SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Not reportable
Case Number: 2025 - 151339
In the matter between:
D.R. Applicant
and
N.M. First Respondent
R.L. Second Respondent
Coram: Greig AJ
Heard: 13 May 2026
Delivered: 22 May 2026
Summary: Children — minor child — curator ad litem — appointment of —
when appropriate —no conflict between child and sole parent established —
risk of conflict outweighed by possible effect of appointment on children —
Urgency — self-created urgency —nonetheless necessary to consider whether
granting urgent relief claimed is in child’s best interests.
ORDER
(a) The application is struck from the roll with costs including the costs of
counsel payable on Scale C;
(b) The applicant may, if so advised and after:
(i) compliance with practice directive 36B(6);
(ii) filing a report from the Family Advocate as to the desirability of, and
need for, the appointment of a curator ad litem,
re-enrol the application for the same or modified relief on supplemented
affidavits and an appropriate timetable for filing further papers.
JUDGEMENT
Greig AJ
INTRODUCTION
[1] This is an application brought on an urgent basis seeking the appointment of
a curator ad litem to safeguard the interests of [L],1 a minor child who is
four years of age, pending the trial of an action in which the applicant, Mr R,
seeks joint care and co -guardianship of [L] as well as contact with [L] and
his sister, [W]. Mr R does not hold parental responsibilities and rights in
respect of [L]. His standing in these proceedings derives solely from section
1 The parties names have been anonymised.
23(1) of the Children's Act 2 (‘the Children's Act’), in terms of which he has
been declared an interested person.
[2] The first respondent, Mr M , is [L’s] biological father and sole holder of
parental responsibilities and rights in respect of [L]. The second respondent,
Mr L, is the former spouse of Mr M and joint parent of [W], [L’s] older half-
sibling. Mr M is presently receiving in -patient treatment at a drug
rehabilitation clinic and is expected to be discharged in June 2026. During
his absence, [L] has been residing primarily with Mr L , an arrangement
endorsed by Francis J in case management directions issued on 8 April
2026.
[3] The present application was launched on the evening of 7 May 2026 — two
days after the refusal of Mr R 's application for leave to appeal an interim
care and contact order dated 2 December 2025 ( ‘the December order ’), and
five days after he withdrew a related application for the suspension of that
order pending appeal.
[4] At the outset of the hearing the parties raised differing contentions about
whether the proceedings should be held in camera. In canvassing those
contentions with the parties it became evident that Mr R did not object to
proceedings being held in camera, and accordingly the hearing proceeded on
that basis.
[5] The central questions for determination are: first, whether Mr R has
established sufficient urgency to justify a departure from the ordinary rules
of court; second, whether, on the papers, the urgent appointment of a curator
ad litem is appropriate and in [L’s] best interests; and, third, what costs
order is appropriate. For the reasons that follow, I am not persuaded as to the
2 Children's Act 38 of 2005
urgency of this matter or that the appointment of a curator ad litem is
warranted at this stage, and the application falls to be struck from the roll.
RELIEF CLAIMED IN THIS APPLICATION
[6] In summary, the applicant seeks the following urgent relief, including:
(c) The appointment of an advocate as curator ad litem to represent [L]
(prayer 2);
(d) An order that the curator investigate and make recommendations and
report to the Court , as well as prepare a final report for the trial court at
least six weeks prior to the trial date (prayer 3);
(e) An order directing the curator to investigate, inter alia , whether [L]
should undergo further assessments regarding care and contact pending
trial; what contact arrangements should pertain between [L] and the
applicant pending the trial; what proposals she has regarding [L’s]
welfare generally and future care and guardianship arrangements
pending the trial; and what safeguards should be in place regarding Mr
M’s care of [L] once he is released from the rehabilitation clinic where
he is presently (prayer 4);
(f) The granting of various powers to the curator, including:
(i) to confer with and obtain reports from any medical and mental health
professionals who have treated or assessed [L] or Mr M ; to confer
with [L’s] teachers and any collateral persons she deems relevant;
(ii) ‘to represent the minor child whenever there is litigation between
[the] Applicant and the First Respondent which involves or affects
[the] minor child, and to represent the minor child at the trial’;
(iii) to determine [L’s] best interests ‘from time to time ’ regarding
contact arrangements; to engage with Mr M’s mental health
professionals at L[...] M[...] Clinic or elsewhere; to have access to
‘any documentation or records that directly or indirectly pertain to
the minor child's best interests’;
(iv) to appoint a professional, including a social worker, to ‘oversee the
situation’ at Mr [L’s] home where [L] presently resides, ‘by visiting
the home, including the right to require such person to sleep over at
the home for observation purposes’;
(v) That the curator file her first report on or before 17 July 2026, with
the power to file earlier reports should she deem this necessary
(prayer 7); and
(g) That the applicant and Mr M bear the costs of the curator in equal shares
(prayer 8).
[7] The breadth of the powers sought, encompassing determination of the minor
child’s best interests, oversight of parties’ medical treatment, access to all
records, and the right to have a professional sleep over in the respondents’
home, is a matter to which I return below.
BACKGROUND
[8] [W] was born in October 2018 by surrogacy during the course of the
marriage between Mr M and the second respondent, Mr L. Their marriage
terminated by divorce on 13 November 2020.
[9] [L] was born, also by means of surrogacy, during the course of a romantic
relationship between the applicant, Mr R , and the first respondent, Mr M ,
which commenced during August 2020 and culminated in their marriage on
25 April 2023. [L] has just turned four years of age.
[10] According to Mr R, Mr M from early in their relationship struggled with
addiction to various substances and became depressed. During such periods,
Mr R says, he was called upon to play the primary parenting role in relation
to [L].
[11] On 9 February 2024 Mr M left the common home and moved in with his
mother, Ms AM. Since then, Mr R avers, he has had to fight to exercise
meaningful contact with the children.
Brief litigation history to date
[12] Mr R issued summons on 29 August 2025 claiming, in relation to [L], joint
care and co-guardianship with Mr M, a declaration that he is a co -holder of
full parental responsibilities and rights, and joint residency, alternatively
contact on a rotational basis with equal sharing of school holidays.
[13] On 2 December 2025 a hearing was held before Francis J to determine
inter alia interim care and contact pending the action.
[14] By order dated 2 December 2025 (‘the December order’) (the reasons for
which were delivered later on 11 February 2026), Francis J imposed an
interim contact regime pending the action and directed Mr R to cooperate
with Mr Altman's ongoing assessment. The interim contact regime reduced
Mr R’s contact under the previous ‘6:8 arrangement’ (six day/nights on a 14
day cycle).
[15] On 19 January 2026 Mr R brought an application in terms of section 18(2)
read with section 18(3) of the Superior Courts Act 10 of 2013 for the
suspension, pending appeal, of the December order.
[16] An application was later also brought for the recusal of Francis J based on
alleged deficiencies in the reasons for the December order given in his
judgment of 11 February 2026. The recusal application was heard on 25
February 2026 and dismissed on 3 March 2026.
[17] On 10 March 2026, after receiving information that Mr M was using drugs,
Mr R's attorneys demanded that Mr M submit to drug testing. The demand
was not heeded , prompting Mr R to launch an urgent application that
afternoon for hearing the following day. By evening Mr M’s attorneys had
acceded to the testing sought.
[18] When the matter came before Francis J on 11 March 2026, however, Mr R
did not confine himself to drug testing relief. He pressed for a summary
enquiry into the appropriate interim care and contact arrangements (‘the
summary enquiry’) in light of developments.
[19] The application for leave to appeal the December order was set down
before Francis J together with the summary enquiry on 28 April 2026.
However, at the hearing Mr R abandoned the summary enquiry. He raised a
legal objection that Mr L had not been declared an interested person in terms
of section 23 of the Children's Act, and that an order as to [L’s] primary
residence could not therefore be made in his favour, and further submitted
that Mr M’s confinement in a rehabilitation clinic made the enquiry
unnecessary.
[20] Leave to appeal the December order was then refused by Francis J on 4
May 2026, and Mr R served a notice of withdrawal of his section 18
suspension application a day later on 5 May 2026.
[21] Two days later, on 7 May 2026, this application was launched.
Correspondence prior to the hearing
[22] The application was served on the respondents' attorneys at 18h48 on
Thursday, 7 May 2026 and set down for hearing on Wednesday, 13 May
2026. The following morning, the respondents' attorneys wrote to the
applicant's attorneys objecting to the short notice and querying whether the
applicant's attorneys had informed Francis J of the application to ascertain
his availability. The letter further observes that the ‘application is nothing
other than a transparent attempt to vary and appeal the order of Judge
Francis in a different guise’.
[23] The applicant's attorneys replied the same day stating that this application
would be set down before the urgent duty judge as Francis J had ‘made it
clear that he will no longer be involved in proceedings involving these
parties, save to assist in the allocation of an early trial date.’
[24] The respondents' attorneys separately forwarded their letter of 8 May 2026
directly to the registrar of Francis J. Upon discovering this, Mr R’s attorneys
objected to the communication with Francis J , characterising it as ‘forum
shopping.’
[25] On 11 May 2026, the respondents' attorneys wrote to Francis J's registrar,
bringing attention to the fact that the applicant had launched the curatorship
application and set it down before me in the fast lane of the Third Division
on 13 May 2026. They requested that Francis J indicate whether all related
applications should remain before him.
[26] On the same day, Francis J's secretary responded indicating that Francis J
was engaged in another matter on 13 May 2026 and suggested that the
application be referred to the judge on urgent duty. The matter accordingly
came before me.
Developments since December 2025 hearing and the founding
affidavit’s motivation for the relief claimed
[27] Mr R states that during the course of his relationship and later marriage to
Mr M, the family unit comprised himself, Mr M, [L], [W], and his two sons
M[...] and M[...]. Mr M struggled with addiction and severe depression, and
Mr R was ‘called upon to perform a primary parenting role ’ for both
children.
[28] He avers that his bond with [L] has been described by an expert, Ms
Pettigrew, and by the Family Advocate, as a primary attachment bond, and
by the Family Advocate's social worker as being preferential even to the
bond between [L] and Mr M . Mr L , by contrast, exercised only ‘sparing
contact’ with [W] during this period and had ‘no contact at all with, nor any
form of relationship with [L].’
[29] Mr R alleges that from at least December 2025, Mr L was aware of Mr M’s
relapse into drug -taking and that both respondents colluded to conceal the
extent of this from their own legal representatives, the experts, and the
Court.
[30] Mr R alleges further that, following Mr M’s admission to a drug
rehabilitation clinic on 20 March 2026, the two respondents agreed, without
reference to him and in breach of an 11 March 2026 order, that [L] and [W]
would reside primarily with Mr L. He contends this arrangement is unlawful
in that Mr L is neither [L’s] parent nor a person with an interest in [L] as
contemplated by section 23(1) of the Children's Act, and that Mr L had, until
as recently as September 2025, shown no interest in [L]. He further alleges
that the arrangement contravenes an order made by Francis J.
[31] As regards [L’s] welfare in these circumstances, Mr R states that when he
leaves to stay with Mr L he becomes ‘inconsolable’, and that he has
‘extremely traumatic WhatsApp videos reflecting this. ’ He also alleges that
Mr M’s representatives refused his expert, Ms Pettigrew, the right to
observe [L] at Mr [L’s] home.
[32] Mr R expresses his regret that, following the interim December 2025 order,
he is ‘only able to exercise contact with [L] on a Wednesday and one
weekend a month (7 days a month, when I had previously enjoyed 12 days a
month).’ He laments that Mr L ‘is now exercising contact with [ [L]]
commensurate with that which the 2 December 2025 order afforded to Mr M
as [L’s] father’.
[33] Mr R also expresses concern that it is ‘extremely difficult to negotiate
anything’ with Mr M on these issues. He adds that he ‘certainly support[s]
attempts to improve [ [L’s]] bond [with Mr M], but not at the expense of the
very important and emotionally foundational bond which I have with [L].’
[34] Aside from cataloguing the above issues pertaining to interim contact after
the December order, Mr R states that it is ‘essential and in the best interests
of the children that the relief be granted without delay ’, and that a curator ad
litem is needed urgently to ‘ascertain what is going on in the home of [Mr L]
and what is to happen when [M] is released from the clinic.’
[35] Notably, no expert reports are attached to the founding affidavit pertaining
to the desirability of appointing a curator ad litem in light of any
circumstances which have arisen since the last judicial consideration of care
and contact a few weeks ago . Nor is any reference made to previous judicial
pronouncements in the case management directions to which I will refer
below.
Mr M’s opposing affidavit
[36] Mr M at the outset raises three in limine points. First, he says that his
attorney immediately wrote to Mr R's attorney on receipt of the application,
noting that Francis J had been seized of the matter and all ancillary
applications for approximately one year, and that it would be ‘difficult, if
not impossible, for any other Judge, besides Francis J, to adjudicate the
curatorship application fairly without having read most of the previous nine
applications brought by the Applicant in this matter. ’ Second, he notes that
Francis J had previously ruled that all matters between the parties are to be
heard in camera. Third, and of central importance, he draws attention to the
case management directions issued by Francis J in relation to the various
interlocutory applications including the summary enquiry into interim care
and contact. These directives are worth setting out in some detail given their
relevance to this application.
[37] On 8 April 2026, following a hearing on 11 March 2026 which had been
triggered by Mr R's urgent drug -testing application, and following Mr M’s
admission to in -patient rehabilitation on 20 March 2026, Francis J issued
case management directions consolidating all pending applications for
hearing on 28 April 2026. In those directions he stated:
‘This Court is acutely aware that the children, [W] and [L], are not pawns. They
are young, vulnerable, and have already experienced significant disruption. The
proliferation of applications — urgent, stay, leave to appeal — is contrary to their
best interests. All the experts have at some stage or another, and in one way or
another, remarked that the greatest risk to the well -being of the children is the
conflict between the adults.’
[38] He added:
‘Enough is enough. The consolidated hearing on 28 April 2026 will be the
occasion for a final determination of the interim care arrangements pending the
action filed by [Mr R]. Thereafter, no further applications will be permitted without
compelling new evidence or a material change in circumstances.’
[39] In his supplemental case management directions of 10 April 2026, Francis
J reiterated: ‘No further interlocutory applications will be entertained except
for genuine emergencies relating to the children's safety.’
[40] Critically for present purposes, the 8 April 2026 directions also provided,
under paragraph 2.1, that ‘the children shall continue to reside primarily
with [Mr L] , meaning that the arrangement about which Mr R now
complains was itself endorsed by Francis J at a time when he was aware of
Mr M’s admission to rehabilitation and the nondisclosures preceding it.
[41] In relation to the consolidated hearing set down for 28 April 2026, Mr M
points out that this was the forum in which all the material facts now
advanced as justifying this application ( Mr M’s drug use and admission to
rehabilitation, the arrangements for the children in his absence and upon his
return, and the appropriateness of Mr L as a caregiver) would have been
ventilated. However, Mr R, on 28 April 2026,
‘inexplicably, and without any notice to [Mr L] or me, submitted that for various
reasons the enquiry should not proceed, despite the process for the enquiry having
been initiated by [Mr R] himself....’
[42] Mr M submits accordingly that ‘this application is again a further attempt
to address the interim contact arrangements, which interim contact
arrangements would have been addressed by the enquiry initiated by [Mr R]
in terms of his application, which he then withdrew or abandoned.’
[43] On the merits, Mr M addresses what he characterises as the two reasons
advanced by Mr R for the appointment of a curator. As to the allegation that
he would not allow Mr R's experts to evaluate [L], Mr M states that this is
incorrect, and that his objection to the applicant's experts observing and
interviewing the children was confined to the consolidated hearing of 28
April 2026, where Francis J had ruled, in terms of his supplemental
directions, that ‘the children have already been the subject of multiple expert
reports. They need a respite from being ‘observed’ and ‘interviewed’ on
behalf of competing adults ’. Mr M avers that he ‘never indicated that the
Applicant's experts will be precluded from assessing and/or observing the
children for the purposes of the further conduct of the matter and for
purposes of the trial’.
[44] As to the second reason, that it is difficult to negotiate with him, he
references Francis J’s reasons for the December order, delivered on 11
February 2026 which were animated principally by the consideration that ‘it
is in the best interests of the children that the contact arrangements prioritise
the children's emotional security, sibling bonds and stability ’, and that ‘as
far as reasonably possible, [L’s] contact with the Applicant should align
with [W]'s contact with the Applicant in order to avoid sibling separation
and to ensure consistency in their routines.’
[45] In his reasons, Francis J further held that:
‘The children's need for a stable, unified family environment outweighs the
marginal benefit of maximising individual time with [Mr R ] if it fractures their
shared life…[Mr R] is entitled to meaningful contact in terms of Section 23 of the
Children's Act, however, such contact must be structured in a manner that
preserves the Respondents' parental authority, prioritises the sibling bond, and
reduces the potential for future conflict.’
[46] Mr M submits that he is [L’s] sole parent and is not required to ‘negotiate’
with Mr R about decisions he makes for [L], and so the appointment of a
curator cannot assist Mr R in asserting rights he does not have.
[47] In relation to the decision to place [L] with Mr L during his rehabilitation,
Mr M states that he made this decision as [L’s] sole parent. He explains that
Mr L is [W]'s joint parent, and that it was accordingly natural and in the
children's interests for them to reside together in Mr [L’s] home, ensuring
maintenance of both sibling contact and also contact with Mr R, as endorsed
by Francis J in his April directions.
[48] As to the non -disclosure of his drug use, Mr M does not directly address
this in detail but his expert, Mr Dowdall, notes that when Mr L became
aware of Mr M’s relapses, rather than making immediate disclosure, he
‘implemented careful oversight ’ including requiring submission to regular
supervised drug tests between January and March 2026, (which returned
negative results), and helped ensure he attended sessions with his drug
counsellor and psychiatrist. The decision not to disclose the situation was
informed by the view that ‘this would unleash another acrimonious legal and
psychological assessment ’ at the instance of Mr R . Mr Dowdall
characterises Mr [L’s] approach as ‘practical, protective and child -focused’,
and states that he does not see it as ‘reckless or as indicative of an 'enabling'
mind-set, given the overall context in which it occurred.’
[49] In support of the contention that the children are faring well under their
current arrangements, Mr M relies inter alia on a communication from [L’s]
school principal, Ms Kaimowitz, dated 23 February 2026 which states:
‘[L] transitions smoothly on arrival and quickly conforms to the daily schedule. He
settles into classroom routines enthusiastically, engages with other children and
activities and responds well when the structure and expectations of the day are
clear and consistent ’ and that ‘it is very encouraging to see [L] beginning to build
friendships and form positive connections with the children in his new class.’
[50] As to his own recovery Mr M submitted a report from his psychiatrist Dr
[50] As to his own recovery Mr M submitted a report from his psychiatrist Dr
Tayob dated 12 May 2026, stating that despite the ongoing stress and
uncertainty of this litigation, Mr M remained positive and engaged in the
treatment process, applying recovery tools and coping strategies
appropriately. The report further states that he has demonstrated the capacity
to make sound and considered decisions regarding the care and well -being
of his children, and that he benefits from a strong support network of family
and friends. However, the report declines to comment on the sustainability
of his commitment to his children and parenting responsibilities beyond the
period of the clinic's care and involvement.
[51] Third, as regards expert evidence, Mr Dowdall, in his report of 7 April
2026, states that ‘in prior assessments, and school settings, [L] and [W] have
been described as well-adjusted and happy children’ and that in Mr Altman's
current 2026 observations he ‘likewise considers the children to be well -
adjusted and happy.’ As to Mr R's video evidence of [L’s] ‘tantrums,’ Mr M
quotes the joint expert minute of 16 April 2026 in which Mr Dowdall is
recorded as saying that ‘videos of toddler tantrums are not necessarily
indicative of trauma ’. Mr M adds that [L] has on occasion also ‘protested
loudly’ and cried when due to have contact with Mr R, but that he ‘would
not dream of videoing [L] in his moments of distress ’, conceding that [L]
‘then settles once he is with [Mr R].’
[52] Notably Mr M does not raise an objection to the costs of the appointment
of a curator ad litem which are likely to be significant especially if other
experts are appointed by her. Accordingly, this is not an issue which I have
considered relevant in assessing whether a curator ad litem should be
appointed.
Mr [L’s] opposing affidavit.
[53] Mr L avers that this is the seventh urgent application launched by Mr R
since February 2024, launched within 72 hours of Mr R abandoning his
application for leave to appeal the December order and withdrawing his
application in terms of section 18 of the Superior Courts Act.
[54] Mr L takes issue with Mr R's characterisation of his relationship with [L],
which he describes as based principally on the views of Ms Pettigrew, who
(as recorded in the joint expert minute of 16 April 2026) was constrained to
admit that she had never observed Mr L with [L] and accordingly was ‘not
in a position to comment ’ on that relationship. Both Mr Dowdall and Mr
Altman, by contrast, have observed Mr L with the children and reported
positively on his interactions with them. Mr Altman in his September 2025
report described Mr L as ‘lovely with the children ’, noting that ‘he is easy
going, bounded. He shows love to the children with a shining openness and
it was clear that the children adore him and are easily and connected to him.’
[55] As to the objective evidence of [L’s] well-being, Mr L states that, contrary
to Mr R's depictions of [L’s] distress, there have been ‘only two tantrums —
one in December 2025 (before the new regime was implemented) and one in
January 2026’, and that no further evidence of trauma or distress has been
placed before the court. He provided logs of the children's wellbeing to
Francis J as directed, and these reveal [L] cried on one occasion for the au
pair, and on one occasion for Mr M , and was easily settled on both
occasions. He adds that on one morning [L] cried and said he did not want to
go to Mr R, which he characterises as normal behaviour for a four -year-old
requiring support after contact periods. He adds that he (unlike Mr R) would
not ‘dream of videoing [L] in his moments of distress.’
[56] Mr L strongly disputes that [L’s] presence in his home is contrary to any
court order. He states that Mr M, as [L’s] sole parent, made the decision that
[L] should reside with him for the duration of the rehabilitation, principally
to keep the children together, and that Francis J specifically endorsed this
arrangement in his April 2026 case management directions. He further states
that, when Mr R's counsel contended before Francis J that the arrangement
was in breach of paragraph 7.4 of the 11 March 2026 order, Francis J ‘stated
in no uncertain terms ’ that the reference to ‘First Respondent and Second
Respondent’ in that paragraph ‘should of course be read as 'or'.’
[57] Mr L further takes exception to the powers claimed in the notice of motion.
He contends that the powers conferring access to his medical records and
treatment information are in violation of the National Health Act. 3 He
deprecates the proposal to have a social worker appointed by the curator
‘oversee the situation ’ in his home, ‘including the right to require such
person to sleep over at the home for observation purposes ’. He also points
out that a curator ad litem is sought to represent only [L], yet the powers
sought would also significantly impact [W]'s rights as well as his own
parental rights, when no case is made for such interference.
[58] Mr L therefore submits that [W] has been ‘air-brushed out of this
application’ with no regard for one of the foundational principle s of the
December order, viz. the preservation of the sibling bond. He submits that
this application is ‘yet another demonstration of the Applicant's reaction to
not getting what he wants ’ and ‘an abuse of the process of Court, vexatious
and contemptuous’, representing a further attempt to appeal the 2 December
2025 order via a different means.
[59] He concludes that the appointment of a curator would be detrimental to
both children's best interests, as they should not be subjected to yet further
interviews and observations, particularly when the parties' respective experts
will in any event be updating their reports for trial.
3 National Health Act 61 of 2003.
Mr R’s replying affidavit
[60] Mr R filed only a short affidavit in response to Mr [L’s] affidavit. He filed
no response to the affidavit of Mr M and accordingly those facts stand
largely uncontradicted.
[61] In his replying affidavit Mr R does not accept that the children are thriving
under the current arrangements, relying on his own observations of [L’s]
distress when leaving his home. He reiterates that he ‘has witnessed many
incidents of tantrums by [L] and, particularly, when he has to return to the
home of [Mr L].’
[62] It is further of some significance that Mr R concedes that the prayers in his
particulars of claim referring to parental rights and responsibilities were ‘a
misnomer’ which requires amendment, and that he ‘fully appreciate[s] that
[he] cannot obtain parental rights and responsibilities.’
[63] He maintains , however, that the respondents' opposition to the curator
appointment demonstrates their desire to avoid scrutiny of what is
happening in Mr [L’s] home, arguing that ‘if there is nothing to hide, the
appointment of a curator ad litem will do no harm.’
Mr R’s submissions
[64] Mr R submitted heads of argument prepared without reference to any
answering papers filed by the respondents because by that stage the
respondents had failed to comply with the deadlines set for the filing of their
answering affidavits (09:30 on Tuesday, 12 May 2026 ). Mr R submits that
the respondents ‘ignore the imperative ’ that they file answering papers by
this time, ‘in direct contravention of the Appellate Division authority in the
case of Republikeinse Publikasies (Pty) Ltd v Afrikaanse Perse Publikaseis
Ltd’.4 (This of course begs the question as to whether the timetable set was
reasonable, an issue to which I return later).5
[65] Mr R submits in this matter that one is dealing with
‘two Respondents who are dishonest … who have colluded together to mislead the
Court. They have withheld vital information from the Court, the Applicant, their
own experts and their own legal representatives, and they have done so not on
isolated occasions, but on several occasions.’
[66] Mr R submits that Mr M prior to the December 2025 hearing painted
himself as a man in good health, whereas in truth, he had relapsed into drug -
taking in Israel in October 2025. Mr L ‘again partook in drugs in mid -
December 2025 and again in Australia took cocaine and methamphetamines
… [and] he got involved in drugs in mid -January 2026 at a festival in
Citrusdal’. These facts were ‘well known to the Second Respondent when he
deposed to an affidavit on 27 January 2026, and when his counsel addressed
the Court on 11 March 2026.’
[67] Mr R continues by remarking that ‘by the time the Second Respondent
came clean, which was only on 20 March 2026, the damage had already
been done, in that Respondents had already, in collusion, achieved their
aims, namely to substantially diminish Applicant’s contact with [L]’.
[68] Mr R also does not accept the ‘curated version of the truth’ which emerged
from the respondents’ affidavits on 20 March 2026, stating that the hair
follicle tests reveal ‘heavy drug-usage for 3 months prior thereto, at 37 times
the level of a positive test.’
4 Republikeinse Publikasies (Pty) Ltd v Afrikaanse Perse Publikasieis Ltd 1972 (1) SA 773 (A) at
782A.
5 The respondents made certain submissions in a practice note but did not file heads of argument.
[69] Mr R contends that ‘as matters stand, there is in place a situation by virtue
of the 2 December 2025 Order, which amounts to an order which is
unlawful insofar as primary care and contact of [L] currently invests in [Mr
L] who is neither [L’s] father nor a person with an interest in [L], as
contemplated in section 23 (1) of the Children’s Act.’
[70] Mr R also points out that the trial date may not be allocated within a year,
and the respondents have even mooted the possibility of a separation of
issues, which would have the effect of delaying the trial. The result would be
that the interim arrangements could continue in place for an appreciable
time.
[71] Mr R also submits that the respondents’ newly appointed expert, Mr
Altman, ‘cannot be trusted ’ given his lack of professionalism and
independence, and that at the moment his legal team is
‘‘blindfolded’ – his experts have been denied the right to observe what is going on
in the Second Respondent’s household. It is accordingly shocking that there should
be an objection … to the appointment of an independent third -party looking after
the interests of [L]. We pose by way of a rhetorical question whether it is [Mrs M]
(Senior) or [Mr L] who is caring for the children, and why it is that [L] is throwing
tantrums from time to time. A further question should be of concern to the Court, is
where [Mr M] will live when he exits the clinic, and who will [Mr L] report to if he
relapses?’
[72] Mr R , responding to the allegations of ‘forum shopping ’, states that the
correspondence preceding this application indicates a ‘transparent attempt of
the Respondents to have the matter come again before Francis J ’, which is
‘forum shopping’ of the worst variety’.
[73] As to the references by the respondents to the case management directives
issued by Francis J, Mr R contends that during the argument on 6 May 2026
before Francis J he ‘stated unequivocally ’ that they (the case management
directives) would not continue to be binding.
[74] On the issue of the appointment of a curator ad litem Mr R emphasises
authorities which indicate that curators ad litem are appointed where, even if
the minor has a guardian, ‘the interests of the minor are in conflict with
those of the guardian or there is a possibility of such a conflict ’6 or where
there is a ‘risk of injustice’.7
JUDGEMENTS HANDED DOWN IN THE WEEK PRECEDING THE
HEARING
[75] In the week preceding the hearing three judgements were handed down by
Francis J in relation to the costs of various interlocutory proceedings which
had been before him in the course of the year to date. At least two are
relevant in the present context.
[76] As to the costs of the urgent drug-testing application of 10 March 2026 and
the summary enquiry which followed from it, culminating in the hearing of
28 April 2026 at which Mr R abandoned the enquiry, Francis J held:
‘the applicant pressed for a summary enquiry into the nature and extent of [Mr
M’s] drug use, and for an order that the primary residence of [L], and possibly [W],
be transferred to him.’
[77] Of relevance to the present application was the fact that Francis J found
that Mr R could not excuse his last -minute abandonment of the enquiry on
the basis of arguments that were available to him well in advance:
‘The first respondent's continued presence at the rehabilitation center, the
safeguards likely to attend his discharge, and the legal objection concerning the
6 Wolman and others v Wolman 1963 (2) SA 452 (A) at 459.
7 Du Toit and another v Minister of Welfare 2003 (2) SA 198 (CC) at 201, para 3.
second respondent's status, were available well before 28 April 2026. Some of
them were available from 11 March 2026 itself. None required any new factual
development. The applicant offers no explanation for why these contentions were
withheld until the day the experts assembled at court.’
[78] Francis J expressed similar sentiments in his judgement on costs pertaining
to the withdrawal of the application in terms of sections 18 (2) read with
section 18 (3) of the Superior Courts Act. He accepted that the
nondisclosure by Mr M and Mr L of the drug use was a ‘serious matter ’:
deponents in proceedings concerning the welfare of children ‘owe a duty of
candour to the court ’ and ‘are not entitled to confine themselves to
answering the questions framed by the other side’.
[79] Nonetheless, he rejected the ‘clean hands ’ argument which had been
advanced by Mr R in opposing a costs award on the basis that the
withdrawal of the application came only after the refusal of the application
for leave to appeal, not at the time of the disclosure of the drug use.
APPLICABLE LEGAL PRINCIPLES
Urgency and procedure
[80] Section 4 of the Children's Act 8 provides that, in all proceedings, actions or
decisions in a matter concerning a child, a delay in any action or decision
must be avoided.
[81] However, as held in MM v NM and Others:9
‘urgency is not automatic in cases involving minors. It can never be so. The
converse would be chaotic for our Courts especially for the urgent Court, seized
with its caseloads.’10
8Children's Act 38 of 2005.
9 MM v NM and Others (15133/23P) [2023] ZAKZPHC 117 (18 October 2023)
[82] It therefore remains the case that an applicant who seeks to intrude
themselves into the queue of litigants awaiting a hearing must properly
motivate the urgency of the matter, even if it relates to the welfare of a child.
[83] As he ld in East Rock Trading 7 (Pty) Ltd and Another v Eagle Valley
Granite (Pty) Ltd and Others11
‘The procedure set out in rule 6(12) is not there for taking. An applicant has to set
forth explicitly the circumstances which he avers render the matter urgent. More
importantly, the applicant must state the reasons why he claims that he cannot be
afforded substantial redress at a hearing in due course … the delay in instituting
proceedings is not, on its own a ground, for refusing to regard the matter as urgent.
A court is obliged to consider the circumstances of the case and the explanation
given.’
[84] An applicant who seeks urgent relief must thus provide a full explanation
for its alleged urgency and for any delays in bringing the application in its
founding affidavit.12 A litigant ‘may not simply sit back without taking steps
to seek urgent relief or seek such relief without a full and proper explanation
for any delay in doing so.’13
[85] An applicant must motivate its urgency based on the fact that its
entitlement to deviate from the rules is dependent upon and derived from the
urgency which it establishes on the papers.14
10 See further the remarks of Parker AJ in D.D v I.L and Another (16939/2024) [2024] ZAWCHC 215
(20 August 2024); E.L.B v A.V.M (7521/24) [2024] ZAWCHC 132
11 East Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty) Ltd and Others (11/33767)
[2011] ZAGPJHC 196 (23 September 2011)
12 Salt and Another v Smith 1991 (2) SA 186 (Nm); Luna Meubel Vervaardigers (Edms) Bpk v Makin
and Another (t/a Makin's Furniture Manufacturers) 1977 (4) SA 135 (W)
13 Mhonko's Security Services CC v City of Cape Town and Others (21132/2018) [2018] ZAWCHC
168 (30 November 2018)
168 (30 November 2018)
14 See Gallagher v Norman's Transport Lines (Pty) Ltd 1992 (3) SA 500 (W) at 502I.
[86] It is further relevant in the present context to note the following practice
directives:
(h) In terms of practice directive 36B (5), in matters involving minor
children:
‘the Judge shall as far as possible, retain and manage files where the interests of the
minor children are at stake. Any other proceedings pending in this Court in respect
of the same child or children should be managed by the same Judge to avoid
fragmentation of matters impacting on the same children.’
(i) In terms of practice note 36B(6) , any party in a case involving a minor
child may approach the Judge President by way of a practice note for the
appointment of an overseeing/supervising Judge should that be deemed
necessary.
Principles governing the appointment of a curator ad litem
[87] In cases where the interests of the minor child are in conflict with the
guardian, or there is a possibility of such conflict, it is necessary to have an
independent person appointed as curator ad litem. 15
[88] In matters where the interests of children are at stake, it is important that
their interests are fully aired before the court so as to avoid substantial
injustice to them and possibly others. Where there is a risk of injustice, a
court should appoint a curator to represent the interests of children.16
[89] It is not the function of a curator to adopt an objective approach. The
Family Advocate is available to provide neutral assistance, should that be
15 Wolman and Others v Wolman 1963 (2) SA 452 (A)
16 Du Toit and Another v Minister of Welfare and Population Development and Others (Lesbian and
Gay Equality Project as Amicus Curiae) 2003 (2) SA 198 (CC).
required. The function of a curator is rather to advocate the minor child’s
interests by advancing all possible arguments advantageous to the child.17
DISCUSSION
Basis for urgency
[90] As the authorities cited in paragraph [85] lay down, it is incumbent upon an
applicant to show that the timetable imposed, and the date chosen for the
hearing, was reasonable in all the circumstances. The hearing date should
take into account the rights of the respondent to mount a proper defence as
well as the basis for the urgency of the relief claimed. This is a balancing act
which must always be undertaken by an applicant who seeks an urgent
hearing, and which will be weighed by the court when it considers whether
urgency has been established on the papers.
[91] The motivation for urgency in the founding affidavit is the following:
(j) Mr M does not accept the contentions relating to the current well -being
of the children at school and in the home of Mr L;
(k) Ms Pettigrew has expressed the view that reducing Mr M’s contact time
with [L] is not in [L’s] best interests;
(l) Mr R attempted to have his expert observe [L] with Mr L, but this was
refused;
(m) Matters concerning children are ‘generally urgent’ having regard to the
provisions of the Children’s Act ‘and this application admits of no
exception’;
(n) It is a matter of
17 Legal Aid Board: In re Four Children (512/10) [2011] ZASCA 39 (29 March 2011)
‘extreme urgency that an independent voice, such as the curator ad litem, ascertain
what is going on in the home of [Mr L] and what is to happen when [Mr M] is
released from the clinic. Although he is expected only to be released in June 2026,
there is nothing to prevent him from leaving at a much earlier time, and the curator
will be able to urgently advise the court as to safeguards required.’
[92] The primary basis submitted by Mr R for the acknowledged ‘extreme
urgency’ is thus the fact that Mr M , though currently confined to a drug
rehabilitation clinic from which he is due to emerge in mid -June 2026, may
be released (seemingly of his own volition ) ‘at any time ’. As matters
presently stand, there is no court order in place containing safeguards for the
protection of [L] as and when his father exits the in-patient programme.
Self-created urgency
[93] Mr R ’s counsel candidly and correctly admitted in argument that the
trigger for this application was the refusal of Mr R’s application for leave to
appeal the December order. This occurred on 4 May 2026.
[94] The difficulty with the above is that the reason advanced for the urgency of
the application is not motivated with respect to the dismissal of the
application for leave to appeal the December order. On the founding papers
the urgency is said to arise from Mr M’s relapse into drug-taking.
[95] It is further not in dispute on these papers that the above issue now said to
constitute the reasons for the urgency originated in early March 2026. In Mr
R’s own founding affidavit he says that he received ‘a tip -off of cocaine
usage by Mr M…on the 7 March 2026 weekend…which led me to launch
the drug-test application’.
[96] The day after the launch of the drug -testing application on 10 March 2026
an order was granted on 11 March 2026 to the effect that, pending a hearing
on 8 April 2026, interim arrangements in relation to the children would
apply, and that ‘save for when the children sleep at the home of [Ms A.M.]
their grandmother, should the First Respondent and Second Respondent not
be able to be present with the children, the children shall be placed with the
Applicant’ (para 7.4).18
[97] The founding affidavit then narrates how the hair follicle and urine drug
tests on 12 March 2026 to which Mr M submitted established drug usage in
the preceding 3 months. In the ensuing ‘affidavits filed by the respondents
on 20 March 2026, the extensive drug use became apparent ’, and ‘revealed
that Mr L had deliberately decided … that he would not inform either myself
or the Court of his knowledge of Mr M’s relapses.’ Mr M then booked
himself into the in-patient drug rehabilitation programme.
[98] It is therefore established on the papers that Mr M’s relapse was known to
Mr R by 7 March 2026, and by 20 March 2026 there could be little doubt
about the gravity and extent of the relapse. Accordingly, all the conditions
necessary for relief relating to the appointment of curator ad litem were
present by no later than 20 March 2026, but arguably from as early as 7
March 2026. Yet despite this Mr R did nothing to appoint a curator ,
focusing instead on the summary enquiry and his attempts to obtain leave to
appeal the December order. It was only after he abandoned the summary
enquiry on 28 April 2026, and his application for leave to appeal was
dismissed on 4 May 2026, that Mr R turned to the relief he now seeks. This
is despite the fact that the advantages now said to flow from the appointment
of a curator ad litem would have been just as apparent in the time preceding
the dismissal of the application for leave to appeal. (Counsel for Mr L
18 As noted elsewhere it is not disputed that Francis J stated this should be interpreted as stating ‘ First
Respondent or Second Respondent’.
submitted that Mr R during this time was ‘content for Mr M to be a parent to
[L] for 16 out of 28 nights but not for 21 out of 28 nights’).
[99] It is further important to remember that the summary enquiry was intended
to ventilate the recent concerns which had emerged in relation to Mr M’s
relapse, with the benefit of expert evidence. I may add that in my view it
was an ideal opportunity to do so. I do not accept the suggestion made in
argument by Mr R’s counsel that the pre-hearing directions in relation to the
evidence which could be led, and the fact that lay witnesses could only be
led with the leave of the court, rendered the summary enquiry somehow
inapposite for the purpose for which it had been constituted.
[100] On a conspectus of all the facts, therefore, it cannot be gainsaid that Mr R,
for reasons which still remain unclear, abandoned the opportunity presented
by the summary enquiry to ventilate the issues arising from Mr M’s relapse
and admission to a rehabilitation clinic. Moreover, the December order and
the attempt to appeal it had nothing to do with the appointment of a curator
ad litem and everything to do with the rights of Mr R to contact, placing
further strain on the ostensible motivations for urgency.
[101] In short, the urgency advanced is self -created because Mr R was aware of
all the circumstances now relied upon for urgency from as early as 7 March
2026, and certainly by no later than 20 March 2026. He elected not to seek
the appointment of a curator ad litem at that stage, instead pursu ing the
summary enquiry , and thereafter his application for leave to appeal the
December order. Only after those avenues closed did he turn to the present
relief. The common-cause trigger for this application was not any fr esh or
supervening concern relating to the welfare of [L], but rather the failure of
these other litigation endeavours. An application for the present relief could
have been launched much earlier in March 2026, but was not. This is classic
self-created urgency.
The timetable for filing papers and choice of hearing date
[102] In the event, three court days’ notice of the hearing was provided after
this application was launched on the evening of Thursday, 7 May 2026. The
notice of motion required the respondents to deliver their answering
affidavits by 09:00 on Tuesday, 12 May 2026. No provision was made for
replying affidavits, and the hearing was scheduled for the following day,
Wednesday 13 May 2026.
[103] The reasons for choosing 13 May 2026 as the date for hearing are not
made clear. As mentioned, the founding affidavit predicates the urgency on
the imminent discharge of Mr M from rehabilitation, suggesting that, though
only scheduled for discharge in June 2026, he may emerge suddenly at any
time. However, (for instance) no attempts were made by Mr R to ascertain,
in the week before the hearing, whether Mr M would be likely to be
discharged the following week. If that answer had been in the negative, then
more time could have been afforded to the respondents (and to court) to
digest the application. Indeed, such enquiries may have revealed that there is
no intention on the part of Mr M to be discharged prior to June 2026, or
could have engendered an undertaking from him to this effect, so that this
matter could have proceeded in a more measured way, as its seriousness
requires. The position is exacerbated by the self -created urgency already
discussed.
[104] Finally, it is relevant that the practice directives quoted in paragraph [86]
above imply that there was a duty on the applicant either to ascertain the
availability of Francis J to hear the matter on a mutually convenient date,
(subject to any perceived urgency), or to urgently seek the appointment of a
new Judge to oversee the matter by way of a practice note.
[105] It may be so that Francis J had, in the course of a previous hearing,
indicated that he would no longer remain involved beyond securing a trial
date, and that he intimated that he would approach the Judge President to
allocate a different Judge to oversee the matter. However, the fact remains
that the founding affidavit does not explain why an approach was not first
made to Francis J, before the choice was made of 13 May as the date of the
hearing. For instance, if Francis J was available on 14 or 15 May, or even in
the following week, this would have made no discernible difference on the
case for urgency advanced, and the matter could have been adjudicated by a
court familiar with the facts and the history. Approaching the duty court in
the fast lane in Third Division on 13 May 2026 should have been resorted to
last, not first.
The desirability and need for the appointment of a curator ad litem
[106] Despite what I have said above on the issue of urgency, even if an
applicant drags their heels unnecessarily, or pays insufficient heed to the
usual requirements to motivate the urgency of the hearing date, this may not
negate the need for urgent relief if the interests of the child demand it: it is
trite that the interests of the child trump all other considerations.19
[107] Thus, though the urgency is self -created, and the reasons for the choice of
the hearing date opaque, it is nonetheless necessary to consider whether
granting the urgent relief claimed is in [L’s] best interests.
[108] Counsel for Mr R argued that a curator ad litem in a matter such as this
will be in a position to be ‘the voice of the child ’ to advocate the child’s
19 S v M (Centre for Child Law as Amicus Curiae) 2008 (3) SA 232 (CC)
interests in what is by all accounts an extremely acrimonious and litigious
atmosphere which has infected not only the litigants’ relationships but also
those of the professionals dealing with the matter. The intercession of such
an independent professional person, so he submitted, would conduce to
defusing these tensions and focusing the parties on what is really at stake,
namely the interests of [L].
[109] These arguments are superficially attractive. However, as mentioned, Mr
L in his opposing affidavit expresses his view that the appointment will only
increase the risk of interference in the daily lives of these children. As
submitted by Mr [L’s] counsel, these children are increasingly ‘living under
a microscope’.
[110] I agree. The pattern of the litigation thus far, even from the vantage point
of my brief involvement, can lead to no other conclusion. The remarks of
Francis J adverted to by the respondents, though made in the context of case
management directions for previous consolidated interlocutor ies, are recent
and remain relevant, as Mr M contends in his opposing affidavit.
[111] As already mentioned, Francis J’s case management directions of 8 April
2026 ruled that , pending the summary enquiry , no further interlocutory
applications would be permitted without prior leave ‘except for genuine
emergencies’.
[112] The court was ‘acutely aware that the children… are not pawns’, and that
‘all the experts have…remarked that the greatest risk to the well -being of the
children is the conflict between the adults… enough is enough…no further
applications will be permitted without compelling new evidence…’.
[113] The supplemental case directions of 10 April 2026 (arising from an
application to allow Mr R’s experts to interview the children after they had
already filed reports), observed that
‘the children have already been the subject of multiple expert reports. They need a
respite from being ‘observed’ and ‘interviewed’ on behalf of competing adults’.
[114] In summary, therefore, I am confronted with recent compelling judicial
pronouncements that the welfare of these children will be affected by further
interference in their daily lives arising from this litigation. I have before me
no evidence that circumstances have changed substantially, or even at all,
since then, nor do I have any expert evidence that the relief claimed is
desirable and will not result in unnecessary disruption to the children. The
reasons advanced for the appointment of a curator evaporate in the face of
this.
[115] It is further unrealistic to expect a curator ad litem to defuse tensions in
this litigation: this is the responsibility of the professionals, parents, and all
the adults interested or involved in [L] and [W]’s welfare. Whilst such may
be the effect of a curator ad litem, equally, in advocating for what are
believed to be the child’s best interests, a curator may attract accusations of
partiality and collusion , and thereby risk being drawn into the ongoing
internecine wrangling between the adults.
[116] It is further relevant that the appointment of a curator ad litem is not
always to be thought of as a balm. For instance, in Van den Burgh v
National Director of Public Prosecutions 20 the court declined to appoint a
curator when urged to do so by the amicus curiae, the Centre for Child Law.
The court accepted that there was a ‘significant difference and even a
conflict between the parents’ and the children’s interests’, but held that
‘the critical question is rather whether the information before the High Courts was
sufficient to consider the interests of the children, or whether the appointment of a
curator to present this information is necessary. In exceptional circumstances –
20 Van den Burgh v National Director of Public Prosecutions 2012 (2) SACR 331 (CC)
where there is insufficient information about the children, or where the information
before the Court leaves some doubt regarding the children’s well -being – the Court
may need to appoint a curator to conduct an independent assessment of the
children’s interests.’
[117] In the present matter there is ample information before the court and no
impediment offered by the respondents to such further observation and
interviews as may be required to assess any developing situation in Mr [L’s]
home. The suggestion that the case management directions preclude such
observations does not hold water: they were made pending the summary
enquiry which was abandoned by Mr R on 28 April 2026.
[118] Thus, should Mr R’s experts require reasonable access to the children to
assess the situation after Mr M’s return home from rehabilitation, they
would be entitled to request this; there is no need for the appointment of a
curator to place this information before the court.21
Inadequate assurance that appointment would be in [L’s] (and
[W]’s) best interest
[119] I am mindful of the fact that in these urgent proceedings I have not had
the benefit of expert opinions in relation to the appointment of a curator ad
litem. Whilst engaging experts to opine on this would arguably be overkill,
the fact remains that this matter was argued on the basis of extreme urgency
in circumstances where not even the Family Advocate submitted a report on
the desirability of the appointment or its possible effect on the children.
21 See e.g. TH v CH [2024] ZAWCHC 100 which also involved a parent undergoing substance-abuse
treatment: the court did not consider the appointment of a curator but ordered a structured, phased
approach to gradually increase the mother's contact with the child, making each phase contingent
upon rehabilitation.
[120] Had a more appropriate timetable been employed, as already suggested,
there may have been time to procure such a report and to weigh the issues
with the benefit thereof, and with the benefit of heads of argument.
[121] Nor did the founding affidavit motivate why the Family Advocate could
not perform the required investigative role into ‘what was going on ’ in the
respondents’ home. After all, the Family Advocate has at their disposal
qualified social workers arguably better placed to conduct these kinds of
investigations than a curator ad litem. The curator ad litem, a legal
practitioner whose task it would be to advance partisan arguments in the
interests of the child, would in my view be less well placed to conduct such
an investigation than an impartial person appointed by the office of the
Family Advocate.
[122] Lacking expert views directed specifically at the issue of the appointment
of a curator ad litem, the recency of the report from Mr Dowdall attached to
the answering affidavit of Mr M (it is dated 16 April 2026) is relevant to
address the primary basis for the relief sought, viz. the current risk posed by
Mr M’s drug taking. I quote the relevant passage in full:
‘The absence, as far as available evidence shows, of any link between the alleged
instability and any demonstrable harm to the children, suggests that Pettigrew’s
arguments may be more based on speculation than actual evidence. One allegation
of neglectful parenting appears to be based at least partly on Mr M’s failure to
immediately disclose his substance use to the Court. Yet this, in and of itself, does
not constitute neglect in parenting, in that no evidence has been presented of
neglect whilst the chil dren were in Mr M’s care, nor have they been in his care
when he was under the influence of drugs. In fact three of the instances occurred
outside his periods of caregiving and during the fourth his mother was taking care
of the children. In the absence of evidence that the children were directly exposed
of the children. In the absence of evidence that the children were directly exposed
to harm or risk during those periods, the description of his conduct as neglectful
parenting appears overstated. Pettigrew's report includes a generalised account of
the range of behavioural effects associated with the drugs in question, including
increased aggression, impulsivity, diminished stress tolerance and increased risk of
reckless behaviour. Whilst this is not inaccurate data in terms of general types of
response to these substances, the report does not adequately connect these
theoretical risks to Mr M’s actual behaviour. There is no clear evidence that he has
exhibited aggressive behaviour, impulsiveness or reckless conduct in his role as a
parent. There is passing reference to allegations of sexual behaviour contained in
recent affidavits, but reliance on this is problematic, given the contested and
intensely adversarial nature of those allegations …’
[123] The above is a response to a report from Ms Pettigrew dated 25 March
2026 which was not attached to the founding affidavit. 22 However, it seems
to me that these remarks of Mr Dowdall are apposite in the present context.
There is little substantiation for any link between the substance abuse and
harm to [L] and [W] in the founding affidavit.
[124] To sum up: there is insufficient information before the court to conclude
that there is, or may be, a conflict of interest between [L] and Mr M
requiring the appointment of a curator ad litem. This is because, aside from a
few tantrums, all indications are that [L] is being well cared for , and is
happy; on the facts currently before this court the interests of Mr M in
maintaining the interim contact regime do not run counter to the interests of
[L], nor is there established any appreciable risk of conflict between the
interests of father and son at this stage . Moreover, even if some risk of
conflict exists, in my view this does not outweigh the possible disadvantages
to the children of appointing a further participant in this acrimonious
22 I was invited by counsel for Mr R to utilise this court's inquisitorial powers (see Mpofu v Minister
for Justice and Constitutional Development and Others (Centre for Child Law as Amicus
for Justice and Constitutional Development and Others (Centre for Child Law as Amicus
Curiae) 2013 (9) BCLR 1072 (CC)) and call for whatever documents are missing . However, in my
view there is a limit to the extent to which this court may institute a roving enquiry unless the child’s
interests demand it; the founding affidavit necessarily shapes the litigation even where minor children
are involved.
litigation when an impartial party such as the Family Advocate may
adequately address the concerns raised.
Powers of curator unacceptably wide
[125] The respondents correctly pointed out that the powers of the curator as set
forth in the notice of motion are very wide. They submitted that , even if the
court could be persuaded to grant an order appointing a curator ad litem, the
powers afforded in the notice of motion were unnecessarily intrusive.
[126] Whilst the notice of motion affords the curator ad litem the power to
submit a report to the trial court , the focus of the powers appears to be on
interim care and contact pending the trial.
[127] The respondents thus understandably submitted that the proposed
appointment of a curator was nothing less than a Trojan horse for Mr R’s
persistent goal to increase interim contact.
[128] In response, counsel for Mr R submitted that, if I was of the opinion that
any of the powers in the notice of motion were too wide, I was free to
modify them or whittle them down as I saw fit.
[129] Of course this is true, but it was the responsibility of Mr R as the
applicant to put forward powers he viewed as appropriate and reasonable at
the outset. Whilst the court would not hesitate to craft an order whereby the
curator would be afforded appropriate powers, if that was indicated, it is
nonetheless not desirable (unless circumstances dictate) to leave a court to
puzzle out the appropriate provisions in a draft order without expert
assistance.
[130] Thus in my view, even if I had been persuaded as to the wisdom of the
appointment a curator ad litem, the powers afforded in the notice of motion
are too wide and intrusive, and their proper ambit remains unclear.
CONCLUSION
[131] The proposed curator ad litem appointment would entail interviews of the
children by the curator, access to school and medical records, and the
compiling of comprehensive report s for the court. In a matter involving
children who have already been subjected to acrimonious litigation for
several years, and the interference in their daily routines that such litigation
inevitably produces, the proposed appointment carries the risk that
ultimately it is the children that will pay the real cost of this intervention.
This risk currently outweighs the risk of any possible conflict between the
interests of Mr M and [L].
[132] There is further no basis advanced for concluding that circumstances have
changed in any material way since the judicial pronouncements in recent
weeks by Francis J to the effect that further interference in the daily routines
of [L] and [W] will not be in their best interests. Mr R chose to launch this
application as a matter of extreme urgency in the face of this and based on
the same information already before the court. I am therefore not persuade d
of the wisdom of the appointment sought.
[133] Nonetheless, the fact that Mr M’s drug relapse was not disclosed at the
very least to his own appointed experts and legal representatives is serious,
and a cause for concern . Accordingly, if all required information is to hand
as to whether the associated disruptions are warranted, a court may be
persuaded to appoint a curator. I have therefore made provision in the order
for the application to be appropriately re-enrolled with such amendments to
the proposed powers of the curator ad litem as are deemed necessary, and
after obtaining a report from the Family Advocate on the desirability of, and
need for, such an appointment.
COSTS
[134] I take cognizance of the fact that generally speaking , in litigation
concerning children, costs do not follow the result. But one rationale for this
rule is to prevent costs becoming an obstacle to access to the c ourts as this
will be to the detriment of children ,23 which it would seem applies with less
force to Mr R.
[135] Furthermore, as held by Francis J in his judgement awarding costs to the
respondents for the 2 December 2025 application, this principle does not
immunise litigants in matters concerning children from costs altogether. The
court retains a discretion to be exercised with due regard to the conduct of
the parties and the interests of the minor child.
[136] I have made my views on the timing and basis for this litigation clear. The
fact that the litigation concerns a minor child takes nothing away from these
findings, particularly in that it is evident that Mr R ’s primary concern
remains focused on increasing his own interim contact with [L].
[137] This further precipitate application is bound only to increase the existing
acrimony between the parties. Repeated urgent applications of this kind
should be discouraged.
[138] In the particular circumstances of this matter I therefore take the view that
it is appropriate that the costs should follow the result. Given the complexity
and seriousness of the matter the costs of counsel should be payable on
scale C.
[139] However, I do not believe that the facts warrant costs on a punitive
attorney and client scale, as was submitted by both respondents.
23 JJ v RV (5832/2019) [2020] ZAFSHC 226.
ORDER
[140] I accordingly make the following order:
(a) The application is struck from the roll with costs including the costs of
counsel payable on Scale C;
(b) The applicant may, if so advised and after:
(i) compliance with practice directive 36B(6);
(ii) filing a report from the Family Advocate as to the desirability of, and
need for, the appointment of a curator ad litem,
re-enrol the application for the same or modified relief on supplemented
affidavits and an appropriate timetable for filing further papers.
________________________
M GREIG
ACTING JUDGE OF THE HIGH COURT
WESTERN CAPE
Appearances:
For Applicant: Adv B Pincus SC, Adv RDE Gordon
Instructed by: Maurice Phillips Wisenberg, B Preller
For First Respondent: Adv S van Embden
Instructed by: Norman Wink & Stephens
For Second Respondent: Adv J McCurdie SC
Instructed by: Norman Wink & Stephens