be involved.
[8] The principal issue is whether E should remain in the applicant's primary care,
subject to supervision and conditions, or be removed and placed in the temporary
care of the respondent's sister -in-law pending the forensic investigation. That
question determines where this child will live, with whom she will sleep, and under
whose influence she will remain while the investigation – which both parties now
accept as indispensable – unfolds. It is not a simple choice between two competing
parents. It requires an assessment of whether the evidence establishes risk to E of
such immediacy and severity that removal – the most drastic intervention available to
this Court – is justified, or whether the concerns raised by both parties can be
this Court – is justified, or whether the concerns raised by both parties can be
managed through supervision, therapeutic intervention, strict parental conditions,
and expert oversight while E remains in the stability of her current primary residence.
It is the most consequential question before this Court.
The Facts:
Background:
[9] E is four and a half years old. Her parents' marriage collapsed when she was
not yet three. On 18 July 2024, they signed a settlement agreement. The applicant
was granted primary residence. The respondent was granted contact on alternate
weekends – Saturday from 09h00 to 17h00, Sunday from 08h00 to 17h00 – as well
as Wednesday afternoons and telephoni c contact on Tuesdays. It was incorporated
into the decree of divorce on 18 November 2024.
[10] Four days after signing that agreement, the applicant contacted a therapist.
On 23 July 2024, she completed an intake form for Ms Rademeyer. She wrote: " I am
concerned that someone might be touching her. I am aware of exploring but she is
showing more interest in exploring in weird ways after a visit ". Under the heading
"What are your major concerns about your child's behaviour? " she wrote: " Only that
she 'plays' with herself more often and do strange things after visit or contact with
dad". The respondent's counsel emphasised during argument the timing.
The Applicant's Account:
[11] The applicant says the marriage was troubled. She alleges that the
respondent would wake E late at night, enter her room at unreasonable hours, and
sleep beside her until early morning. The respondent explains that he was tending to
her needs. The applicant says he watched pornography while the family slept and
contends he confessed r epeatedly to a heightened sexual appetite and compulsive
sexual behaviour, though she admits she has no proof of a pornography addiction.
The respondent denies all of this.
[12] In March 2024, the respondent left the matrimonial home. By mid -2024, the
applicant says, E's behaviour began to concern her. E became visibly distressed
after returning from visits with her father, in particular.
[13] Ms Rademeyer's therapeutic engagement with E ran from 22 July to 15
October 2024. The respondent participated. He w as never told the reason for the
referral. Ms Rademeyer's feedback found nothing of concern. The applicant
terminated the sessions in October 2024, citing the apparent manipulation of the
process by the respondent.
[14] On 17 August 2024, the applicant per mitted E to sleep over at the
respondent's residence. She wanted to celebrate her birthday, she says, and it was a
safer and more practical option. This was one month after she had engaged a
therapist to assess whether someone was inappropriately touching E.
[15] In December 2024, the applicant sought a second opinion. The applicant
consulted Ms Boonzaaier, a social worker, and repeated her concerns. Ms
Boonzaaier advised her that –
[15.1] without a disclosure, it would be difficult to say whether abuse h ad
occurred.
[15.2] if E said something concerning, she should listen but not interrogate.
The questions might contaminate what the child was trying to communicate.
[15.3] there were, Ms Boonzaaier noted, alternative explanations for
sexualized behaviour in young children.
[16] The applicant responded in writing. She acknowledged the advice. She wrote:
"I understand that there are alternative hypotheses, the only thing that doesn't add
up with them is that the normal child exploration only takes place when she was with
her dad, not at any other times ". The applicant acknowledged that after E had a bad
dream, she had asked E who was touching her, naming specific people. She wrote:
"I understand that was wrong, and I should have handled it differently".
[17] On 5 March 2025, the applicant and the respondent had sexual intercourse.
This is not in dispute. The applicant says it was mutual and spontaneous. There was
no agreement or expectation that he would stay over. There was no ongoing
relationship.
[18] In August 2025, the applicant says, E began having bad dreams. That she
would wake and say the respondent was touching her vagina. On multiple occasions
after E returned from the respondent's care, the applicant observed visible redness
in E's genital area. E told her it was caused by her father.
[19] In mid-October 2025, the applicant says, the respondent invited her into his
home. He told her he was struggling with inappropriate thoughts and problems with
self-control. Shortly after this conversation, she says, E began to make disclosures.
[20] On 15 October 2025, E told the applicant: " Pappa het my nunu ge -touch".
This occurred while they attended the respondent's church life group. The applicant
says she observed a marked change in E's behaviour relati ng to her own genital
area.
[21] On 22 October 2025, E told the applicant that the respondent had touched her
vagina while they sat together on the couch. E was crying and said her vagina hurt
because it was red.
[22] On 8 November 2025, E said the respon dent had asked her to lie on the bed
in his room while they were playing tea party in the living room. He would touch for
one minute, she said. He promised her new toys if she agreed. She said she did. It is
not in dispute that the respondent had purchased her gifts on that date.
[23] Contact continued. No report was made to the police. No doctor was
consulted. No urgent application was launched.
[24] On 10 November 2025, the applicant recorded a conversation with E, asking
her recount what had happened two days earlier. The transcript shows the applicant
asking:
[24.1] "Wat maak hy? Verduidelik net vir my mooi."
[24.2] "Wat het gebeur? Hoekom het pappa vir jou mooi goed gegee?"
[24.3] "Nee jy het nie, jy praat stukkies en dan maak jy 'n grappie daarvan. D it
is nie 'n grappie nie. Praat mooi met mamma dan kan ons klaar kry en speel."
[24.4] "Jy het nou die dag vir mamma vertel, so vertel net weer vir my wat het
gebeur daar."
[25] On 9 November 2025, E was scheduled to see her father. The applicant told
him E was not up to it. The respondent accepted. He left town shortly afterward and
missed the midweek contact. The applicant launched this application on 19
November 2025. Between 24 and 27 November 2025 – after the application had
been launched – she reported the allegations to the South African Police Service.
[26] When the respondent arranged for E to be assessed at the Teddy Bear Clinic
without consulting the applicant or her attorneys, the applicant declined to participate.
She says she was taken by surpr ise. In her replying affidavit, she annexes a clean
urine test result.
The Respondent’s Account:
[27] The respondent denies the allegations. He provides detailed accounts of what
he and E did on the days abuse is alleged. Where the applicant says abuse occurred
during a tea party on 8 November, he describes the day's activities: what they played,
what they ate, when they rested. Where the applicant says he touched E on the
couch on 22 October, he recounts the afternoon. The denials are specific, not
general.
[28] The respondent says the applicant is mentally and emotionally compromised.
She uses THC daily, he alleges. This has impaired her cognitive functioning, her
memory, her emotional regulation. She is addicted to cannabis -based substances.
The use has triggered paranoid delusions and heightened anxiety. She is dependent
on sleeping pills and tranquilizers. Her mental health has deteriorated. He provides
no expert evidence for any of this.
[29] He relays an incident: the applicant blamed him for a sexu al dream she had
about him. His nieces, he says, told him the applicant confided in them that she was
sexually abused by her father as a child. He annexes affidavits from the nieces. They
are unsigned.
[30] The respondent advances an alternative explanatio n. The applicant, he says,
runs a cannabis business from her home. There is a walk -in store, a beauty salon, a
manufacturing facility. She employs at least ten people. Two are men. She sells
products containing illegal substances, he alleges. He names seve ral individuals he
describes as her "paramours." They have access to the home. If abuse occurred, he
suggests, it could have been any of them. He provides no evidence linking any of
these individuals to E or to the alleged conduct. This theory sits uneasil y beside his
primary position: that no abuse occurred at all.
[31] The respondent says he noticed E scratching her vagina on several occasions.
He raised this with the applicant. The applicant dismissed it. It was a woman's issue,
she said. He includes inf ormation about medical causes of vaginal irritation in young
children: urinary tract infections, yeast infections, eczema, poor hygiene. These, he
suggests, explain any redness the applicant observed.
[32] The respondent says the applicant never raised con cerns about sexual abuse
before this application (she did, on a single occasion, to which he replied “ dis reg,
gaan groot. Ek hoop jy kom agter die kap van die byl ”). He had no knowledge of why
Ms Rademeyer was engaged. Nothing was done after the settlement agreement was
signed in July 2024. The parties remained cordial throughout 2024 and into 2025. He
annexes communications showing civil exchanges.
[33] When he received this application, the respondent arranged for E to be
assessed at the Teddy Bear Clinic. He did not consult the applicant or her attorneys.
When the clinic contacted the applicant, she refused to participate.
E’s Current Status:
[34] E has not seen her father since 08 November 2025. According to the
applicant, she has only asked after him once.
Discussion:
[35] A child's best interests are of paramount importance in every matter
concerning the child. 1 The principle is emphatic and far -reaching. 2 Paramountcy
requires close, individualised examina tion of E's precise circumstances – not the
application of pre -determined formulas for the sake of certainty. 3 The determination
of a child’s best interests involves what has been described as a structured value
judgment: a finding of mixed fact and opinio n in which the court acquires an overall
impression and assesses the circumstances in a balanced fashion.4 This Court is not
looking for the perfect parent. 5 It is looking for the least detrimental alternative for
safeguarding E's growth and development.6
[36] This Court cannot determine, on the papers before it, whether the respondent
sexually abused E. That determination requires forensic assessment by
professionals with expertise in interviewing young children, evaluating developmental
capacity, and dist inguishing organic memory from external suggestion. Nor can this
Court determine whether the applicant has deliberately or unconsciously influenced
E's statements. The assessment of whether a parent's anxiety, trauma history, or
psychological state has sha ped their perception of events requires equally
specialised evaluation. Both parties accept that expert assessment is necessary.
The question this Court must answer is what interim arrangement best protects E
while that assessment proceeds.
[37] While this Court cannot resolve the contested al legations, it can and must
assess what the parties' own conduct – undisputed and admitted – reveals about risk,
judgment, and capacity. Where a party's actions are fundamentally inconsistent with
their professed beliefs, that inconsistency is not a dispute d fact requiring viva voce
1 Sec. 28(2) of the Constitution.
1 Sec. 28(2) of the Constitution.
2 S v M (Centre for Child Law as Amicus Curiae) [2007] ZACC 18 at [25]
3 Id at [24].
4 Cunningham v Pretorius [2008] ZAGPHC 258 at [9].
5 ZDE v CE [2024] ZASCA 159 at [16].
6 Ibid.
evidence. It is an objective reality that informs the Court's assessment of what
arrangement serves E's interests.
[38] The applicant's conduct over eighteen months raises serious concerns. On 18
July 2024, she signed a settlement agreement granting the respondent unsupervised
contact. Four days later, she told a therapist she was concerned someone might be
touching E. The language in the intake form – "more interest in exploring, after a
visit" – suggests observations made over t ime, not concerns that arose in four days.
On 17 August 2024, one month after engaging the therapist to assess whether E
was being inappropriately touched, she permitted E to sleep over at the respondent's
residence so she could celebrate her birthday. On 5 March 2025, eight months after
first expressing concern, she had sexual intercourse with the respondent. In August
and October 2025, E made disclosures. Contact continued. No urgent court order
was sought. No police report was made. No medical examination was conducted. On
10 November 2025, nine months after being advised not to interrogate E, the
applicant recorded a conversation in which she repeatedly pressed E to recount
what had happened. On 19 November 2025, she launched this application. Between
24 and 27 November —after the application had been filed —she reported the
allegations to the South African Police Service. Sixteen months had passed since
she first expressed concern.
[39] This conduct is difficult to reconcile with genuine, sustained belief that E was
being sexually abused. A parent who believes their child is in danger does not permit
overnight stays for social convenience. A parent who believes their former partner is
abusing their child does not engage in intimate sexual relations with tha t person. A
parent who believes abuse is ongoing does not allow contact to continue week after
week without seeking urgent intervention. The respondent's counsel emphasised
week without seeking urgent intervention. The respondent's counsel emphasised
these inconsistencies during argument, and rightly so. They are serious. They
undermine the reliability of the applicant's account. They raise questions about
whether her concern is grounded in reality or in something else – anxiety,
confirmation bias, escalating suspicion detached from evidence.
[40] But the question before this Court is not whether the applicant's allegations
are credible. The question is whether the evidence establishes risk to E of such
immediacy and severity that removal from her primary caregiver – the most drastic
intervention available to this Court – is justified.7 Removal of a child from the primary
caregiver requires substantial justification. 8 Even where legitimate concerns about a
parent exist, removal is not undertaken lightly. The principles underlying Chapter 9 of
the Children's Act 9 – that removal is a l ast resort, that family preservation should be
prioritised where safe to do so, and that removal requires proper assessment of
alternatives – inform this Court's discretion even in proceedings that do not formally
invoke that Chapter.10
[41] The applicant is not accused of abusing E. She is accused of poor judgment,
of contaminating E's disclosures, and – by the respondent – of being mentally and
emotionally compromised to the point where she cannot reliably perceive reality or
refrain from unconsciously in fluencing E. The respondent does not allege deliberate
fabrication or malicious manipulation. His case is that the applicant's judgment is
impaired by substance abuse, anxiety, or paranoid delusions, and that this
impairment has caused her to misperceive events or unconsciously shape E's beliefs.
The respondent provides no expert evidence for these allegations. He annexes
unsigned affidavits. He speculates about paramours and employees without
evidence linking them to E or to the alleged conduct. His altern ative perpetrator
theory sits uneasily beside his primary position that no abuse occurred at all. Claims
of mental impairment or psychological dysfunction require expert assessment by
professionals with the necessary knowledge and training. 11 Lay opinion, however
sincerely held, cannot substitute for professional evaluation in matters of such
complexity and consequence.
[42] The distinction between incapacity and malice matters. Deliberate
manipulation of a child for litigation advantage – fabricating alleg ations, coaching
manipulation of a child for litigation advantage – fabricating alleg ations, coaching
disclosures, weaponizing a child's statements – would raise concerns of such
7 See, M v M (Case No.: 57215/2017) (unreported). Available on request.
8 See, AK v MCK [2009] ZAECPEHC 35.
9 Children’s Act 38 of 2005 (Children’s Act).
10 See, generally, C v Department of Health and Social Development, Gauteng [2012] ZACC 1.
11 M (n 5) at [100].
severity that removal might be justified even absent expert corroboration. 12 But
allegations of psychological struggle describe a parent who is anxious, confused, or
mistaken rather than malicious. Such struggles can be managed through therapeutic
intervention, supervision, and court -imposed boundaries. 13 The respondent's own
framing of the applicant's conduct as incapacity rather than intent undermines, rather
than supports, the case for removal.
[43] Where a parent's own conduct (not contested allegations about their mental
state, but their own admitted actions) raises questions about judgment and capacity,
the court is entitled to draw inferences from that conduct. 14 The applicant's conduct
does raise such questions. But the test is not whether this parent is flawless or
whether her judgment has been perfect; the test is whether her conduct
demonstrates impairment so severe that removal is necessary to protect E, or
whether the concerns can be managed through supervision, conditions, and expert
oversight while E remains in the stability of her current primary residence.
[44] A parent's emotional or mental health challenges —even if proven—are not an
automatic bar to care. Wh at matters is whether the parent is managing the condition
and functioning in the parental role. 15 Many parents provide adequate care despite
anxiety, trauma histories, or psychological difficulties. The question is adequate
functioning, not perfection. 16 Here, there is no expert evidence that the applicant is
unable to function in her parental role. The respondent raised no issues that gave
him pause for thought whilst he exercised contact; his engagements were described
by him as engaging, fun, and loving . Evidence of poor judgment exists – the
sleepover, the sexual encounter, the recording made despite professional advice.
But poor judgment in discrete instances is not the same as incapacity to provide care
under conditions designed to prevent further contamination.
under conditions designed to prevent further contamination.
12 See, generally, Mpofu v Minister of Justice and Constitutional Development [2013] ZACC 15 at [21]
where the Constitutional Court confirmed that as t he upper guardian, a flexible approach must be
followed by the High Court.
13 See, generally, P v P [2007] ZASCA 47.
14 See, National Director of Public Prosecutions v Zuma 2009 (2) SA 277 (SCA) at [26]. See also,
Buffalo Freight Systems (Pty) Ltd v Crestleigh Trading (Pty) Ltd [2010] ZASCA 66 at [19].
15 P (n 10) at [23].
16 Ibid.
[45] E has been in the applicant's exclusive care since 9 November 2025, when
contact with the respondent ceased. There is no evidence before this Court
regarding E's state during the intervening month. Prior to the cessation of contact,
the ap plicant reports —and the respondent does not dispute —that E's teachers
indicated she was doing well at school. The absence of evidence of deterioration in
the applicant's care since contact ceased does not prove E is thriving. But neither
does it support the inference that she is suffering immediate, demonstrable harm
requiring emergency removal.
[46] Removal would cause E immedi ate and certain harm. She is four and a half
years old. Her mother is her primary attachment figure. She has lived with her
mother continuously since March 2024. Separating a young child from her primary
caregiver causes attachment disruption, confusion, a nd distress. E may interpret
removal as punishment for her disclosures – whether those disclosures reflect
genuine experience, external suggestion, or some combination of both. If the
allegations are true, removal places E with a family member loyal to the respondent,
potentially silencing her or reinforcing the message that disclosure leads to loss. If
the allegations are false but believed by E due to maternal influence, removal may
reinforce E's belief that her mother was right to fear the respondent, co mpounding
rather than remedying any alienation.
[47] The respondent seeks E's placement with his sister -in-law. LR is not a
stranger to E, but neither is she neutral. As the respondent's family member, she has
deposed to an affidavit supporting his applica tion. Placement with her advantages
the respondent and does not constitute neutral temporary safe care in any
meaningful sense. Removing a child from her primary caregiver and placing her with
a family member aligned with the other parent is not a neutral act. It is a profound
shift in E's lived reality, carrying risks of its own.
shift in E's lived reality, carrying risks of its own.
[48] The least detrimental alternative is not removal. It is the maintenance of E's
current primary residence, subject to conditions that protect her from further
contamination an d preserve the integrity of the forensic investigation. 17 The
17 See, sec. 7 of the Children’s Act.
respondent's contact will be supervised. Given the parties' financial constraints,
supervision will be undertaken by a responsible adult family member chosen by the
respondent. This is not ideal. Family supervision lacks the neutrality and professional
oversight that formal supervision by a registered social worker would provide. But
perfect supervision is not always financially attainable, and the evidentiary basis for
the allegations – weakened by the applicant's own conduct over eighteen months –
does not justify the expense of professional supervision at this stage. The
psychologist conducting the forensic assessment will monitor the contact
arrangements and is empowered to recommend professio nal supervision if the
evidence gathered during the assessment reveals that family supervision is
inadequate. Supervision, even imperfect supervision, protects E if the allegations are
true and preserves her relationship with her father if they are false. The respondent
has consented to supervised contact – strategically, not as a concession to the
merits, but the consent narrows the contested terrain.
[49] Both parents will be prohibited from discussing the allegati ons with E. Both
will be prohibited from interrogating her about contact with the other parent. These
are not mere aspirational directives. They are court orders, breach of which
constitutes contempt.
[50] A forensic psychologist will be appointed immediat ely. The psychologist will
have the authority to make interim recommendations, including recommendations
regarding living arrangements, if the evidence gathered during the assessment
reveals risks that require urgent intervention. This is not a final deter mination. It is a
provisional order, responsive to emerging evidence. If the psychologist finds that E is
being harmed in the applicant's care – if contamination continues despite court
orders, if the applicant's judgment is so impaired that supervision an d conditions are
orders, if the applicant's judgment is so impaired that supervision an d conditions are
insufficient – the psychologist can (and must) recommend removal, and this Court
can act on that recommendation. The order is not locked in. It is adaptive.
[51] E will be placed in therapeutic care with a qualified play therapist. The
therapist's role is not forensic. It is to provide E with a safe space to process her
experiences, whatever they are, without the pressure of satisfying a parent's need for
confirmation or an investigator's need for answers. The Office of the Family
Advocate will also investigate and assess systemic factors relevant to E’s wellbeing.
The Family Advocate's investigation will not duplicate the psychologist's forensic
work. It will provide independent verification and systemic context.
[52] This arrangement prote cts E. It protects her from ongoing abuse if the
allegations are true, because the respondent will have no unsupervised access to
her. It protects her from ongoing contamination if the allegations are false or
uncertain, because the applicant is bound by court order not to discuss them with her
and because therapeutic and expert oversight create accountability. It protects the
integrity of the investigation by ensuring that the psychologist can assess E in
conditions where external influence, to the extent it can be minimised, has been
minimised. And it protects E from the immediate, certain harm of removal from her
primary caregiver.
[53] Courts must be cautious about claims of parental alienation or psychological
manipulation. Such claims require expert assessment by professionals with the
necessary knowledge, training, and skill. 18 The concept remains controversial in
judicial, legal, and psychological circles. 19 Lay litigants, however convinced of their
perceptions, are not qualified to diagnose parenta l alienation or psychological
impairment. The same caution applies to allegations of sexual abuse: neither set of
allegations can be accepted without expert corroboration, and neither can be
dismissed without proper investigation.
[54] If this Court were to remove E from the applicant's care based primarily on
unsubstantiated allegations of mental impairment and substance abuse, it would set
a troubling precedent. Mothers who allege sexual abuse – even if their allegations
are ultimately unproven – would face the prospect of losing primary residence based
on responsive allegations of mental illness advanced without expert support. That
outcome would deter protective parents from coming forward. It would reward
outcome would deter protective parents from coming forward. It would reward
litigation strategies t hat deploy psychiatric labels as weapons. It would penalise
disclosure. This judgment cannot contribute to that outcome.
18 M (above n 5) at [83].
19 Id at [82]
[55] The applicant's conduct over eighteen months has not been exemplary. Her
judgment has been poor. Her credibility is damaged. But t hose failures do not prove
the respondent is safe. They do not prove E is in danger in the applicant's care. And
they do not meet the threshold for the drastic step of removal. What they prove is
that this case requires expert assessment – urgently, rigoro usly, and under
conditions that protect both E's welfare and the integrity of the investigation. Those
conditions can be established without removing E from her mother's care.
[56] E cannot speak for herself in these proceedings. But her interests can be
identified and protected. Her interest is not in vindicating one parent's version of
events over the other. It is in safety, in stability, in being allowed to be a child while
the adults in her life – with the assistance of professionals – determine what ha s
happened and what must happen next. The interim arrangement this Court orders
today serves that interest. It is not perfect. No arrangement in circumstances like
these can be. But it is the least detrimental alternative available on the evidence
before this Court.
Conclusion:
[57] E did not create this conflict. She did not ask to be caught between two
parents whose versions of her life are irreconcilable. She is four and a half years old.
She cannot advocate fo r herself. She cannot choose which parent to believe or
which reality to inhabit. This Court must make those choices for her, knowing that the
evidence is incomplete, the allegations are unproven, and the truth may not emerge
for months.
[58] The arrangement this Court has ordered is not perfect. It will not eliminate the
uncertainty that saturates this case. It will not resolve, today, whether E has been
harmed by her father or by her mother's escalating anxiety. But it will protect E from
the immediate, c ertain trauma of removal from her primary caregiver while ensuring
the immediate, c ertain trauma of removal from her primary caregiver while ensuring
that the investigation proceeds under conditions that preserve its integrity. It will
allow both parents supervised contact with their daughter. It will impose boundaries
that neither paren t may cross. And it will empower professionals – psychologists,
therapists, the Family Advocate – to assess, to intervene, and to recommend
adjustments if the evidence demands it. This is the least detrimental alternative
available on the evidence before t his Court. It serves E's interests. It is what the law
requires.
[59] Courts confronted with allegations of this gravity must act, even when
certainty is absent. They must weigh harms, assess risks, and choose the path that
best protects the child while th e truth is pursued. This Court has done so. The order
that follows reflects that choice.
Order:
[60] In the circumstances, the following order is made:
[60.1] The forms and service provided for in the Rules of Court are dispensed
with, in respect of both the application and counterapplication, and the matter
is considered as an urgent application in terms of Rule 6(12) of the Uniform
Rules of Court.
[60.2] The respondent’s late filing of his answering affidavit and
counterapplication is condoned and the affidavit is accepted into evidence.
[60.3] Ms Claire O'Mahony, a psychologist in private practice is appointed as
the forensic expert (the expert) to conduct an urgent full forensic investigation
into:
[60.3.1] whether E[...] R[...] R[...], born on 22 June 2021 ( E[...]), has
been sexually abused and, if so, by whom.
[60.3.2] whether either parent’s mental health, substance use, or
psychological state poses a risk to E[...]’s welfare or impairs their
capacity to exercise parental responsibilities and rights.
[60.3.3] any other factors relevant to E[...]’s safety, wellbeing, and best
interests.
[60.4] The expert shall, on the basis of her investigation, make
recommendations regarding the allocation of parental responsibilities and
rights in respect of E[...], including primary residence and contact.
[60.5] The expert is empowered to:
[60.5.1] Investigate all disputes in respect of the parties' exercise of
their parental responsibilities and rights in such manner as determined
by the expert in her sole discretion.
[60.5.2] Determine the protocol for all communications, interviews, and
sessions, including who shall or may be involved in same.
[60.5.3] Communicate in writing with either party, provided that such
communication is copied to the other party simultaneously.
[60.5.4] Confer individually with the parties and any other person
involved with the parties and/or with the child, including b ut not limited
to siblings, step -parents, step -siblings, extended family members,
friends, permanent life partners, household members, school and
educational personnel, care providers, therapists, and healthcare
providers.
[60.5.5] Consult with and obtain any information and/or documentation
from the parties' legal representatives and any professional involved in
the education, care, treatment, assessment, and/or therapy of either of
the parties or of the child.
[60.5.6] Engage the services of other profess ionals to assist in making
recommendations, and the parties shall be liable in equal shares for
the costs of such professionals.
[60.5.7] Direct that the parties undergo assessments of their mental
functioning, including psychological and/or psychiatric evaluation, and
direct drug testing as and when required, nominating the method of
testing and the timeframe for the testing to be completed.
[60.5.8] Meet and/or confer with any person whom the expert considers
relevant at reasonable times and places with out either party being
present.
[60.5.9] Obtain such information and/or documentation as the expert
may require to perform her mandate.
[60.6] Both parties shall be liable equally for the costs of the expert and any
other person(s) appointed by her.
[60.7] The expert shall, within 7 (seven) days of the date of this order,
nominate a qualified play therapist in Pretoria to provide therapeutic support
nominate a qualified play therapist in Pretoria to provide therapeutic support
to E[...]. The therapist's role shall not be forensic. The therapist shall provide
the child with a safe space to process her experiences without the pressure of
satisfying a parent's need for confirmation or an investigator's need for
answers. Both parties shall be liable equally for the costs of the therapist.
[60.8] In the event that the expert, during the cour se of her investigation,
reasonably suspects that E[...] is being sexually abused, alternatively being
coached to make false disclosures, alternatively that E[...] is suffering harm in
her current living arrangements, the expert shall be entitled to immediat ely
issue an interim report recommending a change in residence, contact,
supervision, or any other issue, aspect, or matter as the expert may deem
appropriate. Upon receipt of such interim report, either party may approach
this Court or any other court wit h appropriate jurisdiction for a variation of this
order.
[60.9] Pending the finalisation of the expert's report:
[60.9.1] E[...] shall remain in the primary residence of the applicant.
[60.9.2] The respondent shall exercise contact with E[...] as follows:
[60.9.2.1] Every weekend, alternating between Saturday and
Sunday, from 12h00 to 16h00. (For example: if contact occurs
on a Saturday in one week, it shall occur on a Sunday in the
following week.)
[60.9.2.2] Every Wednesday from 16h00 to 18h00.
[60. 9. 2.3] Daily telephonic contact on those days where the
respondent does not have physical contact with E[...], at a time
agreed between the parties, failing which between 18h30 and
19h00.
[60.9.3] The respondent's contact with E[...] shall be supervised by a
responsible adult family member nominated by the respondent. The
respondent shall notify the applicant in writing of the identity of the
supervising family member within 48 hours of the date of this order.
Contact shall take place at the applicant's residen ce unless otherwise
agreed between the parties in writing or directed by the expert.
[60.9.4] The supervising family member shall not discuss the
[60.9.4] The supervising family member shall not discuss the
allegations or the litigation with E[...]. The supervising family member
shall ensure that the respondent does not discuss the allegations with
E[...] or interrogate E[...] about events, disclosures, or contact with the
applicant. A copy of this order must be brought to the attention of the
supervising family member.
[60.10] Both parties are prohibited from:
[60.10.1] Discussing the allegations of sexual abuse or any related
matters with E[...].
[60.10.2] Interrogating E[...] child about contact with the other parent,
about events that may have occurred during such contact, or about any
disclosures E[...] may have made.
[60.10.3] Making disparaging remarks about the other parent in E[...]’s
presence or hearing.
[60.10.4] Allowing any other person to discuss the allegations with E[...]
or interrogate E[...] in their presence.
[60.12] The Office of the Family Advocate is requ ested to investigate the best
interests of E[...] and the allocation of parental responsibilities and rights on
receipt of the report(s) of the expert and to make recommendations in relation
thereto, including the child's place of primary residence.
[60.13] In the event of Ms Claire O'Mahony being unable to accept the
appointment as the expert, the Chairperson of the Pretoria Soci ety of
Advocates shall urgently nominate an appropriately qualified expert to perform
the investigation referred to in paragraph 3, which nomination shall take place
within 10 (ten) days of the date of this order.
[60.14] Upon receipt of the expert's repor t (whether interim or final) and/or the
Family Advocate's report, the parties shall be permitted to supplement their
papers within 15 (fifteen) days of the date of receipt of the report.
[60.15] The costs of the application and counterapplication are reser ved for
determination during Part B.
COURTENAY AJ
JUDGE OF THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION
Delivered: This judgment is handed down electronically by uploading it to the
electronic file of this matter on Caselines.
For the applicant: Adv L van der Westhuizen
Instructed by: Hills Inc.
For the respondent: Adv L Segal SC
Instructed by: Jordaan Attorneys Inc.
Date of hearing: 05 December 2025.
Date of judgment: 11 December 2025.
Redated: 23 February 2026