Introduction
[1] This is an urgent application in which the applicant, SIP, seeks interim guardianship of
two minor children, S, now 11 years old, and J, now two and a half years old, pending
the outcome of a forensic psychological investigation. In addition, the applicant seeks
an order that the respondent's contact with the children be supervised, that she undergo
random drug and alcohol testing, and that the costs of those interven tions be tendered
by him.
[2] The respondent, ASR, opposes the application on the merits and in limine, challenges
urgency, and brings a counter -application in which she seeks, inter alia , a regulated
contact regime, interim maintenance for the children and for herself on a rehabilitative
basis, and ancillary interdictory relief.
Background
[3] The parties were in a non -marital romantic relationship from approximately 2020 and
were never married. They are the biological parents of J. S is the biological daughter of
the respondent and one JJJ. Accordingly, the applicant is not her biological father,
though he has acted in loco parentis for approximately six years. However, S informed
me that she still has contact with her biological father approximately twice a month when
he collects her over a weekend and takes her to do something together and then drops
her home.
[4] The parties separated in or about February 2026 following the respondent ’s admission
to and discharge from Life Glynnview Psychiatric Hospital, where she was treated from
1 to 13 February 2026 for Substance Use Disorder (alcohol, cannabis) and a Cluster B
personality presentation. She has been in remission from cervical cancer since late
2024.
[5] After the separation, the applicant relocated to his parents ’ home. The respondent
remained in the parties ’ rented home in the same suburb , together with the two minor
children.
[6] The applicant describes a pattern of volatile and concerning conduct on the part of the
[6] The applicant describes a pattern of volatile and concerning conduct on the part of the
respondent following the separation. This includes abusive WhatsApp communications,
interference with contact, leaving the children unsupervised in the care of a domestic
worker while she socialised overnight, erratic conduct during J’s hospitalisation for a life-
threatening RSV infection in April 2026, failure to take the children to school for three
consecutive days, and what he characterises as threats to open criminal charges of rape
of S against him unless he pays her money.
[7] The matter first came before me on 12 May 2026. At this stage, the respondent was not
represented but she nevertheless addressed me. She openly admitted that she had
previously worked in the sex trade and stated that it was in the course of that work that
she met the applicant. She informed me that before she met the respondent she did not
smoke cannabis and it was the applicant who got her onto it. She explained that she
had booked herself into the clinic as she wished to stop smoking cannabis, but insisted
that the applicant continues to smoke it.
[8] The respondent indicated that she wished to try and obtain legal aid and to answer the
application. I accordingly postponed the application to enable the respondent to do so
and to allow the applicant to reply.
[9] The matter then came before me in the urgent court on 5 June 2026. At this hearing, I
was pleased to see that the respondent was represented by Mr Morland. He explained
that he had been in court at the last hearing and that the respondent had approached
him to represent her. He arranged for an attorney to act pro amico and to brief him, also
on a pro amico basis, and they prepared the answering papers on the respondent’s
instructions.
[10] In the papers now before me, t he respondent vigorously contests the applicant ’s
characterisation of events. She provides significant contextualising background ,
although counsel for the applicant argued that this was solely to obtain the sympathy of
the court. The respondent states that she was exploited as a young woman into sex
work following the murder of her father in 2014. She explains that she met the applicant
as a client at a gentlemen’s club in September 2021 and they formed a relationship. The
as a client at a gentlemen’s club in September 2021 and they formed a relationship. The
applicant then apparently induced the respondent to leave sex work on the strength of
promises of a permanent relationship and full financial provision for her child, S. They
then had a child together, J, who is now two years old.
[11] She contends that this application was brought opportunistically, with severely
truncated timelines, in circumstances where the applicant knew she could not afford
legal representation. She makes the profoundly serious allegation that the applicant,
during the relationship, touched S on her genitalia, mistaking the child for the
respondent, and that a church counsellor urged her to remain silent in order to preserve
the applicant’s financial support. It is not clear whether this incident, if it indeed occurred,
is the source of the allegations of rape made by the respondent against the applicant.
The respondent also insinuates in her papers that the applicant has a fetish for young
girls and asked her to dress up like a school girl when she was still working as a sex
worker.
[12] This is an extremely serious allegation with dire consequences that, if untrue, could
potentially ruin the applicant’s life. This is not an allegation that should be lightly made,
and was certainly not something raised by S in her interview with me. It should also not
be something used to extort money from the applicant. What militates against the
respondent’s contentions is that since their separation, the respondent requested the
applicant to look after the children for fi ve days and would not have done so had she
thought that the applicant could not be trusted with S.
[13] I must mention, however, that S informed me that the applicant wished to continue
bathing her with her brother , but she did not feel comfortable with this as her body is
transitioning into that of a woman and she wants some privacy when it comes to her
developing body. She indicated that the applicant was not happy about this at first but
has now accepted it and respects her privacy.
[14] The applicant’s contentions that the respondent screams profanities at him in the
presence of the children is also concerning. She seems not to be able to control her
immense hurt, anger and jealously caused by the applicant leaving her and now wanting
to take her children, yet continuing to control her. This is evident in the fact that the
applicant has left her without a car and refuses to provide her with money of her own to
do with what she chooses under the pretext that should he provide cash to her, she will
use it to buy alcohol or drugs. S assured me that her mother no longer smokes cannabis
use it to buy alcohol or drugs. S assured me that her mother no longer smokes cannabis
and states that although she consumes alcohol, she is not abusing it.
[15] The applicant’s family owns a number of Spar franchises in Pretoria and he drops food
a groceries for the respondent and the minor children at the respondent’s residence.
The respondent is forced to request the applicant to order e -hailing services (Bolt) for
her if she needs to take the children anywhere. Instead of fixing the respondent’s car so
that she can take the children to school, the respondent retains control by collecting the
children from the respondent and taking and fetching them from school, after which he
drops them at home again.
[16] Although the applicant attends to all of the children’s financial needs, he provides no
financial assistance to the respondent. This is said knowing that the applicant has
continued to pay the rent al and the municipal charges for their former home and has
continued to drop food parcels at their former home, all of which benefit the respondent.
But this is not benevolent; it is a byproduct of his desire to provide for the children. What
he seeks to achieve, however, is to have the children removed from the respondent and
should he be successful in this endeavour, I have little doubt that without a court order,
he would cease to provide for the respondent.
[17] The view I hold is supported by the fact that since leaving the respondent, the applicant
removed her from his medical aid, in the face of her cancer diagnosis, and must have
been aware that with such a diagnosis, any further cover she may obtain will be with
heavily loaded premiums to assuage the risk. In the course of argument, the applicant’s
counsel, Ms Randall, sought to persuade me on instructions from her client that this was
at his parent’s insistence as the medical aid is paid through the businesses. This is not
a satisfactory explanation.
[18] This controlling behaviour was, according to the respondent, prevalent during the time
that they were previously living together. I get a sense from the papers , and the clearly
the irrational and impulsive behaviour of the respondent that she feels disempowered, ,
desperate, jealous and discarded. I also sense an emotional immaturity and lack of
judgment in the respondent that needs addressing.
[19] Much is made in the papers of the fact that the respondent has now returned to sex
work. She insists this is because she had no choice as the applicant had ceased
providing for her financially and with her limited education, this is the only reasonably
paid work that she is capable of doing. The applicant disputes this a nd says that she
paid work that she is capable of doing. The applicant disputes this a nd says that she
previously had a beauty therapy business that she only ceased as she had a fight with
her partner in the business. Ms Randall sought to persuade me that the respondent has
pursued this line of work out of choice and for money, and not because she has no
alternative. I do not accept this. The respondent says she earns R3000 per week (that
is R12 000 per month) which evidences that this is not a profession pursued for money,
but rather out of desperation. If the respondent is qualified as a beautician as alleged
by the respondent, the reason for her not seeking employment in this field needs to be
explained and investigated.
[20] Of further concern to me is that S informed me that it was the applicant who informed
her what the nature of the respondent’s work was. This was denied by the applicant. If
indeed true, this could only be to be vindictive and/or to alienate S from her mother; the
applicant must have known that this could not have been in S’s best interests.
[21] During my interview with S she volunteered that the applicant sought to persuade her to
live with him as he (or his parents) had a much nicer house and he would buy her
whatever she wished. S had the maturity and insight to assure me that she was not
persuaded by this; she said money is not everything and that this did not dissuade her
from wanting to live with the respondent. This is an aspect that I deal with later in this
judgment.
[22] The applicant creates the impression that the respondent leaves the children
unattended, sometimes for days on end, to pursue her career as a sex worker. He raises
concerns about who is minding the children when she does so seeing as she fired the
domestic worker after she reported certain incidents to the applicant and thus no longer
trusted her loyalty to her; this domestic worker now works for the applicant.
[23] This scenario painted by the applicant is not entirely true : S informs me that while her
mother sometimes goes to work at night, she is never out longer than 12 pm and always
arranges for someone to look after her and her brother. She made a point of telling me
that respondent never leaves them for days on end. This made me suspicious as I
wondered why she was refuting this allegation. I asked her how she knew that this had
been said and she admitted that this was one of the things that the respondent had told
her that the applicant had said about her.
[24] This is highly inappropriate and made me alive to the fact that there may have been
some coaching of S by the respondent prior to her interview with me. It was, however,
readily apparent from my interview with S that her loyalties were with the respondent
and she expressed a strong desire to reside with the respondent. Although I canvass
and she expressed a strong desire to reside with the respondent. Although I canvass
this later in my judgment, my impression was that these were views genuinely held by
S and were not views that the respondent had manipulated her to convey to me.
[25] It is also necessary to address the claims that the respondent has failed to ensure that
the children attend school and that they have missed an inordinate number of days of
school. When I asked S about this, she assured me that they had only missed school
when they were not well and explained that in the winter, they tended to get sick more
often. As S informed me that she is extremely happy at her school, I doubted that she
had missed school because she did not want to go and the respondent had condoned
this. I nevertheless impressed upon her how important it was that she attended school.
The in limine challenges raised by the respondent
a. Urgency
[26] The respondent disputes that the matter was properly urgent. In terms of Rule 6(12)(a)
of the Uniform Rules of Court, a court may hear a matter as one of urgency where the
interests of justice so require. An applicant must show not only urgency but that th e
urgency was not self -created and that substantial redress cannot be obtained in due
course.1
[27] The most recent discrete events preceding the launching of the application on 7 May
2026 were school absences from 4 May 2026 and the refusal of access to the complex
on 17 April 2026. The applicant was aware of the broader pattern of conduct by the
respondent from at least January 2026. The urgency was, in substantial measure,
manufactured by delay and selective presentation of incidents.
[28] This notwithstanding, the application brought by the applicant raised serious concerns
about the safety and well -being of the minor children currently in the care of the
respondent. I therefore did not dismiss the application for lack of urgency and decided
to consider the merits , after affording the respondent the opportunity to respond and
make representations. I likewise afforded the applicant to reply to the respondent’s
contentions.
Non-joinder of JJJ
[29] The respondent raises a salient point of non-joinder, contending that JJJ, S’s registered
biological father, acquired parental responsibilities and rights in terms of section 21 of
the Children's Act 38 of 2005 (“the Children’s Act”) and ought to have been joined in
respect of the relief sought relating to S. There is no evidence before this court that JJJ
has been divested of those rights.
[30] The point of non-joinder in respect of JJJ is well-taken. The unabridged birth certificate
(Annexure "AA1") confirms that JJJ is S’s registered father. In terms of section 21(1) of
the Children's Act, he acquires full parental responsibilities and rights in prescribed
the Children's Act, he acquires full parental responsibilities and rights in prescribed
circumstances and there is no order before this court that divests him of those rights.
1 Luna Meubels Vervaardigers (Edms) Bpk v Makin and Another (t/a Makin's Furniture Manufacturers)
1977 (4) SA 135 (W).
This notwithstanding, h e was not cited in these proceedings, although the applicant
seeks guardianship of S.
[31] Any order affecting S’s primary residence or guardianship would be irregular without JJJ
having been afforded an opportunity to be heard.
[32] To the extent, however, that the counter-application seeks the regulation of contact and
the maintenance of S by the applicant (with whom she has an established de facto
parental relationship), those claims may be dealt with on an interim basis.
[33] But the final relief sought by the applicant with regard to S cannot proceed unless and
until JJJ is joined to these proceedings.
The merits: Interim guardianship
[34] The relief sought is, in substance, the transfer of primary residence and interim
guardianship of both children to the applicant pending a forensic psychological
investigation. This is a drastic order, requiring the displacement of the primary caregiver
with whom the children have lived throughout their lives. Courts are rightly cautious in
granting such relief on motion on the basis of contested, charge-laden affidavit evidence.
The disputes of fact already alluded to by me are a testament to this.
[35] The paramount consideration in any matter concerning a child is the best interests of
that child .2 Relevant considerations include the child ’s existing care arrangements,
sense of security and familiarity, the ability of each parent to meet the child’s emotional
and material needs, and any risks of harm.
[36] Where serious allegations are made in motion proceedings - and particularly where
those allegations are hotly contested and would, if true, constitute criminal conduct - a
court cannot simply prefer one party’s version without a proper investigation.3 The matter
before me is precisely of that character.
[37] The applicant makes serious allegations concerning substance abuse, emotional abuse
and neglect of the children, parental alienation, and association with dangerous persons.
and neglect of the children, parental alienation, and association with dangerous persons.
The respondent makes equally serious counter -allegations, that the applicant
inappropriately touched S, that he introduced both parties to cannabis, that he was under
the influence at the time of the RSV hospital visit , and that he is manipulating and
2 Section 28(2) of the Constitution of the Republic of South Africa, 1996; section 9 read with section 7
of the Children's Act 38 of 2005.
3 B v M 2006 (9) BCLR 1034 (W)
attempting to alienate S through financial inducements and deliberate humiliation of the
respondent.
[38] Although S confirmed the financial inducements, t he stark factual disputes cannot be
resolved on the papers. The appropriate vehicle for resolution is not a summary interim
order but a thorough and impartial investigation by the Family Advocate, who has the
statutory mandate, expertise, and investigative tools to inquire into the best interests of
minor children .4 Of particular urgency in that investigation is the allegation of
inappropriate touching of S by the applicant, which requires immediate and expert
attention and the allegations that the respondent is abusing drugs and alcohol and
leaves the children unattended.
[39] With these manifest disputes of fact on the papers, the applicant has not discharged the
heavy evidentiary burden required to justify this court granting the extraordinary relief of
displacing the primary caregiver on an interim basis. Moreover, the well-known Plascon
Evans Rule would require me to decide the matter on the respondent’s version.
[40] In the circumstances, the application for interim guardianship and supervised contact is
refused, and the matter is to be referred to the Family Advocate on an expedited basis.
[41] Hereafter, the Court will decide whether the matter should be referred to oral evidence,
both by the parties and by expert witnesses, including the Family Advocate who
conducted the investigation.
The voice of the child
[42] Prior to preparing this judgment, I conducted a private interview with S, in the absence
of both parties and their legal representatives (although she was brought to the meeting
by Mr. Morland). I obviously could not interview J as he was too young.
[43] S is eleven years old. Apart from being a little nervous and tearful at first, S was calm,
articulate, and composed throughout the interview. I asked her if she understood why I
articulate, and composed throughout the interview. I asked her if she understood why I
had asked to see her and if she was aware of the litigation between her mother and the
applicant. It was clear from her responses that she had full insight into the reasons for
my wanting to see her and the dispute between her mother and the applicant.
4 section 4 of the Mediation in Certain Divorce Matters Act 24 of 1987; McCall v McCall 1994 (3) SA
201 (C); Fraser v Children's Court, Pretoria North, and Others 1997 (2) SA 218 (CC).
[44] I started by emphasising that in my view children should never feel pressured by their
parents, and in her case, by her mother and the applicant, to take sides and should
never feel guilty about loving and wanting to spend time with the other parent. I explained
that both her mother and the applicant loved her and I was sure that she loved both of
them. I made it clear that although I would consider her preference as to who she wished
to live with, ultimately it would be my decision.
[45] Although I sensed some degree of coaching by the respondent and that she has been
told what had been said about the respondent in the papers, S expressed a clear and
unequivocal preference to continue residing with her mother. She disclosed to me that
she knew what profession her mother was in but said that she understood why her
mother had no choice as she had a low level of education. She indicated that after the
applicant had told her what her mother used to do , and she understands she now
continues to do, she had a discussion with her mother about it and she does not judge
her mother; nor does it distress her. Indeed, she stated that it did not change anything
for her and that she knows her mother is a good mother and she loves her and that her
lack of education has left her with little choice but to pursue this profession. The latter is
clearly a narrative fed to S by the respondent that needs further investigation.
[46] I impressed upon S that the applicant loves her and wanted to spend time with her and
I was sure that she also wanted to spend time with hi m. She said she understood that
should she spend weekends with the applicant , this would be at his parents ’ home but
did indicate that the applicant’s mother has displayed a clear preference for the
applicants two other children, only the one of whom she has met, and who she says visit
their grandmother, but not in the presence of the applicant, who she says, “is not allowed
their grandmother, but not in the presence of the applicant, who she says, “is not allowed
to see them.” This is an aspect that requires investigation.
[47] I found S to be a child of evident intelligence, insight and emotional maturity well beyond
her age who was capable of forming and articulating a genuine and considered view of
her own circumstances and her preferences . Her demeanour was consistent with
sincerity, and she showed little sign of being coached or unduly pressured, save for the
issues hitherto mentioned.
[48] The legislative and international framework governing the voice of the child in South
African proceedings is well established and must be set out briefly.
[49] Section 28(2) of the Constitution of the Republic of South Africa, 1996 provides that a
child’s best interests are of paramount importance in every matter concerning the child.
Section 10 of the Children's Act 38 of 2005 (“the Children’s Act”) gives direct expression
to the child’s right to participate and provides:
“Every child that is of such an age, maturity and stage of development as to be able to
participate in any matter concerning that child has the right to participate in an
appropriate way and views expressed by the child must be given due consideration.”
[50] Section 9 of the Act re-states the paramountcy of best interests, while section 7 provides
the multi-factorial framework within which those interests are assessed, which includes,
expressly, the child's age, maturity, and stage of development.
[51] Section 31(1)(a) of the Children ’s Act further provides that before a person holding
parental responsibilities and rights takes any decision involving the child, that person
must give due consideration to any views and wishes expressed by the child, bearing in
mind the child ’s age, maturity and stage of development. Sections 6(2)(a) and 6(5) of
the Act similarly oblige those acting in matters affecting children to uphold children ’s
rights as enshrined in the Bill of Rights and to ensure that children are kept informed of
significant decisions affecting them.
[52] At the international level, Article 12(1) of the United Nations Convention on the Rights
of the Child (UNCRC), to which South Africa is a State Party, provides that States shall
assure to the child who is capable of forming his or her own views the right to express
those views freely in all matters affecting the child, with those views being given due
weight in accordance with the child’s age and maturity.
[53] Article 12(2) specifically provides that the child shall be given the opportunity to be heard
in judicial and administrative proceedings affecting the child. Article 4(2) of the African
Charter on the Rights and Welfare of the Child (ACRWC), likewise mandates that a child
capable of communicating his or her views shall be afforded the opportunity for those
capable of communicating his or her views shall be afforded the opportunity for those
views to be heard in judicial proceedings, either directly or through an impartial
representative.
[54] The Constitutional Court has endorsed the foundational importance of these instruments
in AD and Another v DW and Others (Centre for Child Law as Amicus Curiae) 5
5 [2007] ZACC 27.
[55] In McCall v McCall,6 King J identified the child’s preference as one among the relevant
factors in determining best interests, noting that it should be considered where the court
is satisfied that the child is capable of forming and expressing an intelligent and informed
view. The court found the minor child to be “an intelligent, articulate, persuasive, sincere
and candid child” displaying a degree of maturity and intellectual development sufficient
to give his preference significant weight.
[56] The factors considered in McCall were substantially codified and expanded in section 7
of the Children ’s Act, which now provides the primary statutory framework for the
assessment of best interests. The child ’s preference features expressly as a relevant
factor in terms of section 7(1)(i ) of the Act, to be weighed according to the child ’s age,
maturity and stage of development.
[57] However, the weight to be accorded a child’s expressed preference is not fixed and must
be assessed against all the surrounding circumstances. In Van Rooyen v Van Rooyen 7
the court declined to place any weight on preferences expressed by children found to
be in a state of emotional confusion and susceptible to parental influence, holding that
it would be “unwise and indeed irresponsible” to give those preferences any weight.
[58] The critical inquiry is therefore not merely whether a preference has been expressed,
but whether it is genuinely the child ’s own and formed view, free of manipulation, and
whether the reasons underlying it reflect sufficient understanding of the child ’s own
interests. Vulnerability to parental pressure is an established countervailing
consideration.8
[59] Applying these principles to the present case I find that S is eleven years old She is, in
my assessment, a child of above -average emotional and intellectual maturity for her
age. Her preference to remain with her mother was clearly stated and accompanied by
age. Her preference to remain with her mother was clearly stated and accompanied by
reasoned and empathetic articulation of her relationship with the respondent. She
indicated that her mother was both her mother and her best friend and that they do lots
of fun girl things together. Her measured and considered response to the disclosure by
the applicant of the nature of her mother’s profession reflected a profound care for her
mother rather than judgment. This is inconsistent with a child who is unduly coached or
6 1994 (3) SA 201 (C)
7 (7493/97) [1998] ZAWCHC 1
8 De Jure Law Journal (2023) Vol 56 and the Centre for Child Law Critical Review of South Africa's
Child Participation Frameworks (2024).
pressured. The only aspect that concerned me was S volunteering that her mother did
not leave them to pursue her profession for days on end that I have already mentioned.
This notwithstanding, I am satisfied that her preference is genuine, informed, and of
sufficient maturity to attract material weight.
[60] S’s expressed preference to reside with her mother is consistent with the principle of
preserving the stability of her existing care environment, which is a factor expressly
contemplated in section 7(1)(e) of the Children’s Act. It constitutes an independent and
significant reason, over and above the evidentiary difficulties discussed in the merits
analysis above, why the application for an interim change of primary residence must be
refused.
[61] I further note that the applicant's disclosure to S of the intimate details of the
respondent’s prior occupation is a matter of serious concern warranting specific attention
in the Family Advocate ’s investigation. Section 7(1)(f) of the Children's Act directs this
court to consider the need to protect the child from any physical or psychological harm.
Exposing an eleven -year-old child to information of this nature about her primary
caregiver, however true, is calculated to undermine her relationship with her mother.
The Family Advocate ’s investigation must specifically examine this conduct and its
impact on S’s emotional wellbeing and the parties’ respective fitness as caregivers.
[62] Another aspect that requires investigation is S’s disclosure that the applicant had told
her that should she live with him, she would be able to live in a far nicer house and he
would buy her whatever she wanted. She explained to me that she was aware of what
the applicant was trying to do but knew tha t money was not the most important thing
and she still preferred to stay with her mother.
[63] Bearing this in mind and S’s stated preference to stay with her mother, it is my view that
this should also apply to her younger brother. I say this because of the clear emotional
bond expressed by S between her and her brother , who she says she adores and is
terribly cute. In fact she told me that when she was staying with the applicant, he was
frustrated with her for not spending time with him alone and always wanting to play with
her brother. It would not be in either child’s bests interests to be separated from one
another.
[64] This, however, is not the only basis upon which I find that pending the outcome of the
family advocate’s report and any further directions by the Court, the younger child, who
is only two years old should remain with his mother and that is courts are generally
reluctant to separate young children from their mothers. This is a prima facie view that I
agree with and without concrete evidence to dissuade me, I am not prepared to depart
from.
The counter-application: Interim financial relief
[65] Pending the outcome of the Family Advocate ’s investigation, the respondent seeks
interim maintenance for the minor children and rehabilitative maintenance for herself.
These claims are brought in a counter-application in the proceedings before me. As far
as I am aware divorce proceedings have not yet been instituted and thus Rule 43 relief
for interim maintenance is not yet available to the respondent.
[66] On the papers before me, the following material averments made by the respondent are
not convincingly answered by the applicant:
a. The applicant was the sole financial provider for the household throughout the
relationship, providing approximately R15,000 to R20,000 per month to the
respondent and meeting all household costs, including medical aid, school fees,
and rental;
b. In April 2026, the applicant unilaterally removed the respondent from his medical
aid, depriving the respondent of essential follow-up cancer treatment.
c. The respondent was not employed during the relationship between the parties ,
has no formal qualifications beyond Grade 9, and is entirely financially dependent
on irregular payments from the applicant. This, she says, has forced her to return
to sex work to earn a living.
d. The respondent’s current income is approximately R3,000.00 per week, which is
manifestly insufficient to meet the children ’s needs and her own rehabilitative
requirements.
e. The monthly rental in respect of the respondent’s current residence with the
children is R10,200.00.
f. J requires a specialised lactose -free diet due to his lactose intolerance, the
consistent provision of which the respondent has been unable to maintain due to
financial constraints
g. Both children attend Ashton College private school, the fees for which are borne
by the applicant. S told me she loves the school and has lots of friends there. She
volunteered she had previously been at another school with much bigger classes
and had not managed and was held back a year. She proudly told me that there
are much smaller classes in her cur rent school and since attending this school ,
she now is in the top ten of the children in her class.
h. The applicant, by his own account, is employed as general manager in his family’s
business which includes large supermarkets in the Super-Spar chain. He lives with
his parents without paying rent, and has historically provided R15,000 to R20,000
per month for the household prior to leaving the respondent.
[67] It is necessary to provide for interim maintenance for the respondent in order to level the
playing fields whilst the issue of guardianship and primary care are being investigated.
[68] The principles applicable to interim maintenance in this context are analogous to those
governing Rule 43 applications in divorce proceedings . These require that the court
considers the parties ’ existing standard of living, the needs of the children and the
applicant, and the means of the paying party on a prima facie basis, without conducting
a full maintenance enquiry. 9
[69] The respondent has made out a sufficient prima facie case for interim financial relief. It
is additionally just and equitable that the respondent, who, on her version, was induced
to abandon her livelihood and become entirely dependent on the applicant (and has now
out of necessity had to resume sex work), receives interim rehabilitative maintenance
while the investigation is pending and while she undertakes the education and skills
development needed to achieve financial independence.
[70] I accordingly grant financial relief in the terms set out below.
[71] I also make an Order regulating the applicant’s access to the minor children on an interim
basis. I firmly believe that minor children should have access to both their parents , and
in the matter before me regarding S, includes the applicant. I have no doubt that the
applicant loves the children and they him.
9 Taute v Taute 1974 (2) SA 675 (E).
[72] At present the arrangement is that the applicant collects the minor children every
morning and takes them to school and thereafter fetches them. I questioned how this
was feasible when the applicant worked as a manager at the Spar in Pretoria and the
school was on the East Rand but S explained that he only worked half day and this is
how he was able to fetch them from school.
[73] I believe that this arrangement should continue as it allows the applicant daily contact
with the children. I canvassed the issue of weekend access being afforded to the
applicant with S and whether every alternate weekend access was sufficient. She said
it was as, in any event, the applicant works every second weekend.
[74] Generally weekend access is not afforded to fathers of very young children. However,
the applicant has had both children stay with him and his parents for five days since the
parties’ separation and the applicant’s mother is also there to assist him with l ooking
after J.
[75] In view of the animosity between the parties, it is appropriate that a parental co-ordinator
be appointed to manage the visits as well as the school pick - ups and drop offs. This
would also assist the respondent with her emotional immaturity and her inabil ity to
control her impulsive outbursts.
[76] Should the daily contact between the parties due to the applicant fetching the children
for school and dropping the children off afterwards prove too emotionally fraught for the
respondent, or cause her not to be able control her emotions in front of the children, the
parental co-ordinator will need to make alternative arrangements; one of which could be
that the applicant repairs the respondent’s car so that she could take the children to
school and fetch them, while allowing the applicant access to the children once a week
on a Wednesday evening so that they can have supper with the applicant . This,
however, should not be overnight access.
however, should not be overnight access.
[77] I have also decided that as a precautionary measure , a domestic worker should be
employed by the respondent, to be paid for by the respondent, who will not only assist
the respondent, but act as a carer for the minor children who can report to the Family
Advocate regarding the day-to-day care of the minor children.
Order
[78] Having regard to all of the above, I make an interim order in the following terms:
A. In respect of the main application:
1. The applicant's application for interim guardianship of the minor children is
refused.
2. The matter is referred to the Office of the Family Advocate, Gauteng Local
Division, Johannesburg, for an expedited investigation into the best interests of
the minor children and in particular with regard to their primary residence and
guardianship. This includes all of the issues highlighted in this judgment
warranting further investigation, and any other issues requiring oversight in the
view of the Family Advocate.
3. The Family Advocate is directed to complete the investigation and file a report
with this court within 60 (sixty) days of the date of this order.
4. The matter is postponed to a date to be arranged with the Registrar following
receipt of the Family Advocate’s report, for further directions.
5. Pending the outcome of the Family Advocate ’s investigation and any further
order of this court, the minor children shall remain in the primary care of the
respondent at their current residence.
6. Pending the outcome of the Family Advocate ’s investigation and any further
order of this court, the applicant shall exercise contact with the minor children
as follows:
6.1 Every alternative weekend, from Friday at 16:00 to Sunday at 16:00 .
6.2 The applicant is entitled to continue to fetch the children for school in the
mornings and fetch them, following which he must return them to the
respondent’s residence. This is subject to the parental co -ordinator to be
appointed varying this.
7. The parties are directed to appoint an agreed parental co-ordinator who should
be a clinical psychologist or social worker. Should the parties be unable to
agree, the court may be approached to appoint such a co-ordinator.
8. The parties are interdicted from making disparaging, demeaning or derogatory
remarks about each other in the presence of the minor children and from taking
any steps whatsoever to influence the minor children regarding their place of
primary care.
9. The costs of the main application are reserved for determination by the court
that ultimately disposes of the matter.
B. In respect of the respondent’s counter-application:
1. Pending the finalisation of the main application and any maintenance order by
a court of competent jurisdiction, the applicant is ordered to pay to the
respondent in respect of the minor children:
1.1 The school fees of both minor children in full , paid directly to Ashton College
as and when they fall due;
1.2 100% of the medical aid premiums for both minor children, and 100% of all
medical, dental, and related costs not covered by the medical aid, within 7
(seven) days of being presented with proof of payment;
1.3. Rental in the amount of R10,200.00 (ten thousand two hundred rand) per
month in respect of the property in which the respondent and the minor children
reside, payable in advance on or before the first day of each month, directly to
the landlord, with the first payment due on the first day of the month following
the date of this order;
1.4 R15,000.00 (fifteen thousand rand) per month in respect of the children's
general maintenance (food, clothing, toiletries, transport, and incidentals),
payable in advance on or before the first day of each month into a bank account
nominated in writing by the respondent;
1.5 R6,000.00 (six thousand rand) per month for the provision of a domestic worker
to assist with the care of the minor children, payable in advance on or before
the first day of each month into the bank account nominated by the respondent.
2. The applicant is ordered to pay to the respondent, by way of rehabilitative
maintenance, the sum of R10,000.00 (ten thousand rand) per month for a
period of 24 (twenty -four) months, payable on or before the first day of each
month, with the first payment d ue on the first day of the month following the
date of this order.
3. The applicant is ordered, within 7 (seven) days of the date of this order, to
3. The applicant is ordered, within 7 (seven) days of the date of this order, to
reinstate the respondent on his Discovery medical aid as a dependant with
For the Applicant:
For the Respondent:
A instructed by B
X instructed by Y
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