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
JUDGMENT
Case No: 1092/2020 & 8498/2020
In the matter between:
B[...] K[...] (born C[...]) Applicant
and
S[...] C[...] K[...] Respondent
Neutral citation: B K[...] v SC K[...] (Case no 1092/20 & 8498/20 ) ZAWCHC ___
(26/05/2026)
Coram: GOLIATH, DJP
Heard: 14 April 2026
Delivered: 26 May 2026
_________________________________________________________________________
ORDER
________________________________________________________________
1. The application for leave to appeal is dismissed with costs.
2. The operation and execution of the decision of th is Court on 11 April 2025
under case number 1092/2020 (with 8498/2020) is not suspended, as
contemplated in section 18(1) of the Superior Courts Act 10 of 2013, pending
the exhaustion of all leave to appeal applications and all appeal proceedings,
in all Courts, including th e High Court and any Superior Court, and until they
are finally determined.
________________________________________________________________
JUDGMENT DELIVERED ELECTRONICALLY ON 26 MAY 2026
__________________________________________________________________________________
GOLIATH, DJP
[1] This is an application for leave to appeal filed by the applicant, Mrs B[...] K[...],
against an order granted by this Court on 11 April 2025. The applicant has also filed
an application in terms of section 18(3) of the Superior Courts Act 10 of 2013
seeking the suspension of the Order pending appeal , which the respondent has
opposed. The applicant filed her application for leave to appeal on 8 May 2025. On
20 March 2026, almost a year later, she filed an application to amplify her grounds of
appeal.
[2] The respondent instituted divorce proceedings against the applicant in
January 2020. The divorce was acrimonious in the extreme. The parties reached a
settlement in the divorce action in respect of spousal maintenance and the
proprietary consequences of the marriage. The only outstanding issue in the divorce
was the question of the parties’ exercise of their respective parental rights and
responsibilities in respect of the two minor children. Adv Diane Davis SC was
appointed as curator ad litem to the minor children. The curator ad litem filed a
comprehensive report which culminated in a highly structured Parenting Plan. The
Parenting Plan provided for the appointment of a curator ad personam to essentially
manage the personal and physical well -being of the minor children in the
dysfunctional co-parenting environment.
[3] On 11 April 2025 I granted an order of divorce incorporating a parenting plan
regulating the care and contact arrangements of the two minor children as proposed
by the curator ad litem. In terms of the order Ms Magdel Oosthuizen was appointed
as the curator ad personam to the minor children. Significantly, Mrs K[...] heeded
Oosthuizen’s role as curator ad personam and recognised her powers as provided in
the court Order until mid-January 2026.
[4] The main grounds of appeal, as amplified, on which Mrs K[...] seeks leave to
appeal can be summarised as follows:
4.1. The Court erred in appointing a curator ad personam in circumstances
where:
4.2. The children are not cognitively impaired, and the parents have not
been found to be unable or unfit to parent.
4.3. The powers conferred on the curator ad personam override the parents’
joint decision -making powers and to make decisions outside of the
scope of the Court ordered parenting plan, amount to an improper
delegation of judicial authority.
4.4. The appointment of the curator ad personam unreasonably limits the
parties’ rights in terms of section 34 of the Constitution and section 31
of the Children’s Act 38 of 2005 (“the Children's Act”).
4.5. The Court assigned parental responsibilities to the curator ad
personam where no such application was made.
4.6. A parenting coordinator or mediator would have been more
appropriate.
4.7. The Office of the Family Advocate was not directed to or given an
opportunity to investigate the necessity of appointing a curator ad
personam.
[5] The applicant seeks leave to appeal against parts of the order which primarily
relates to the parenting plan and appointment of a curator ad personam to the minor
children. The crux of the application for leave to appeal is therefore Mrs K[...]’s
opposition to the appointment of a curator ad personam since she is of the view that
such appointment imposes unconstitutional limitations on her parental rights and is
not in the best interests of the minor children.
[6] It was therefore contended that the Court erred in not having due regard to
the Constitutional imperative that the interests of the minor children should be of
paramount importance, and in not considering its overriding role as upper guardian
of the minor children. The applicant thus seeks to overturn on appeal:
6.1 the appointment of a curator ad personam for the minor children.
6.2 all the provisions in the order referring to a curator ad personam.
6.3 the provisions of clause 13 of the order which provides for mandatory
dispute resolution before initiating court proceedings.
[7] Section 17(1) of the Superior Courts Act, Act 10 of 2013 regulates
applications for leave to appeal and provides:
“Leave to appeal
17. (1) Leave to appeal may only be given where the judge or judges
concerned are of the opinion that-
(a) (i) the appeal would have a reasonable prospect of success; or
(ii) there is some other compelling reason why the appeal should be
heard, including conflicting judgments on the matter under
consideration;
(b) the decision sought on appeal does not fall within the ambit of section
16(2)(a); and
(c) where the decision sought to be appealed does not dispose of all the
issues in the case, the appeal would lead to a just and prompt
resolution of the real issues between the parties.”
[8] The test, which was applied previously in applications of this nature, was
whether there were reasonable prospects that another court may come to a different
conclusion. With the enactment of section 17 of the Act the threshold for granting
leave to appeal a judgment of a High Court has been significantly raised. In Mont
Chevaux Trust v Goosen and 18 Others1 the following was stated:
“It is clear that the threshold for granting leave to appeal against the judgment
of a high court has been raised in the new Act. The former test whether leave
to appeal should be granted, was a reasonable prospect that another court
1 2014 JDR 2325 (LCC) at para 6.
might come to a different conclusion. See Van Heerden v Cronwright &
Others 1985 (2) SA 342 (T) at 343H. The use of the word ‘would’ in the new
Statute indicates a measure of certainty that another court will differ from the
court who’s judgment is sought to be appealed against.”
[9] The fact that the test for leave to appeal is more stringent was reaffirmed by
the SCA in the matter of S v Smith2 where the following was stated:
“In order to succeed, therefore, the appellant must convince this court on
proper grounds that he has prospects of success on appeal and that those
prospects are not remote, but has a realistic chance of succeeding. More is
required to establish that there is a mere possibility of success, that the case
is arguable on appeal or that the case cannot be categorized as hopeless.
There must, in other words, be a sound, rational basis for the conclusion that
there are prospects of success on appeal.”
[10] In Ramakatsa and Others v African National Congress and Another, 3 the
SCA stated the test for leave to appeal as follows:
“The test of reasonable prospects of success postulates a dispassionate
decision based on the facts and the law that a court of appeal could
reasonably arrive at a conclusion different to that of the trial court. In
other words, the appellants in this matter need to convince this Court on
proper grounds that they have prospects of success on appeal. Those
prospects of success must not be remote, but there must exist a
2 2012 (1) SACR 567 (SCA) at para 7.
3 (724/2019) [2021] ZASCA 31 at para [10].
reasonable chance of succeeding. A sound rational basis for the
conclusion that there are prospects of success must be shown to exist.”
[11] The grounds of appeal have been succinctly set out in the Notice of
Application for leave to appeal. Applicant takes issue with, firstly, the appointment of
a curator ad personam to the children and, secondly, to the wide powers granted to
the said curator ad personam . Applicant submitted that a curator ad personam is
concerned with persona l matters relating to the person in respect of whom they are
appointed, such as where that person is to live (e.g. whether they need to be
consigned to an institution or to live at home ), their health (e.g. whether they are to
have a particular treatment such as an operation and by whom it is to be performed )
and generally the control over their personal day to day living4.
[12] Applicant stated that under the common law, the High Court has the
jurisdiction to appoint curators to the person (curators ad personam), of individuals
who are of unsound mind and as such incapable of managing their affairs. 5 Applicant
submitted that this is the only legal basis upon which a curator ad personam can be
appointed, it is submitted. Furthermore, a curator ad personam is not lightly
appointed, and a Court will make such an appointment only when it is essential 6 or
when a real need for it has been shown7.
[13] Applicant argued that case law does not support the approach adopted by this
court insofar as a court has appointed a curator ad personam to a minor where such
minor is not mentally incapacitated, and there exists no legal basis for such
4 Ex Parte Hill 1970 (3) SA 411 (C) 412G-H and Herbstein & Van Winsen supra at p. 1562/3.
5 Voet 27.10.3.
6 Ex Parte Powrie 1963 (1) SA 299 (W) at 300.
7 Martinson v Brown; Gray NO v Armstrong 1961 (4) SA 107 (C) at 110.
appointment. A curator ad personam is normally appointed by the Court to take
control of the personal matters of an incapacitated person (normally the
incapacitated person (adult) similar to the powers which a normal parent has over his
child) and such curator is ordinarily empowered with “parental powers ” over the
patient, in regard to matters relating to the patient's person, physical and mental well-
being, as well as their residence, medical decisions and day to day living. Here the
appointment is to the children, there being no question of incapacitation.
[14] Applicant argued further that i n respect of a minor child, such powers vest in
those who have parental rights and responsibilities in respect of the child, ordinarily
the child’s parents. In other words, by its very definition, the appointment of a curator
ad personam to a child entails the assignment of parental powers to the said curator
which encroaches on the rights of Mr and Mrs K[...], who are the existing co -holders
of full parental rights and responsibilities in respect of their children. In other words,
by this appointment, the Court gave parental powers to a curator, over these
children, in circumstances where the parents already had these powers.
Accordingly, the order means that the Court has appointed a “third parent”.
[15] Applicant argued that the Children’s Act does not provide for the appointment
of a curator ad personam to a child. More specifically, sections 23, 24 and 28 of the
Act provide for very specific requirements (including the bringing of an application by
a qualifying person) before any parental rights and responsibilities can be assigned
to a third party other, than a child’s parent. Applicant stated that in this matter no
such application in terms of the Children’s Act was brought and no such order was
made, but the effect of the 11 April 2025 Order was to assign parental rights and
responsibilities, including rights of guardianship and decision -making, to the curator
ad personam , Ms Oosthuizen, and which appointment was a nullity, alternatively,
unlawful.
[16] With reference to TC v SC8 the applicant argued that the appointment of and
powers conferred on a parenting coordinator can and should be limited to avoid an
impermissible delegation of judicial authority. The role of a parenting coordinator is
contemplated as assisting high -conflict parents to implement their parenting plans
and, to that end, with the consent of the parties or the authority of the Court.
Applicant contends that the Children’s Act sets out the substantive matters which lie
within the exclusive preserve of a Court to decide, having regard to the standard of
the best interests of the child. These matters include care and contact, guardianship,
and the termination, extension, suspension or restriction of parental responsibilities
and rights. Applicant submitted that a ny purported delegation to a parenting
coordinator of the power to decide these matters would be unlawful. Thus, for
example, it would be unlawful and invalid to confer on a parenting coordinator the
power to change the primary residence of a child, or to alter the allocation of contact
between the parents, or to determine whether a parent’s contact with a child should
be supervised.
[17] Applicant noted that section 34(5) of the Children’s Act prescribes that
parenting plans which have been made an order of Court may only be amended or
terminated by an order of Court on application, while section 22(7) provides that only
the High Court may confirm, amend or terminate a parental responsibilities and
rights agreement which relates to guardianship of a child. These provisions make it
clear that a parenting coordinator cannot make a valid directive which has the effect
of amending a court ordered parenting plan. Applicant therefore submitted that the
8 2018 (4) SA 530 (WCC)
11 April 2025 Order clearly violates the second limitation imposed by the Court in
TC v SC (supra). Applicant therefore asserts that a ‘ parenting coordinator and/or
mediator would have been a more appropriate appointment to resolve disputes
between the parties now that they are divorced.”
[18] Applicant submitted that it is in the interests of justice for leave to appeal to be
granted to determine whether a Court is empowered to appoint a curator ad
personam to a mentally sound child since it has far-reaching consequences not only
for Mrs K[...] and the K[...] children but also parties in similar high-conflict divorces.
[19] Respondent submitted that the appointment of the curator ad personam, with
the powers granted to her, falls squarely within the powers of this Court and the
provisions of the Section 6(4) of the Children’s Act 38 of 2005 (“the Children’s Act”)
which mandates a conciliatory approach, and provides that:
In any matter concerning a child-
(a) an approach which is conducive to conciliation and problem -solving
should be followed and a confrontational approach should be avoided;
and
(b) a delay in any action or decision to be taken must be avoided as far as
possible.
[20] Respondent argued that the order under appeal provides for this on an
ongoing basis through the intercession of the curator ad personam, and through the
mandatory dispute resolution clause designed to promote mediation and avoid
further litigation between the parents . Respondent noted that Section 7(1)(n) of the
Children’s Act determines that whenever a provision of the Act requires the best
interests of the child standard to be applied, the Court must consider which action, or
decision would avoid or minimise further legal or administrative proceedings in
relation to the child. It was therefore submitted that these provisions were properly
applied when granting the Order.
[21] Respondent argued that Section 28(4) of the Act authorises a Court to
consider the best interests of the child, and any other fact that should, in the opinion
of the Court, be considered. In terms of this section, the Court had to consider the
fact that there had been numerous assessments and reports, and that the curator ad
litem took account of all this material when making her recommendations to the
Court. Respondent contended that a nother Court would not have conducted itself
differently. Respondent further contended that the applicant had complied with the
Order after it was granted and has acquiesced to the Order, and that the doctrine of
peremption precludes her from proceeding with her application for leave to appeal.
[22] With regard to the contents of parenting plans, respondent referred to the
provisions of section 33 (2) of the Children’s Act which provides:
“If the co-holders of parental responsibilities and rights in respect of a child are
experiencing difficulties in exercising their responsibilities and rights, those
persons, before seeking the intervention of a court, must first seek to agree on
a parenting plan determining the exercise of their respective responsibilities
and rights in respect of the child.”
[23] Respondent argued that section 33(3) provides that a parenting plan may
determine any matter in connection with parental responsibilities and rights, including
contact between the child and any other person. This wide wording authorizes the
Court to insert structures to regulate the exercise of parental responsibilities and
rights through third parties (such as panels of experts, or even a curator ad
personam).
[24] Respondent noted that Section 33(5) provides that:
In preparing a parenting plan as contemplated in subsection (2) the parties
must seek-
(a) the assistance of a family advocate, social worker or psychologist; or
(b) mediation through a social worker or other suitably qualified person.
[25] Respondent submitted that by the time the Order under appeal was made, the
parties had the benefit of input from the Family Advocate, the family counsellor, the
children’s psychologists, social workers, and extensive mediation by the curator ad
litem. Respondent emphasized that the views of all the professionals resonate with
each other, in particular , the dire need, in the interests of the children, to create
mechanisms to minimise conflict between the parents. According to respondent
these avenues have been exhausted, hence the time was ripe for the Court to make
the Parenting Order.
[26] Respondent emphasised that conventional parenting coordination has failed.
Respondent noted that Section 28 (1) of the Children’s Act also expressly authorises
the Court to order a restriction of parental responsibilities and rights. Respondent
averred that to the extent the applicant considers her rights to be restricted, the
Court was empowered to do so, and this power was exercised appropriately and
proportionately. Respondent noted that the High Court, as upper guardian of all
minor children, bears a duty to ensure that judicial processes do not prejudice a
child’s welfare.
[27] Respondent argued that when regard is had to the circumstances surrounding
the granting of the Order, the proper fulfilment of the statutory requirements, and the
proper exercise of the Court’s statutory powers, as well as the time, expertise and
consultation that went into the crafting of the Court’s Order, that no other Court
would find that the terms thereof are not “satisfactory or the best that can be effected
in the circumstances” . Respondent contended that the Court’s reasoning for the
appointment of a curator ad personam cannot be faulted.
[28] In my view, t he applicant’s contention that the Court Order empowers the
curator ad personam to make directives which have the effect of amending the
parenting plan is misguided. It is evident that t he Order only allows for the
intervention of the curator ad personam if the parties are unable to agree on issues
impacting on the minor children , which decision may be taken on review. T he
primary function of the curator ad personam is to “ make decisions in the children’s
best interests in the place and stead of the parents in circumstances where a joint
decision is required but the parents do not agree” (clause 1.2 of the Powers).
[29] In light of the extensive investigation, expert reports, consultations, time and
energy that went into crafting the parenting plan that was made an Order of Court, in
consultation with both parties (who were afforded a full opportunity to comment and
provide alternative wording), it is difficult to conceive how another Court, on the
same facts, bearing in mind the same levels of conflict and the same documented
harm to the minor children, could come to a different conclusion.
[30] Notably, Mrs K[...] has not been able to present a suitable alternative to a
curator ad personam to assist with the dysfunctional co-parenting relationship.
Previous parenting coordinators resigned particularly after Mrs K[...] rendered it
impossible for them to fulfil their functions . I am satisfied that the appointment of a
curator ad personam to the minor children was not only necessary but is also the
only solution that would be in the best interests of the minor children.
[31] In the event that this Court had erred in appointing a curator ad personam , I
am of the view that any relief sought if leave to appeal should be granted will be a
brutum fulmen. If leave to appeal is granted, it will not dispose of the real issues in
dispute in this matter. The parties are unable to co -parent without the intervention of
the Courts and professionals. Co-parenting and decision -making in respect of the
minor children is dysfunctional and immobilized to the detriment of the minor
children. Granting leave will serve no practical purpose to promote the best interests
of the minor children. At best the designation of the curator ad personam
may be converted to a Family Coordinator, Mediator or Parenting Co -ordinator
which will not resolve the real issues between the parties. The Family Advocate
pleaded that the children should not be subjected to further litigation between the
parties, and no further assessments of the minor children be conducted. However,
the conflict has escalated.
[32] The children have been assessed by more than 20 expert s, amicable
parenting coordination is impossible, multiple parenting co-ordinators have resigned,
the experts have recommended no contact between the parties due to hostilities ,
the parties are still embroiled in civil and criminal litigation and the minor children are
currently suffering mentally and physically due to the incessant conflict. Mrs K[...]’s
assertion that a ‘ parenting coordinator and/or mediator would have been a more
appropriate appointment to resolve disputes between the parties now that they are
divorced” is disingenuous. All the parenting co coordinators found the
situation untenable and opted out.
[33] Consequently, any interference with the Order of this Court will not be in the
interests of the mino r children. As stated by the Court appointed curator ad litem ,
“the risk and opportunity for parental conflict needs to minimise by way of a highly
structured court order which eliminates room for debate and power struggles
between the parents, as far as possible.”
[34] Section 18(1) of the Superior Courts Act provides that “unless the court under
exceptional circumstances orders otherwise, the operation and execution of a
decision which is the subject of an application for leave to appeal or of an appeal, is
suspended pending the decision of the application or appeal .” Section 18(3) requires
a party applying to Court to enforce an order in its favour , despite a pending
application for leave to appeal, to, in addition to showing exceptional circumstances
(as required by section 18(1)), “prove on a balance of probabilities that he or she will
suffer irreparable harm if the court does not so order and that the other party will not
suffer irreparable harm if the court so orders.”
[35] At the time of writing this judgment Mrs K[...] had actively blocked the curator
ad personam to fulfil her mandate to protect the minor children from parental
relationship distress and dysfunction. The Office of the Family Advocate is currently
engaging the parties following a referral by this Court emanating from concerns
raised by the curator ad personam . For purposes of the consideration of this
application for leave to appeal the report of Ms Oosthuizen is annexed hereto
marked “A”.
[36] It is clearly not in the best interest of the minor children to grant an Order in
terms of section 18 since it would be detrimental to the well-being of the minor
children. A structured parenting plan with conflict re solution mechanisms is vital for
the protection of the minor children while any appeal proceedings and litigation are
pending between the parties.
[37] The Order, against which is being appealed, did not result simply from legal
argument on behalf of both sides, upon which the presiding officer then reached a
decision. Rather, the Order is the product of extensive investigation and consultation
by the curator ad litem, who advocated not on behalf of either party, but on behalf of
the children. The Order was crafted based on the best interests of the minor children
after their voices had been heard via a curator ad litem.
[38] If the Order is suspended, there will be no mechanism in place to regulate the
care, contact and decision-making in respect of the minor children, in circumstances
where the curator ad litem has expressly found that the parties are unable to make
decisions in the best interests of the minor children without judicial intervention. If the
Order is suspended, there is no fallback position, previous order, or agreed system
which will regulate the care, contact and decision -making in respect of the minor
children, in circumstances where a decree of divorce has been granted.
[39] The Order appealed against also embeds protections for the children by virtue
of the fact that the curator ad personam must report to the Court in 2028.
Furthermore, because of the high conflict between the parties, it is inevitable that the
Family Advocate will remain involved in this matter. If the parties remain locked in
legal conflict, and the dysfunctional co-parenting continues, the Court may well have
to consider limiting the parental rights of either party as intimated by the Family
Advocate.
[40] I have considered the facts of the matter, and the grounds of appeal in the
Notice of Appeal, together with the submissions made by the parties. I have carefully
reconsidered my judgment and have concluded that the arguments raised by the
Applicant are without merit. I have considered whether the appeal would have
reasonable prospects of success and I am convinced that there are no reasonable
prospects that this appeal would succeed.
[41] It is trite that costs fall within the general discretion of the Court and that
unless exceptional or unusual circumstances exist, costs follow the result. Both
Counsel submitted that costs should follow the result. I am in agreement that this
approach is fair, reasonable and justified under the circumstances.
[42] In the result, the following order is made:
42.1. The application for leave to appeal is dismissed with costs.
42.2 The operation and execution of the decision of th is Court on 11 April
2025 under case number 1092/2020 (with 8498/2020) is not
suspended, as contemplated in section 18(1) of the Superior Courts
Act 10 of 2013, pending the exhaustion of all leave to appeal
applications and all appeal proceedings, in all Courts, including th e
High Court and any Superior Court, and until they are finally
determined.
__________________________________
DEPUTY JUDGE PRESIDENT GOLIATH
Appearances:
For the applicant: Brian Pincus SC
Adri Thiart
Instructed by Carolissen Attorneys Inc.
Ms Simone D Carolissen
For the respondent: Fiona Gordon-Turner SC
Paula Gabriel
Instructed by Abrahams & Gross Inc.
Mr Juan Smuts