IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, JOHANNESBURG)
REPORTABLE: YES
OF INTEREST TO OTHER JUDGES: YES
Case No. 2025-140422
SIGNATURE DATE: 19 May 2026
In the matter between:
HMM Applicant
and
DM Respondent
Summary
Section 29 of the Children's Act 38 of 2005 creates a jurisdiction of convenience .
Section 29 does not exclude the jurisdiction of a court beyond the area of a child's
ordinary residence if that court would otherwise have jurisdiction , and it would be in
the child's best interests for that court to decide any of the proceedings to which
section 29 applies.
JUDGMENT
WILSON J:
1 The applicant, HMM, and the respondent, DM, were in a relationship for seven
years. For much of that time, they lived together. DM says that she was
married to HMM at customary law, but HMM denies this. The parties' son, 0 ,
was born in 2021. Initially, DM and O lived together at the house DM shared
2
with HMM. In 2022, HMM and DM separated. HMM left O with his mother, DM,
at the house they had shared, but it appears from the papers that HMM owned
the house, wished to sell it, and asked DM and O to leave it a few months after
the separation. DM then had to move. She went with O to live in her sister’s
house in Boksburg. In late 2024, however, DM’s sister decided that she
wanted to sell that house. Unable to secure regular employment , no doubt in
large part because she was O’s primary caregiver, and having nowhere in
Johannesburg to live, at the end of 2024, DM decided to leave Johannesburg
to live with her parents in the Eastern Cape. HMM objected to this relocation,
but his efforts to stop it in this court were unsuccessful. DM and O have now
lived with DM’s parents in the Eastern Cape for almost eighteen months.
2 In August 2025, HMM brought this application, in which he sought both interim
and final relief. Oosthuizen-Senekal AJ granted the interim relief, which
entailed the court giving its consent for DM to travel overseas with O for a
short holiday. The final relief HMM sought was that the recommendations of a
practicing psychologist, Dr. D, be made an order of court. After an assessment
of HMM’s and DM’s parental fitness, most of which she conducted while DM
was resident in Boksburg, Dr. D had recommended that, unless DM agreed to
move back to Johannesburg, O should be removed from her primary care, and
sent to live with HMM.
3 For reasons that do not appear clearly from the record, but which must be
connected to the fact that Dr. D provided no more than a superficial
assessment of O’s circumstances after he relocated with DM to the Eastern
Cape, the final relief was postponed until a Family Advocate’s
3
recommendation was made available. That recommendation is dated 27
February 2026, and it relies upon a detailed assessment of O’s current home
environment in the Eastern Cape. The recommendation nevertheless affirms
Dr. D’s original view, and recommends that O be brought to Johannesburg to
live with HMM.
4 HMM now applies to me to have the recommendation in the Family Advocate’s
report made an order of court. DM opposes the application on two grounds.
The first is that I have no jurisdiction over O, because he is ordinarily resident
with DM in the Eastern Cape. The second is that the Family Advocate’s report
is not rationally connected to the facts on which it relies. Because of the way
this application has developed, the relief now sought is quite different from the
relief HMM originally set out in his notice of motion. The interim relief was
granted and the overseas trip has presumably taken place. In addition, nobody
now suggests that Dr. D’s report should be endorsed, which is the final relief
HMM initially sought.
5 Ordinarily, I would be disinclined to entertain a case brought on a notice of
motion which frames relief that is no longer sought , and where the parties’
affidavits are structured primarily around that relief. However, in this case, the
main pleaded issue throughout has been whether O should reside primarily
with HMM in Johannesburg or with DM in the Eastern Cape. Dr. D’s report ,
the Family Advocate’s recommendation, and the reports underpinning that
recommendation are merely evidence that tend to prove the facts relevant to
that issue. Nobody suggests that the evidence is incomplete. There was no
application to postpone the matter. Nor did either party seek to adduce new
4
facts or argument that would have necessitated such a postponement. Subject
to DM’s objection to my jurisdiction, both parties agree that the issue before
me is whether O’s primary residence should change, and they are content for
me to decide that issue. It also seems to me that O’s best interests require
that I settle that issue sooner rather than later. For these reasons, I will
entertain the application on the issues as the parties framed them in argument.
Jurisdiction
6 I deal first with the question of jurisdiction. Section 23 of the Children’s Act 38
of 2005 provides that “[a]ny person having an interest in the care, well-being
or development of a child may apply to the High Court” for an order granting
them rights of contact with or care of that child. Section 29 of the Act states
that an application under section 23 “may” be brought before a High Court
“within whose area of jurisdiction the child concerned is ordinarily resident”.
Mr. Raqowa, who appeared for DM, argued that, since I have no jurisdiction
over the Eastern Cape, where O ordinarily resides, section 29 of the Act
deprives me of the power to entertain HMM’s application.
7 I do not think that is correct. The use of the word “may” indicates that section
29 does not exclude the jurisdiction of another court that would otherwise have
it. However, the provision must obviously be constructed in its textual setting,
having regard to the purposes of the Act as a whole. Read in that light, and
for the reasons that follow, I think that section 29 establishes a jurisdiction of
convenience. It creates the general rule that an application for rights of care
and contact should be brought in the High Court having jurisdiction over the
area of the child’s ordinary residence. But section 29 does not preclude a
5
litigant from approaching a court beyond the area of a child’s ordinary
residence if that court has some other basis to exercise jurisdiction, and it
would be in the child’s best interests for that court to decide any of the
proceedings to which section 29 applies.
8 Jurisdictional questions have in the past caused problems where interim
orders for care and contact with a child have been granted in one provincial
division and then varied in another. In that context, the Supreme Court of
Appeal has warned that “reliance on formalism and a resort to inflexible rules”
is to be discouraged (FS v JJ 2011 (3) SA 126 (SCA) (“FS”), paragraph 38). It
seems to me that this is the way in which section 29 should be approached.
Section 29 ought also to be approached in light of the overriding constitutional
injunction that “[a] child’s best interests are of paramount importance in every
matter concerning the child” (section 28 (2) of the Constitution, 1996). The
implementation of that principle is one of the main objects of the Act itself
(section 2 (b) (iv) of the Act).
9 For these reasons it seems to me that section 29 of the Act should be
interpreted permissively. An application regarding care and contact with O
“may”, of course, be brought in the Eastern Cape, but that begs the question
of whether, if there is some other basis on which I would have jurisdiction, and
it would be in O’s best interests that I exercise that jurisdiction, the Act
nevertheless prevents my doing so. I do not think section 29 of the Act can be
read in that way. Such a reading would be at odds with its purposes, and more
narrow than the text of the provision itself requires. A supple and flexible
6
interpretation is required, at least insofar as it is necessary to give effect to the
overriding best interests standard.
10 There are decisions that suggest the contrary (see, for example, BLFM v GJM
[2026] ZAGPJHC 140 (9 February 2026), paragraph 7; JS v WF [2020]
ZAGPPHC 350 (10 July 2020) paragraph 31 and SH v MLH 2026 (1) SA 615
(ECGq), paragraphs 45 to 48), but everything they have to say on the point
can be traced back to the judgment of Goosen J in NAN v CN [2017]
ZAECPEHC 61 (14 December 2017) (“NAN”). In that matter, the court was
dealing with an application to vary a divorce agreement by terminating the
parental rights of a father over a child ordinarily resident in New Zealand. The
application was dismissed on the basis that the termination was not in the
child’s best interests.
11 At paragraph 22 of his decision, Goosen J stated that “the terms of section 29
[of the Children’s Act] are clear and unambiguous and, in my view, serve as
an overriding determinant of jurisdiction in circumstances where a court is
called upon to terminate, suspend or circumscribe the parental rights and
responsibilities of a parent. The requirement is that the minor child must be
ordinarily resident within the area of jurisdiction of the court. This is a territorial
limitation of jurisdiction”. Read on its own terms, and in isolation from the rest
of the judgment, I do not think this proposition can be correct. There is nothing
section 29, or in the Act itself, which bespeaks such a rigid jurisdictional
regime.
12 However, there is good reason to believe that Goosen J did not mean to
conclude that the Act intended to create such a regime. In the first place,
7
Goosen J explicitly declined to decide the jurisdictional issue, since the order
sought from him was not in the child’s best interests, and would be refused on
that basis (NAN, paragraph 25). Secondly, the jurisdictional dictum in
paragraph 22 of NAN must be read in the context of the judgment as a whole.
Once that context is introduced, it is difficult to cast NAN in support of the
inflexible jurisdictional regime for which it is so often cited as authority. NAN
was an application to vary a divorce agreement made an order of the court in
which Goosen J sat. He was asked to vary the divorce agreement by
terminating the father’s parental rights. Goosen J found that such a variation
was not in the child’s best interests, and he refused the application on that
basis. Goosen J’s apparently rigid take on section 29 of the Act would normally
have precluded him from reaching that conclusion, since the absence of
jurisdiction would have ended the case before the question of the child’s best
interests arose. But Goosen J nevertheless decided the matter on its merits.
Section 29 of the Act appeared to present no obstacle to him doing so,
precisely because, in his view, dealing with and dismissing the application was
in the child’s best interests, and the court in which Goosen J sat could exercise
its jurisdiction as the court that granted the divorce order.
13 Accordingly, I do not think that NAN can be read to interpret section 29 as
precluding the exercise of a jurisdiction a court would otherwise have, if the
exercise of that jurisdiction is in the child’s best interests. This conclusion, it
seems to me, is consistent with the text, context and purpose of the Children’s
Act, and with the Supreme Court of Appeal’s exhortation in FS to avoid
technicality and inflexibility where these would obstruct an proper enquiry into
a child’s best interests.
8
14 In this case, I think that there is at least one basis on which I would ordinarily
have jurisdiction to determine O’s best interests. HMM lives in Johannesburg
and O was born here. In terms either of section 21 of the Act (if he was not
married to DM) or section 20 (if he was), HMM acquired his parental rights and
responsibilities over O in Johannesburg when O was born. On that basis alone
he would ordinarily be entitled to engage my jurisdiction.
15 It is nevertheless necessary to consider whether it would be in O’s best
interests for me to decide where his primary residence should be. Nobody
suggests otherwise. An extensive investigation has been carried out, involving
the offices of the Family Advocate in the Eastern Cape, and in Johannesburg.
Nobody wishes to supplement their reports, or to adduce any other
information. I am satisfied that the material before me is sufficient to decide
the question. While DM has struggled to obtain legal representation, no doubt
due in part to the distance at which she now lives from Johannesburg, her
counsel appeared before me and made full and helpful submissions on her
behalf. I cannot see what O would have to gain from my refusing jurisdiction,
only to put the parties to the effort and expense of starting the application
afresh in the Eastern Cape in circumstances where they agree that, but for the
technical objection to my jurisdiction, the matter is ripe for determina tion
before me.
16 Accordingly, the objection to my jurisdiction fails.
O’s primary residence
17 HMM relies squarely on the Family Advocate’s report that recommends that
O be removed from DM’s care and brought to live with him at his home in
9
Johannesburg. DM criticises the report as insufficiently reasoned. In particular,
DM says that the report’s conclusions are not rationally connected to the
evidence the Family Advocate herself gathered about O’s living circumstances
in the Eastern Cape.
18 In my view, DM’s criticisms are well-made. The Family Advocate attaches little
or no weight to the undisputed facts that O is settled and well-cared for in the
Eastern Cape, that he has a very strong relationship with DM, and that there
is no reason to believe that DM is not fit to provide him with the love, practical
care, and material support he needs. The Family Advocate provides no reason
to suppose that it could be in O’s best interests to be uprooted from the home
DM has made for him with her parents in the Eastern Cape. O is of a tender
age. Other things being equal, what he needs most is the stability of a loving
family, a consistent routine, access to education and an adequate base of
material resources to support his needs. O has all that in the Eastern Cape.
19 If O were brought to Johannesburg, he would have to be separated from DM,
who has nowhere suitable to live in Johannesburg, no means of support here,
no job and no concrete prospect of getting one. There is no identifiable
advantage to O in being subject to such a traumatic upheaval. HMM is
considerably wealthier than DM, but that in itself does not justify O’s relocation.
The appropriate balance of considerations may in future change, when O is
more mature, and more able to cope with a change in his residence. There
may also come a time when his grandparents are unable to assist with his
care (they are presently both reliant on chronic out-patient medical care).
Perhaps O’s residence will have to be revisited then. But, for now, I am
10
satisfied that O is happy and well provided for where he is, and that his
relocation to Johannesburg could only imperil his well-being and development.
In what follows, I give my reasons for reaching these conclusions.
The status of the expert reports upon which HMM relies
20 HMM relies primarily upon the Family Advocate’s conclusions. The Family
Advocate, however, places some reliance on Dr. D’s report. HMM supports
this approach, and any evaluation of the conclusions the Family Advocate
reaches must engage with Dr. D’s report, at least insofar as the Family
Advocate relies upon it.
21 It is nevertheless important to emphasise that I am not bound by Dr. D’s report,
or by the Family Advocate’s recommendation. I am entitled and obliged to
satisfy myself that the conclusions reached in the report and the
recommendation are the correct ones. This duty arises both from the fact that
the question of what is in O’s best interests is ultimately for me to decide, and
from the well-known principles applicable to reliance on expert evidence of
any nature. A court may not, and in fact must not, adopt expert conclusions
merely because they commend themselves to common sense as the Judge
sees it, or because they are consistent with the Judge’s evaluation of other
relevant evidence. Instead, a court must satisfy itself that the expert
conclusions drawn in evidence placed before it are based on admissible facts,
and that those conclusions can reasonably be drawn from those facts (see
Coopers (South Africa) (Pty) Ltd v Deutsche Gesellschaft für
Schädlingsbekämpfung MBH 1976 (3) SA 352 (A), 371F-H and MV Pasquale
Della Gatta 2012 (1) SA 58 (SCA), paragraph 26).
11
22 Both Dr. D’s report and the Family Advocate’s recommendation obviously
have an admissible factual substrate. They either conducted or relied upon
interviews with both HMM and DM. Dr. D did not visit DM in the Eastern Cape,
but she visited DM and O when they were still living in Boksburg. The Family
Advocate’s recommendation relied on reports from social workers who directly
observed HMM and DM separately interacting with O in their respective home
environments in Johannesburg and the Eastern Cape. The difficulty is instead
that Dr. D’s and the Family Advocate’s conclusions are not sustained by facts
marshalled in support of them. I deal first with Dr. D’s report.
Dr. D’s report
23 Dr. D was generally positive about both HMM’s and DM’s capacity to care for
O, while noting the fact that HMM is significantly more able to pay for O’s
material needs than DM. Nevertheless, Dr. D, noted “concerns about both
parents’ mood and frustration tolerance capacity” and particularly about DM’s
psychological vulnerability (paragraph 333). Dr. D ultimately concluded that
“[s]hared residency would be optimal” but accepted that “current geography
precludes a simple alternating weeks model” (paragraph 325).
24 Given that she had to choose which parent should have primary residence,
Dr. D recommended that O lives with HMM, while DM would have “as much
contact as possible” with him (paragraph 336). That choice appears to have
been driven by three observations: first that “[d]uring an interactional analysis
and home visit [HMM] managed and regulated [O] better” (paragraph 334);
second, that DM’s “psychological vulnerability” was “a driver influencing her
decision-making regarding contact between [O] and his father” (paragraph
12
333); and that there “were aspects of [DM’s] attunement and responsiveness
to [O] that seemed suboptimal” (paragraph 344). On reading Dr. D’s report as
a whole, it also appears likely that her conclusions were influenced by her
suspicion that DM was deliberately preventing HMM from having contact with
O (paragraphs 326, 328 and 330).
25 There are two basic flaws in Dr. D’s report. The first is the report’s failure to
draw the obvious link between DM’s psychological vulnerability and her
precarious position in Johannesburg. Having been forced to leave the home
she shared with HMM, DM was left to care for O at her sister’s house without
any obvious means of support. It is plain from the papers that HMM is not
prepared to provide for any of DM’s material needs. Nor can I say with any
confidence that he has provided adequately for O’s needs while O has been
under DM’s primary care. It was plainly a lack of material support that drove
DM to relocate to the Eastern Cape in the first place.
26 Dr. D’s report fails to consider the extent to which DM’s psychological fragility
was simply a function of her economic and social precarity. It seems to me to
be important to avoid recasting what is essentially a practical economic
problem as a pathology afflicting the party that has to deal with it. This is
especially so in the context of disputes about care of and contact with a child.
The more economically vulnerable parties in such disputes are almost always
women, whose responses to their situation must be assessed in light of that
vulnerability. It is too easy to jump to the conclusion that someone lacks
psychological stability without considering whether the dominant explanation
for their anxiety and any “suboptimal” behaviour that might flow from it is the
13
material vulnerability caused by the breakdown of a relationship which led to
the custody dispute. If Dr. D was attuned to this reality, her report shows no
evidence of it. In any event, whatever psychological fragility can fairly be
attributed DM, Dr. D did not consider that it would prevent DM and HMM
having shared primary residence with O had DM been able to stay in
Johannesburg. It was, accordingly, at best, a marginal consideration.
27 The second major flaw in Dr. D’s report is that it expressed a view without Dr.
D having acquainted herself with O’s home environment in the Eastern Cape.
The report is dated 17 September 2025. At that point, O had been living in the
Eastern Cape for about nine months. Dr. D’s conclusions, however, are based
on a home visit done while DM was still living with O in Boksburg. Dr. D did, it
appears, see DM in her office in Johannesburg on 4 May 2025, and she
conducted an interview with DM on 10 June 2025. Ms. de Wet, who appeared
for HMM before me, accepted, however, that Dr. D had not visited DM and O
in the Eastern Cape. It does not seem to me to be appropriate to rely on a
report based on an assessment of an environment in which O and DM no
longer live, especially since there are indications, to which I have already
adverted, that DM’s supposed unsuitability as a sole custodial parent were
intimately linked to her lack of a settled home in Johannesburg. For a fuller
picture of O’s present home environment, therefore, it is necessary to turn to
a further report based on such a visit.
The report of the Eastern Cape family counsellor
28 The Eastern Cape family counsellor, a Ms. S, visited DM and O at their home
in the Eastern Cape on 10 February 2026. Ms. S is a registered social worker,
14
and her observations constitute the most up-to-date independent picture of
O’s circumstances and well-being.
29 O is attending pre-school. According to his teacher, albeit in a view given via
Ms. S, O is doing well at school. He appears to be well-cared for. He interacts
well with his peers. He enjoys being at school. He has reached his age-
appropriate developmental milestones. DM takes an interest in his progress
(paragraph 7.2.1).
30 Ms. S. observed O’s interactions with DM, and saw no cause for concern:
“[t]he overall interaction was good and no concerns were observed”
(paragraph 7.3.5). O said that “he liked playing with his mother” (paragraph
7.3.6). O was “well-mannered and received boundaries from [DM] with a good
attitude”. He had “an easy temperament”. DM “presented an authoritative
parenting style” (paragraph 7.3.8). O “loves his mother a lot”. He “likes staying
with at home with his mother and his grandfather” (paragraph 7.4.7) . O
nevertheless enjoys visiting HMM and obviously looks forward to doing so
(paragraph 7.4.5). O has friends in his local area, whose houses he visits
(paragraph 7.4.8).
31 While Ms. S refrained from making any concrete recommendation about
where O should live, her overall evaluation is highly suggestive. O “has a good
and close relationship” with DM, who “has always been his primary caregiver”.
DM and O have “a positive and comfortable relationship”. O is “happy and
bubbly” (paragraph 9.1.1). DM “fulfils her responsibilities the best way she can
and she receives full support and assistance” from her family. DM accepts that
O loves HMM and that HMM loves O. DM wants O and HMM to have a close
15
relationship (paragraph 9.3.2). DM plainly “has the capacity to care and
provide for O’s needs”. Ms. S was unable to identify any risks to O’s well-being
(paragraph 9.1.3). O was “safe and secure in his mother’s care and at the
maternal home” (paragraph 9.1.4).
32 The picture Ms. S’s report paints of O and DM’s relationship is inconsistent
with Dr. D’s portrayal. It suggests that O is happy and settled in the Eastern
Cape; that DM is a competent and loving mother; that all his needs are met;
that O is at school and doing well there; that O is enjoying the care of an
extended family; and that O has formed relationships with other children who
he readily identifies as his friends. The obvious explanation for this
inconsistency is that Dr. D’s report was compiled when DM and O were in a
state of flux, having been removed from the home they shared with HMM, and
DM being unable to support herself or O in Johannesburg. Ms. S’s report,
however, presents DM and O as happy and settled in the Eastern Cape, with
all of O’s needs met. That can only be the result of DM’s apparently wise
decision to take O to live with her parents.
The Family Advocate’s recommendation
33 There is, of course, much else in the reports underpinning the Family
Advocate’s recommendation. But none of it is directly relevant to my decision.
I accept that HMM is capable of providing a happy and comfortable home for
O in Johannesburg, which is upshot of the home visit conducted by the
Johannesburg family counsellor. I decline to take a view on the myriad
disputes between DM and HMM faithfully recorded in Dr. D’s report and in the
reports of the two family counsellors. I do not know where the truth lies on
16
these issues, since HMM’s and DM’s views are filtered through others, and
are impossible to test on the papers before me. HMM obviously regards DM
with profound suspicion. He thinks that she is using O as a bargaining chip to
extract money from him – that she is intent on exchanging contact with O for
maintenance to which he believes she is not entitled . HMM is critical of the
way in which DM is providing for O’s needs in the Eastern Cape. He considers
that his superior wealth places him in the best position to care for O. For her
part, DM paints HMM as a controlling, interfering figure, who abandoned her
and O after their separation, and who seeks a relationship with O only on his
own terms. Nonetheless, DM says that she has no difficulty with HMM having
contact with O, but that the contact must be regular, and structured having
regard to O’s school commitments. There has plainly been some contact since
DM and O moved to the Eastern Cape, but I cannot assess how regular it has
been. DM would, no doubt, welcome regular and dependable financial support
from HMM, but I am unable to assess whether she gets it and to what extent
she may be entitled to it.
34 In any event, the only relevant question is whether, given that DM and O are
happy and settled in the Eastern Cape, there is anything to be gained from
changing O’s primary residence at this stage. The main problem with the
Family Advocate’s recommendation is that it does not engage with this
question. It proceeds as if HMM and DM are freshly separated, and the real
question is who should be awarded custody against a background of shared
primary residence.
17
35 Those are not the facts before me. For at least the last three years, O has
been under DM’s exclusive primary care. For the last eighteen months, O and
DM have enjoyed a happy and settled life in the Eastern Cape. The Family
Advocate’s recommendation acknowledges these facts, but attaches virtually
no weight to them. It places extensive reliance on Dr. D’s report without
acknowledging just how out-of-date that report is. It virtually ignores Ms. S’s
report. It blandly concludes that O’s relocation to the Eastern Cape “is not in
the child’s best interests” (paragraph 69), while attaching no significance to
the reality that the relocation has now happened. The question is not whether
O should move to the Eastern Cape. The question is whether there is anything
to be gained from forcing him to move back to Johannesburg after a year-and
a-half of living there. On that point, the Family Advocate appears to accept
that HMM’s superior financial position makes him the better caregiver. I cannot
agree that this is all there is to the question.
36 A final but important unexplored issue in the Family Advocate’s
recommendation is the relative ease with which either parent would be able to
exercise any rights of contact they may ultimately have. On the papers, it
seems clear that DM lacks the resources to travel regularly to Johannesburg
to see O, but HMM labours under no such incapacity. It is well within his means
to travel regularly to the Eastern Cape, or to bring O up to Johannesburg.
During argument, the probability that moving O to Johannesburg would risk
depriving O of regular contact with DM was all but conceded when HMM
tendered to pay for DM’s reasonable travel costs to visit O in Johannesburg if
he relocates here. That was obviously a step in the right direction, and I mean
18
no criticism of HMM when I point out that this issue received no consideration
at all in the Family Advocate’s recommendation.
37 For all these reasons, I decline to endorse the Family Advocate’s report. It
asks the wrong questions and comes to a predictably flawed answer.
38 In my view, the best analysis is that O should remain where he is for the time-
being. There is no warrant to uproot him from an environment in which he is
now happy and settled, and to remove him from the only primary caregiver he
has ever known. The application to make the Family Advocate’s
recommendation and order of court will be dismissed.
Contact
39 During argument, it was conceded that there is no regular and predictable
contact regime in place which acknowledges the fact of O’s primary residence
in the Eastern Cape. Absent a one-sided analysis of the parties’ competing
contentions about HMM’s conduct to date, which I decline to adopt, I have no
reason to doubt that HMM is a loving father and that O wants and needs as
much regular contact with him as is reasonably possible. It is in O’s best
interests that his contact with HMM be placed on a clear and regular footing
as soon as possible. Now that I have ruled that O’s residence will remain in
the Eastern Cape with DM, I will invite the parties to agree an appropriate
regime of contact between O and HMM. If no such regime can be agreed, the
parties will be invited to advance their competing submissions on HMM’s
contact with O, after which I shall issue an order providing for a fair and regular
regime of contact between them.
Order
40 Accordingly -
40.1 The application to have the Family Advocate's recommendation
made an order of court is dismissed.
40.2 It is directed that O's primary residence will remain with the
respondent at their home in the Eastern Cape.
40.3 The parties are invited, by no later than 5 June 2026, to submit an
agreed order regulating the applicant's contact with 0, for as 101119 as
O's primary residence remains in the Eastern Cape.
40.4 Failing an agreed order, each party is directed to file written
submissions and, if necessary, an affidavit of no more than 20 pages,
setting out their preferred regime of contact between O and the
applicant, by no later 13 June 2026.
40.5 Each party will pay their own costs to date.
SD J WILSON
Judge of the High Court
This judgment was prepared by Judge Wilson. It is handed down electronically by
circulation to the parties or their legal representatives by email, by uploading it to the
electronic file of this matter on Caselines, and by publication of the judgment to the
South African Legal Information Institute. The date for hand-down is deemed to be 19
May 2026.
HEARD ON:
DECIDED ON:
7 May 2026
19 May 2026
19
20
For the Applicant: L de Wet
Instructed by ST Attorneys
For the Respondent: Z Raqowa
Instructing Setlhako Attorneys Inc