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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
Case Number: 2022-053873
In the matter between:
In the matter between:
L[…] L[…] L[…] Applicant
and
D[…] W[… ] B[…] Respondent
JUDGMENT
WENTZEL-THOMPSON J
[1] This application concerns the termination of the Respondent’s parental
responsibilities and rights in respect of the minor child. The relief sought is final
in effect and implicates the most profound interference with the parent -child
relationship recognised in our law. It must therefore be approached with
caution, restraint, and a proper appreciation of both its legal consequences and
its human significance.
[2] The Applicant’s case is that the Respondent has failed to maintain meaningful
contact with the child and has, by his conduct, effectively relinquished his
parental role. The Respondent disputes this and contends that his attempts to
maintain contact have been impeded by distance, logistical difficulty, and, at
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
_______________________
DATE SIGNATURE
times, the conduct of the Applicant. The central issue is thus not merely the
extent of contact, but the reason for its limitation.
[3] The matter must be determined within the framework of section 28(2) of the
Constitution, which renders the best interests of the child paramount, read
together with sections 7 and 9 of the Children’s Act 38 of 2005. These
provisions require a court to undertake a holistic evaluation of the child’s
circumstances, including the nature of the relationship with each parent, the
degree of commitment shown, and the likely effect of any proposed order.
[4] It is well- established that the termination of parental rights is a remedy of last
resort. Courts are slow to extinguish the legal bond between parent and child
absent compelling evidence that continued parental involvement would be
harmful to the child. The jurisprudence underscores that imperfect parenting,
strained relationships, or limited contact do not in themselves justify such
drastic relief.
[5] The Applicant relies heavily on the fact that the child resides in the United
Kingdom and that the Respondent’s contact has been sporadic. However, this
fact cannot be considered in isolation. The realities of international separation
inevitably affect the frequency and quality of contact and must be evaluated
contextually rather than mechanically.
[6] The Respondent’s version, which must be assessed in accordance with the
Plascon-Evans rule, is that he has made repeated attempts to communicate
with the child and to remain involved in her life. He attributes the limited
success of those efforts to practical constraints and to restrictions imposed by
the Applicant. This version is not inherently implausible and is supported by
documentary material in the form of communications between the parties.
[7] Applying the Plascon- Evans approach, the Respondent’s version cannot be
rejected on the papers. It follows that the Court must proceed on the basis that
rejected on the papers. It follows that the Court must proceed on the basis that
the Respondent has not abandoned the child, but has sought, albeit
imperfectly, to maintain a relationship under difficult circumstances.
[8] The absence of expert evidence is a significant deficiency in the Applicant’s
case. There is no report from the Family Advocate, no psychological
assessment, and no independent evaluation of the child’s best interests. In
matters of this nature, where the relief sought is both drastic and irreversible,
such evidence is ordinarily indispensable.
[9] The best interests enquiry requires the Court to consider not only the present
state of the relationship but also its potential for development. The evidence
does not suggest that the Respondent poses any risk to the child, nor that
continued contact would be harmful. In these circumstances, the preservation,
rather than the severance, of the parental relationship is generally to be
preferred.
[10] The relief sought by the Applicant is, in my view, disproportionate to the facts
established on the papers. While there may be difficulties in the current
arrangement, those difficulties are capable of being addressed by less intrusive
measures, such as the structuring of contact or the involvement of appropriate
professional services.
[11] Ultimately, the Applicant has not discharged the onus of demonstrating that it is
in the best interests of the child to terminate the Respondent’s parental
responsibilities and rights. The evidence falls short of establishing
abandonment, unfitness, or harm, and the disputes of fact must be resolved in
favour of the Respondent.
[12] In these circumstances, the application cannot succeed.
Order
1. The application is dismissed.
2. The Applicant is directed to pay the costs of the application.
_________________________
WENTZEL-THOMPSON J
JUDGE OF THE HIGH COURT
JOHANNESBURG
For the applicant: J.C. Borman
Instructed by: SKV Attorneys Inc.
For the respondent: Xavier van Niekerk
Instructed by: Van Heerden and Krugel Attorneys