The Factual Matrix: Allegations of Sexual Abuse and Protracted Litigation
The case of C.N v I.G.R (D6383/2024) [2025] ZAKZDHC 68 (28 October 2025) presents a troubling factual scenario that will resonate with family law practitioners who regularly navigate the treacherous waters of contact disputes involving allegations of child abuse. The matter came before Notyesi AJ in the KwaZulu-Natal Local Division, Durban, and concerned the parents of ZGR, a boy born on 12 February 2019.
The parties’ marriage had been dissolved, with the divorce order granting primary care and residence to the applicant mother, subject to the respondent father’s rights of access and phased contact. However, the post-divorce relationship between the parties was characterised by persistent conflict, culminating in contempt of court proceedings instituted against the mother for refusing the father access to the child. On 29 June 2023, the court directed the mother to comply forthwith with the divorce order regarding the father’s access rights and contact with ZGR.
The genesis of the present application lay in events that allegedly transpired in July 2023. The mother deposed that she caught ZGR masturbating by stroking his penis. When questioned, the then four-year-old child reportedly stated that “the man in the red hat told me to touch my booya (referring to penis) and told me it is good for me.” The identity of this mysterious figure remained undisclosed at that stage. According to the mother, ZGR had previously exhibited behavioural changes including anxiety, fear, clinginess, and allegations of performing sexual acts on other children at school. Despite these alleged concerns, the mother took no immediate steps to obtain professional assessment or arrange for the child to undergo therapy.
The critical turning point occurred on 10 January 2024, when ZGR allegedly returned from a mid-week visit with his father and began drawing pictures. During questioning about these drawings, which depicted a large figure with red colouring in the head region and a smaller crouching figure, the child purportedly identified the respondent father as “the man in the red hat.” This revelation prompted the mother to take ZGR to Dr Ananth for observation and to open a criminal case against the father. She was advised to submit a J88 form to the district surgeon at Tutuzela Clinic, R K Khan Hospital, and commenced consultations with a clinical psychologist, Ms Nicole Smith. The father was subsequently charged with sexual abuse and released on bail with conditions restraining him from having contact with ZGR.
The mother instituted the present proceedings on 5 June 2024, seeking an order suspending the father’s contact with ZGR. The application was placed on the urgent roll on 2 July 2024, whereafter the court granted restricted and supervised contact to the father and directed the Family Advocate to provide a report by 18 August 2024. On the return date of 19 August 2024, following receipt of the Family Advocate’s report, the court ordered the appointment of a forensic psychologist to assess and investigate the dispute, and adjourned the matter sine die.
Significantly, no material developments occurred between August 2024 and June 2025, suggesting a loss of momentum on the mother’s part. It was the father who eventually set the matter down for final hearing on 20 August 2025. In response, and mere weeks before the hearing, the mother launched an interlocutory application on 1 August 2025 seeking referral of the matter to trial on the basis that substantial disputes of material fact had arisen. This strategic manoeuvre would become a focal point of the court’s consideration, as it appeared calculated to delay the finalisation of the matter.
The factual landscape was further complicated by the withdrawal of the criminal charges against the father on 25 October 2024, with the Senior Public Prosecutor at Pinetown Court citing insufficient evidence. This development, coupled with the contents of various expert reports that would be placed before the court, set the stage for a contested hearing that would require the court to grapple with deeply troubling allegations against the father whilst simultaneously considering his constitutional right to maintain a relationship with his child and the paramountcy of ZGR’s best interests.
Referral to Trial in Motion Proceedings: When Do Disputes of Fact Warrant Oral Evidence?
The mother’s interlocutory application for referral to trial raised important questions about the proper approach to resolving factual disputes in motion proceedings, particularly in the context of family law matters involving children. The application was predicated on Rule 6(5)(g) of the Uniform Rules of Court, which grants the court a discretion where an application cannot properly be decided on affidavit. The rule provides three alternatives: the court may dismiss the application, direct that oral evidence be heard on specified issues, or refer the matter to trial with appropriate directions.
Notyesi AJ noted that the court’s discretion under this rule is not unfettered, and emphasised that a court must be astute to prevent abuse of its process by unscrupulous litigants intent on delay or fishing expeditions. The learned judge cited the Supreme Court of Appeal’s warning in Minister of Land Affairs and Agriculture and Others v D&F Wevell Trust and Others [2007] ZASCA 153; 2008 (2) SA 184 (SCA) at page 205, underscoring the need for vigilance against tactical manoeuvres designed to postpone finality without genuine justification.
The mother’s counsel relied heavily on Room Hire Co. (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) SA 1155 (T). The Room Hire case outlined three principal circumstances in which disputes of fact may arise in motion proceedings: where the respondent denies material allegations and produces positive contrary evidence; where the respondent admits the applicant’s evidence but alleges other disputed facts; and where the respondent lacks knowledge of main facts but denies them and provides evidence showing the applicant’s deponents are biased, untruthful or unreliable.
The mother’s counsel submitted that the conflicting expert opinions necessitated oral evidence and cross-examination. Specifically, counsel contended that the recommendations of the Family Advocate and the clinical psychologist Mr Willows required testing under cross-examination, particularly given that other experts had raised concerns about ZGR’s wellbeing. Furthermore, the mother indicated her intention to call her own forensic psychologist and expressed willingness to cooperate with Mr Willows’ investigation, having allegedly declined participation previously.
In support of the application for referral, counsel cited National Director of Public Prosecutions v Zuma [2009] ZASCA 1; 2009 (2) SA 277 (SCA) at paragraph 26, where the court stated that motion proceedings, unless concerned with interim relief, are designed to resolve legal issues based on common cause facts and cannot ordinarily be used to resolve factual issues as they are not designed to determine probabilities.
The father’s counsel mounted a vigorous opposition, arguing that no genuine or material disputes of fact existed and that the matter was capable of resolution on the papers. She invoked the Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) rule, submitting that where disputes of fact arise on affidavits, a final order can be granted only if the facts averred in the applicant’s affidavits which have been admitted by the respondent, together with the facts alleged by the respondent, justify such an order. The exception arises where the respondent’s version consists of bald or uncreditworthy denials, raises fictitious disputes, or is palpably implausible, far-fetched or so clearly untenable that rejection on the papers is justified.
Counsel for the father conceded, however, that because the matter involved a child’s best interests, the court should apply the Plascon-Evans rule with caution. The father relied on South Coast Furnishers CC v Secprop 30 Investments (Pty) Ltd 2012 (3) SA 431 (KZP) at paragraph 15, where the court adopted a test similar to absolution from the instance: whether there is evidence upon which a reasonable presiding officer might find for the plaintiff. The South Coast Furnishers case emphasised that a robust approach permitting resolution on probabilities can only be taken if clear falsity emerges from the papers.
The father’s submissions stressed the mother’s conduct throughout the proceedings, including her history of refusing contact in contravention of court orders and her unexplained failure to cooperate with the court-appointed forensic psychologist. Counsel characterised the interlocutory application as a strategic delay tactic, particularly given the lengthy period of inaction following the August 2024 order and the fact that it was the father who ultimately set the matter down for hearing.
Notyesi AJ conducted a careful analysis of the circumstances warranting referral to trial. The court identified several relevant considerations: the paramountcy of the child’s best interests; the parenting rights of both parties; the seriousness of the allegations; the possible impact on the father’s access rights; the outcome of investigations into the allegations; all expert reports filed; the withdrawal of the criminal case; the SAPS social worker’s report; the Family Advocate’s report; the forensic psychologist’s report; the reasons for the requested referral; and the prolonged delay in reaching finality.
The mother’s grounds for referral were distilled to three essential points: she sought a second opportunity to be interviewed by Mr Willows; she wished to appoint her own clinical psychologist; and she desired an opportunity to cross-examine the various experts. The court rejected all three grounds as fundamentally flawed. The mother had declined, of her own accord, the opportunity offered by Mr Willows for an interview. She had never been refused any right to appoint her own psychologists. Critically, she had not set out the nature and extent of evidence to be led by any intended expert or additional witnesses, had offered no explanation for her failure to call such evidence timeously, and had tendered no contrary expert opinion to dispute the reports already filed.
The court was particularly troubled by the mother’s explanation for her inaction, which she attributed to ignorance as a layperson and fear of the father. Notyesi AJ found these reasons wholly unconvincing, noting that the mother had previously blamed ignorance during the contempt proceedings. The learned judge emphasized that the mother held a B.Com Management degree and could not credibly claim to be an unsophisticated litigant. Moreover, her own affidavit demonstrated awareness of the procedure for appointing a forensic psychologist and the role of the KwaZulu-Natal Family Law Forum when the parties failed to agree.
The court invoked the principle, firmly established in the D&F Wevell Trust case and Carr v Uzent 1948 (4) SA 383 (W) at page 390, that a litigant’s case stands or falls on his or her own averments. A party may not seek to lead oral evidence to make out a case for the first time where the case is not already established on the papers. The Carr case held that Rule 9 was never designed to enable an applicant to amplify affidavits by additional evidence where the affidavits themselves, even if accepted, do not make out a clear case.
Notyesi AJ concluded that the disputes arising were of a peripheral nature to the main issue. The true intention of the interlocutory application was to supplement the mother’s case rather than to resolve genuine material disputes of fact. The application was accordingly dismissed, with the court proceeding to determine the main application on the papers before it.
The Role and Weight of Expert Evidence in Child Contact Disputes
Central to the court’s determination was the evaluation of numerous expert reports, each offering differing perspectives on the allegations and ZGR’s best interests. The manner in which Notyesi AJ approached this task provides valuable guidance for practitioners on the standards expected of expert evidence in family law proceedings and the weight to be accorded to various professional opinions.
The mother relied principally on two reports prepared by Ms Nicole Smith, a psychologist, dated 8 March and 20 May 2024. However, the court found these reports significantly deficient. Ms Smith had interviewed only the mother and ZGR, failing to engage with the father. More fundamentally, she did not list her qualifications or expertise in the reports, nor did she provide details of her methodology or assessment procedures. The court could not discern from the reports whether ZGR had been interviewed separately from his mother or in what environment the assessments took place. The learned judge observed that Ms Smith’s findings largely repeated the mother’s allegations without independent verification or analysis.
Whilst not rejecting Ms Smith’s reports outright, Notyesi AJ declined to place significant reliance upon them. The court referenced K.O v M.S [2025] ZAGPPHC 192 at paragraph 47, which emphasised that requirements for expert reports should be strictly complied with to ensure vulnerable children are protected and not exposed to situations where they must satisfy parental expectations or adapt their lives to accommodate a parent’s needs or an expert’s recommendations.
The court applied similar scrutiny to the report of Hannah (Annie) Varaden, a clinical social worker. Varaden had proposed that care and contact arrangements needed to be changed, with the child’s contact with his biological father supervised by a neutral professional person. However, the father had neither been interviewed nor afforded any opportunity for engagement by Varaden. The report was plainly based solely on the mother’s account. The circumstances of ZGR’s interview were not detailed, leaving the court uncertain whether the child had been interviewed properly and in a conducive environment. Notyesi AJ considered it too risky to accept this report, applying the same concerns articulated in the K.O case.
The court identified five critical deficiencies rendering both the Smith and Varaden reports unreliable: the qualifications and experience of the expert witnesses were not disclosed; their conclusions lacked adequate support; they expressed their opinions with equivocality; the quality of their investigations was poor; and there appeared to be a lack of impartiality which could result in compromised objectivity.
By contrast, the court found the police investigation report prepared by Captain Gcabashe of the South African Police Service to be methodologically sound and persuasive. Captain Gcabashe possessed 23 years of experience as a social worker, 14 of which involved working with children. Her report concerned ZGR’s developmental stage, his ability to communicate, his recollection of information, and his capacity to distinguish between truth and lies. She followed established procedures in conducting the child investigation and assessed ZGR according to Piaget’s theory, determining that the five-year-old was functioning at the pre-operational stage.
Critically, Captain Gcabashe recorded that ZGR had disclosed information about the alleged sexual abuse incident but also indicated that “his mother told him the story for the talk.” During further questioning, the child was unable to relate the incident of sexual abuse. Captain Gcabashe concluded that there was a high possibility that the child had been coached about the alleged incident, particularly given that the parents were divorced. Although ZGR could identify between right and wrong, his disclosure of information was tainted by the admission that his mother had told him the story.
The mother tendered no contrary report challenging Captain Gcabashe’s findings or methodology. Notyesi AJ held that in such circumstances, the uncontested report of an independent expert should be accorded serious weight. The court cited Schneider NO and Others v AA and Another 2010 (5) SA 203 (WCC) at pages 211 to 212, where Davis J articulated the fundamental duties of an expert witness. The Schneider case emphasised that an expert comes to court to provide the benefit of their expertise and must furnish the court with as objective and unbiased an opinion as possible. An expert is not a hired gun who dispenses expertise for the purposes of a particular case, nor does an expert assume the role of advocate or give evidence beyond the logic dictated by the scientific knowledge they claim to possess.
Applying these principles, Notyesi AJ accepted Captain Gcabashe’s report and her findings in their entirety. The report was logical, methodologically rigorous, and based on objective analysis of facts and information available to the investigating officer.
The Family Advocate’s report, filed following an enquiry conducted on 17 July 2024, received similarly favourable treatment. Menzi Mdunge, a registered social worker and family counsellor, conducted the enquiry to determine the appropriate exercise of parental responsibilities and rights concerning ZGR. Both the mother and father were interviewed, ZGR was assessed, all previous reports and police investigations were considered, and relatives were interviewed. The enquiry was comprehensive and thorough.
Mdunge observed that the parties shared an acrimonious relationship following their divorce and had not healed from its aftereffects. He recommended that both parties seek counselling to address ongoing conflict. Significantly, the Family Advocate recorded that the family counsellor had investigated the allegations but unfortunately could not establish their veracity. The matter had been withdrawn by the prosecution, and the forensic psychologist’s report remained outstanding at that stage. The Family Advocate accordingly recommended erring on the side of caution with supervised contact pending the forensic psychologist’s report.
The Family Advocate recommended that the father exercise supervised rights of contact every alternate weekend on Saturday and Sunday from 10h00 to 16h00, daily telephonic contact including video calls, sharing of ZGR’s birthday, and appropriate contact on Mother’s Day and Father’s Day. The supervision was to be conducted by the paternal grandmother. Notyesi AJ found no shortcoming in the Family Advocate’s report and accepted both it and the family counsellor’s submissions as logical and grounded in objective analysis.
The most significant expert evidence came from Mr Willows, the clinical psychologist appointed by the KwaZulu-Natal Family Law Forum pursuant to the court order of 19 August 2024. Mr Willows conducted a full psychometric assessment of the father and interviewed ZGR. He had requested the mother to present herself for interview, sending emails directly to her, but she declined to participate. His report described the co-parenting relationship as hostile and uncooperative post-divorce, noting that the father had informed him there was no communication between the parties concerning ZGR’s welfare, health, or educational progress.
After his investigations, Mr Willows concluded that there were no reasons to recommend any restriction on contact between ZGR and the father. He found no reliable evidence to support allegations of sexual abuse or that the father was an abusive or neglectful parent. The court found this report detailed, well-reasoned, and based on objective facts. Mr Willows had conducted a psychometric assessment, which the court noted is a structured test used to measure a person’s mental capabilities, personality traits, and behavioural style through an independent process. He had visited the home, observed ZGR with the father and paternal grandmother, examined police investigation records and other reports, and interviewed ZGR. His conclusions flowed from rigorous analysis of interviews, contacts, and observations.
Notyesi AJ again invoked the K.O case, which articulated that the primary purpose of an expert report is to assist and provide the court with an objective opinion. The expert’s task is to furnish information based on scientific facts and research that would be unavailable without the expert’s contribution. The expert brings understanding of emotional dynamics and interpersonal interactions, provides insight into the child’s needs, and explains the influence of traumatic events on the child’s behaviour. However, the expert’s opinion cannot replace the court’s decision. The expert’s role has been described as assisting the court with the utmost social responsibility and justice whilst maintaining standards and ethics. If an expert is to be helpful, the expert must be neutral.
The court also had before it a report by Mr Suntosh R Pillay, Chief Clinical Psychologist for the Ethekwini District, prepared following a referral by the Director of Public Prosecutions. This report recorded a favourable history regarding ZGR’s education and concluded that the child was functioning within the expected intellectual range for a five-year-old, was not a mentally disabled witness, and could testify about the alleged crime provided questions were phrased simply, clearly, and age-appropriately with sufficient time for articulation. The report noted that testifying in open court would cause ZGR undue anxiety, stress, and harm, making an intermediary essential.
Having reviewed all expert evidence, Notyesi AJ accorded greatest weight to the reports of Captain Gcabashe, the Family Advocate and Mr Mdunge, and the forensic psychologist Mr Willows. These reports were characterized by methodological rigour, objectivity, comprehensive engagement with both parties, and conclusions firmly grounded in established professional practice. The court’s approach underscores that expert evidence in family law proceedings must meet exacting standards of independence, thoroughness, and transparency to assist the court in its paramount duty of determining a child’s best interests.
Applying the Best Interests Standard: Balancing Parental Rights Against Child Protection
Having dismissed the interlocutory application, Notyesi AJ turned to the substantive relief sought: the suspension of the father’s contact with ZGR based on allegations of sexual abuse. This required the court to engage with fundamental principles governing children’s rights and parental responsibilities under South African law, whilst navigating the tension between protecting a child from potential harm and preserving meaningful parent-child relationships.
The mother’s application was grounded in section 28(1)(a) of the Children’s Act 38 of 2005, which empowers a court to suspend any or all parental responsibilities and rights for a period, to terminate completely any or all such rights, or to limit parental responsibilities and rights. However, this statutory power must be read in conjunction with section 28(1)(b) and, most significantly, the constitutional imperative enshrined in section 28(2) that a child’s best interests are of paramount importance in every matter concerning the child.
The court acknowledged that allegations of sexual abuse are inherently serious and, if established, would unquestionably impact ZGR negatively and adversely affect his best interests. The learned judge emphasised that the court was therefore obliged to closely examine the allegations and all reports filed. The inquiry could not end merely with a finding that the allegations were unproven; rather, the court was required to conduct a broader investigation into what arrangements would serve ZGR’s best interests going forward.
Notyesi AJ referenced section 9 of the Children’s Act, which mandates that in all matters concerning the care, protection and wellbeing of a child, the standard that the child’s best interest is of paramount importance must be applied. Section 7(1) details factors that must be considered where relevant in applying this standard. The court cited P v P [2019] ZAWCHC 174 at paragraph 59, which clarified that the paramountcy of a child’s best interests does not mean it is the only consideration or that it necessarily trumps all others. The P v P case referenced S v M (Centre for Child Law As Amicus Curiae) [2007] ZACC 18; 2008 (3) SA 232 (CC) at paragraph 26, where the Constitutional Court held that whilst the best interests of the child are paramount, they are not absolute and their operation must take account of their relationship to other rights, which might require that their ambit be limited.
The P v P judgment articulated that parenthood is a fundamental and life-affirming human experience. It can be cruel, hurtful, and an insult to a parent’s dignity to deprive him or her of a meaningful role in nurturing, developing, and maintaining a bond with the child. The Children’s Act speaks not only of parental responsibilities but also parental rights. Where the child’s best interests are clear and adverse to a parent’s interest in performing a parenting role, the former must always prevail. However, in cases where it is difficult to discern what course of action will best advance the child’s interests, the parents’ respective interests may come to the fore.
The mother’s counsel correctly submitted that there was no real onus of proof in the conventional sense. This position found support in M v M [2018] ZAGPJHC 4 at paragraph 24, which held that the court sits as upper guardian of all minors within its jurisdiction, and the discretion exercised when decisions pertaining to children’s best interests are made is unique and not to be circumscribed in the narrow or strict sense. The M v M case cited LW v DB 2015 JDR 2617 (GJ) at paragraph 5, holding that the discretion to decide matters affecting children requires no onus in the conventional sense. This approach aligns with Jackson v Jackson 2002 (2) SA 303 (SCA) at paragraph 5, which established that where minor children’s interests are involved, litigation amounts to a judicial investigation of what is in their best interests, and the court is not bound by the parties’ contentions.
The M v M judgment further recognized that slavish adherence to technical procedural requirements might result in a court being unable to decide an issue in the child’s best interests, referring to the unreported judgment in DJB v MDP (case number 303774/2008, North Gauteng High Court, 2010) at paragraph 12. The most important consideration is the physical, psychological, and emotional wellbeing of the minor child, and technical procedural objections might shift focus and undermine efforts to determine best interests.
Notyesi AJ emphasized that the court must adopt a holistic approach, obtaining an overall impression to bring a fair mind to the facts set out by the parties. Expert opinions and prevailing circumstances must be assessed in balanced fashion for the court to render a finding mixed of fact and opinion in a final analysis of what, in a value judgment, would be in ZGR’s best interests. The court investigates the matter in a process that is more inquisitorial than adversarial.
In determining whether the allegations of sexual abuse had been established, the court conducted a careful analysis of the mother’s evidence. The July 2023 incident where ZGR was allegedly caught masturbating raised immediate concerns. Despite the mother’s assertion that she suspected sexual abuse at that stage, she took no steps to obtain professional assessment or send the child for therapy and investigation. ZGR had disclosed information about “the man in the red hat” yet the mother failed to pursue identification or take protective action. More troublingly, ZGR continued to have contact and visits with the father throughout this period.
Notyesi AJ held that a reasonable and concerned parent in such circumstances would have taken necessary steps to obtain professional assessment, send the child for therapy, and ensure an investigation was undertaken if genuine suspicions of sexual abuse existed. It would have been instructive to send ZGR for observation given the alleged state of sadness, anxiety, and depression. The court found the mother’s inaction inconsistent with a genuine belief that her child had been sexually abused.
Furthermore, the allegations regarding suspicion of sexual abuse were not raised during the contempt of court proceedings, which occurred around the same time. No explanation was provided for this omission. Only weeks after the contempt order, in July 2023, did the mother begin to entertain these suspicions more seriously. The court harboured serious doubts that a single act of a child masturbating could lead to the sole conclusion that sexual abuse had occurred, noting that such behaviour could be influenced by numerous factors including peer pressure or television and social media exposure.
The circumstances surrounding the disclosure of the father’s identity as “the man with the red hat” also troubled the court. ZGR had just returned from a mid-week visit with the father and began drawing pictures. The mother questioned him about the drawings, which depicted a large figure with red colouring in the head region with only eyes showing, and a smaller figure crouching below. The applicant provided no explanation of what specifically attracted her to these drawings or what rendered them suspicious. There was paucity of information, leaving the court doubtful that such a drawing could ground suspicion of sexual abuse.
The withdrawal of the criminal case due to insufficient evidence carried significant weight. Captain Gcabashe’s investigation found no basis for the allegations and concluded there was prima facie evidence of suggestibility by the mother to ZGR. This uncontested report from an independent expert was entitled to serious consideration. The court could find no contrary report challenging Gcabashe’s findings.
Having concluded that the allegations of sexual abuse were not established, Notyesi AJ turned to the broader question of what arrangements would serve ZGR’s best interests. The court invoked section 7(1) of the Children’s Act, which details factors to be considered including the nature of the personal relationship between the child and the parents; the attitude of the parents toward the child and the exercise of parental responsibilities and rights; the capacity of the parents to provide for the child’s needs; the likely effect on the child of any change in circumstances; the need for the child to maintain contact with family; and any other relevant factor.
The court referenced Knox DÁrcy and Others v Jamieson and Others 1996 (4) SA 348 (A), which held that the power exercised by courts concerning children’s best interests is not a discretion in the narrow sense but rather a discretion in the broad sense: a value judgment in which a court must have regard to several disparate and incommensurable features to arrive at a just decision.
Varaden had recommended in her report that the court should prioritize ZGR’s safety, proposing that contact with the father be supervised by a neutral professional person. Whilst Notyesi AJ agreed that safety must be prioritized, the learned judge disagreed with the recommendation for supervised contact. There was no evidence before the court that ZGR would be harmed by the father. Varaden’s recommendations were conclusions based on unproven allegations of serious abuse, and the court had already found no evidence supporting those allegations.
The Family Advocate had recommended supervised contact by the paternal grandmother, but this recommendation was expressly subject to the forensic psychologist’s report. Mr Willows’ report concluded there was no reason to recommend any restriction on contact between ZGR and the father, dependent on the assumption that there was no reliable evidence of the father being abusive or neglectful. The police investigation had not established the allegations, leading the court to agree there was no basis to restrict or impose supervision on the father’s contact with ZGR.
The court held there would be no basis for a drastic order limiting the father’s parenting of ZGR. The reports indicated that the father was a loving and caring parent who had close relations with his son. Those relations had been strained by limited contacts imposed by previous court orders. No special circumstances warranted limiting contact between ZGR and the father.
Notyesi AJ again cited the P v P case, emphasising that parenthood is fundamental and life-affirming, and depriving a parent of a meaningful role in nurturing and maintaining a bond with the child can be cruel and hurtful. The court held that considerable benefits existed for ZGR in having a shared parenting arrangement. He would maintain a sound relationship with both parents, a relationship that had existed after the divorce until the unsubstantiated allegations of abuse were raised. All reports were inconsistent with a child who had been abused.
The court also referenced R.M.D v K.D [2023] ZAKZNPHC 2 at paragraph 29, which stated that in an ideal world, it would be in a child’s best interests to form part of an intact, united, loving family where needs are catered for and the child feels secure. Such circumstances give the child the best opportunity to develop into a well-balanced and responsible member of society able to contribute meaningfully.
Finally, the court invoked the Constitutional Court’s guidance in the S v M case at paragraph 26, that the paramountcy of a child’s best interests does not render them absolute. Like all rights in the Bill of Rights, their operation must account for their relationship to other rights, which might require their ambit be limited. The reports indicated the father was a loving and caring parent, and considerable benefits would accrue to ZGR from shared parenting arrangements.
Having regard to all circumstances and the various reports filed, Notyesi AJ concluded that the mother had failed to make out a case for suspension of the father’s contact and access rights. She had failed to establish the allegations of sexual abuse. The application was accordingly dismissed, and the court proceeded to craft a detailed contact order that would serve ZGR’s best interests by gradually phasing in increased contact with the father over a period of months.
Plascon-Evans in Family Law Matters: A Modified Approach to Factual Disputes
The manner in which Notyesi AJ resolved the factual disputes on the papers provides important guidance on the application of traditional motion proceedings principles in the specialized context of family law litigation. The judgment illustrates that whilst the Plascon-Evans rule is not mechanically applied in children’s matters, neither is it wholly displaced, and courts must adopt a nuanced, fact-specific approach that respects both the paramountcy of the child’s best interests and the rights of parents to fair adjudication.
The father’s counsel had invoked the orthodox Plascon-Evans principle: where disputes of fact arise on affidavits, a final order can be granted only if the facts averred in the applicant’s affidavits which have been admitted by the respondent, together with the facts alleged by the respondent, justify such order. The exception permits rejection of the respondent’s version where it consists of bald or uncreditworthy denials, raises fictitious disputes of fact, or is palpably implausible, far-fetched or so clearly untenable that rejection on the papers is justified. The father contended that the mother’s allegations fell squarely within this exception.
However, counsel for the father properly conceded that because the matter involved a child’s best interests, the court should be slow in its application of the Plascon-Evans rule and ought to act with caution. Notyesi AJ accepted this submission, recognizing that family law proceedings occupy a distinct procedural space that requires modification of ordinary civil litigation principles.
The court’s analysis drew heavily on the seminal judgment in B v S at pages 584 to 585, which articulated the foundational principle that where a parental couple’s access or custody entitlement is being judicially determined for the first time, in other words where there is no existing court order in place, there is no onus in the sense of an evidentiary burden or risk of non-persuasion on either party. The B v S case emphasized that this litigation is not of the ordinary civil kind and is not adversarial. Even where variation of an existing custody or access order is sought, and where it may well be appropriate to cast an onus on an applicant, the litigation really involves a judicial investigation and the court can call evidence mero motu.
Notyesi AJ carefully distinguished the B v S scenario from the present case. The learned judge held that B v S and similar judgments do not preclude determination of matters based on the Plascon-Evans rule in every dispute involving custody of a minor child. The court must be cautious but this does not mandate abandonment of established principles for resolving factual disputes. The B v S case specifically referenced situations where there is no existing court order in place. By contrast, where there is an existing order and an applicant seeks to suspend such order based on allegations of a serious nature, there would be reason to require the applicant to produce sufficient evidence.
The court held that it should be very slow to determine facts by way of the usual opposed motion court approach, even where there is an existing order, but this must remain fact-specific. Where an applicant makes serious allegations seeking to deprive a parent of existing rights under a court order, the applicant must bear an evidential duty. This reflects a pragmatic recognition that existing court orders carry weight and should not be lightly disturbed without proper evidential foundation.
This approach finds support in the broader principle that courts exercise a discretion in the broad sense when determining children’s best interests: a value judgment requiring consideration of multiple disparate and incommensurable features. However, this does not absolve parties of their responsibility to present credible evidence supporting their contentions, particularly where they seek to alter established arrangements or make grave allegations against the other parent.
The court’s treatment of the mother’s conduct throughout the proceedings proved decisive in its evaluation of credibility and reliability of evidence on the papers. Notyesi AJ took a robust approach, identifying clear falsity and implausibility in the mother’s version that justified rejection without oral evidence. This demonstrates that whilst family law proceedings are inquisitorial and not strictly adversarial, courts retain the power and indeed the duty to critically assess evidence and draw adverse inferences from a party’s conduct.
The court found the mother’s explanation for her failure to cooperate with Mr Willows wholly unconvincing. She attributed her behaviour to ignorance as a layperson and fear of the father. Notyesi AJ rejected these reasons, noting that the mother had previously relied on identical excuses during contempt proceedings when she had contravened court orders by denying the father access to ZGR. The learned judge emphasized that the mother held a B.Com Management degree and her own affidavit demonstrated clear awareness of procedures for appointing forensic psychologists and the role of the KwaZulu-Natal Family Law Forum. She could not credibly claim to be an unsophisticated litigant.
More significantly, the court found that a reasonable litigant in the mother’s position would have taken reasonable steps after the lapse of the period referred to in the court order of 19 August 2024. Mr Willows had sent correspondence directly to the mother. Her failure to respond or engage was deliberate, not inadvertent. The court concluded that the true intention of the application for referral to trial was to supplement the mother’s case rather than to resolve genuine disputes of fact.
The court’s evaluation of the mother’s conduct extended to her handling of the alleged abuse. The inaction following the July 2023 incident when ZGR was allegedly caught masturbating was inexplicable. No professional assessment was obtained. No therapy was arranged. No investigation was initiated. ZGR continued to have contact and visits with the father. The court held that this conduct was fundamentally inconsistent with a genuine belief that the child had been sexually abused.
The failure to raise allegations of sexual abuse during the contempt proceedings, which occurred contemporaneously with the alleged discovery of abuse, further undermined the mother’s credibility. No explanation was provided for this omission. The timing of the allegations, emerging only after the contempt order was granted against the mother, suggested a retaliatory motive rather than genuine concern for ZGR’s wellbeing.
Notyesi AJ applied the principle from the South Coast Furnishers case, adopting a test analogous to absolution from the instance: whether there is evidence upon which a reasonable presiding officer might find for the plaintiff. The court emphasized that credibility of witnesses is not evaluated unless they have palpably broken down and where it is clear they have stated what is not true. Similarly, in motion proceedings, a robust approach can only be taken and the matter decided on probabilities if clear falsity emerges from the papers.
The court found that such clear falsity had indeed emerged. The uncontested report of Captain Gcabashe established prima facie evidence that ZGR had been coached by the mother. The child had stated his mother told him the story. The withdrawal of criminal charges for lack of evidence corroborated this finding. The mother’s refusal to cooperate with the court-appointed forensic psychologist, her failure to tender any contrary expert evidence, and her tactical deployment of the interlocutory application all pointed to a case lacking in merit.
The practical implications for practitioners are significant. In family law matters involving existing court orders, particularly where serious allegations are made that would fundamentally alter established arrangements, applicants bear a substantial evidential burden. Whilst the language of “onus” may be avoided given the inquisitorial nature of such proceedings, applicants must nevertheless present credible, objectively verifiable evidence supporting their contentions. Bald allegations, unsupported by expert evidence or corroboration, will not suffice to displace existing orders.
The conduct of parties throughout proceedings assumes heightened importance. Courts will scrutinize patterns of behaviour for consistency with alleged concerns. A parent claiming abuse who fails to take reasonable protective steps, who continues to permit contact between child and alleged abuser, who raises allegations only after adverse rulings in other litigation, and who refuses to cooperate with court-appointed experts, can expect their credibility to be severely undermined.
The quality and independence of expert evidence becomes critical. Reports lacking proper methodology, failing to disclose qualifications and expertise, based on interviews with only one party, or reflecting partisan advocacy rather than objective assessment, will be accorded little weight. By contrast, reports from court-appointed experts, police investigators, and the Family Advocate, which follow established protocols and engage comprehensively with both parties, will be entitled to significant deference.
The judgment also underscores that courts retain robust case management powers to prevent abuse of process through tactical manoeuvres designed to delay finality. The deployment of interlocutory applications seeking referral to trial, particularly where launched shortly before hearing dates after lengthy periods of inaction, will be subjected to searching scrutiny. Applicants must demonstrate genuine material disputes requiring oral evidence, not merely express dissatisfaction with unfavourable expert reports or seek opportunities to supplement deficient cases.
Ultimately, Notyesi AJ’s approach harmonizes the modified application of Plascon-Evans in family law with the paramountcy of children’s best interests. The court recognized that protracted litigation traumatizes both parents and children. Where allegations of abuse against a minor are made, there is particular urgency for finalization. The best interests of children are not served by permitting unmeritorious cases grounded in unsubstantiated allegations to proceed to lengthy trials. Rather, where clear falsity emerges from the papers, robust determination on affidavit serves the child’s interests by providing finality and allowing resumption of meaningful relationships with both parents free from the shadow of unproven accusations.
Questions and Answers
What statutory provision empowers a court to suspend or terminate parental responsibilities and rights?
Section 28(1)(a) of the Children’s Act 38 of 2005 empowers a court to suspend any or all parental responsibilities and rights for a period, to terminate completely any or all such rights, or to limit the parental responsibilities and rights of a parent. However, this power must be read in conjunction with section 28(1)(b) and the constitutional imperative in section 28(2) that a child’s best interests are of paramount importance. Section 9 of the Children’s Act mandates that in all matters concerning the care, protection and wellbeing of a child, the standard that the child’s best interest is of paramount importance must be applied, whilst section 7(1) details the factors that must be considered where relevant in applying this standard.
Does the paramountcy of a child’s best interests mean that it is an absolute consideration that trumps all other rights?
No. Whilst a child’s best interests are paramount, they are not absolute. The Constitutional Court in S v M (Centre for Child Law As Amicus Curiae) held at paragraph 26 that like all rights in the Bill of Rights, the operation of children’s best interests must take account of their relationship to other rights, which might require that their ambit be limited. The P v P judgment further explained that parenthood is a fundamental and life-affirming human experience, and where it is difficult to discern what course of action will best advance the child’s interests, the parents’ respective interests may come to the fore. In cases where the child’s best interests are clear and adverse to a parent’s interest in performing a parenting role, the former must always prevail, but this does not automatically occur in every case.
What discretion does a court have under Rule 6(5)(g) when an application cannot properly be decided on affidavit?
Rule 6(5)(g) of the Uniform Rules of Court provides a court with three alternatives when an application cannot properly be decided on affidavit. First, the court may dismiss the application. Second, it may direct that oral evidence be heard on specified issues with a view to resolving any dispute of fact, including ordering any deponent to appear personally or granting leave for deponents or other persons to be subpoenaed to appear and be examined and cross-examined. Third, the court may refer the matter to trial with appropriate directions as to pleadings or definition of issues. The exercise of this discretion is not unfettered, and courts must be astute to prevent abuse of process by litigants intent on delay or fishing expeditions to ascertain whether there might be a defence without credible reason to believe one exists.
Under what circumstances will factual disputes in motion proceedings warrant referral to oral evidence or trial?
The Room Hire case outlined three principal circumstances in which disputes of fact may arise warranting oral evidence or trial. First, where the respondent denies all material allegations made by the applicant’s deponents and produces or will produce positive evidence by deponents or witnesses to the contrary, including witnesses not presently available or who would give evidence viva voce if subpoenaed. Second, where the respondent admits the applicant’s affidavit evidence but alleges other facts which the applicant disputes. Third, where the respondent concedes no knowledge of main facts stated by the applicant but denies them, putting the applicant to the proof and giving or proposing to give evidence showing that the applicant and deponents are biased, untruthful or otherwise unreliable, and that certain facts upon which the applicant relies are untrue. The absence of positive evidence directly contradicting the applicant’s main allegations does not render the matter free of a real dispute of fact.
Is there an onus of proof in the conventional sense in family law proceedings concerning children’s best interests?
No. The M v M judgment at paragraph 24 held that the discretion exercised when decisions pertaining to children’s best interests are made is unique and requires no onus in the conventional sense. This approach aligns with Jackson v Jackson at paragraph 5, which established that where minor children’s interests are involved, litigation amounts to a judicial investigation of what is in their best interests, and the court is not bound by the parties’ contentions. The court sits as upper guardian of all minors within its jurisdiction. However, Notyesi AJ clarified that this does not absolve parties of responsibility to present credible evidence, particularly where serious allegations are made seeking to alter established arrangements. Where there is an existing court order and an applicant seeks to suspend it based on serious allegations, there would be reason to require the applicant to bear an evidential duty.
How does the Plascon-Evans rule apply in family law matters involving children?
The Plascon-Evans rule provides that where disputes of fact arise on affidavits, a final order can be granted only if the facts averred in the applicant’s affidavits which have been admitted by the respondent, together with the facts alleged by the respondent, justify such order. However, in family law matters concerning children, courts must apply this rule with caution. The B v S judgment at pages 584 to 585 held that where a parental couple’s access or custody entitlement is being judicially determined for the first time with no existing court order in place, there is no onus in the sense of an evidentiary burden on either party, as this litigation is not of the ordinary civil kind and is not adversarial. Notyesi AJ distinguished this, holding that the Plascon-Evans rule is not wholly displaced in family law but must be applied cautiously in a fact-specific manner. Where there is an existing order and an applicant seeks to suspend it based on serious allegations, the applicant must produce sufficient evidence. Courts should be slow to determine facts by the usual opposed motion court approach, but this remains fact-specific.
What are the essential requirements for expert reports in family law proceedings involving children?
The K.O v M.S judgment at paragraph 47 emphasized that requirements for expert reports should be strictly complied with to ensure vulnerable children are protected and not exposed to situations where they must satisfy parental expectations or adapt their lives to accommodate a parent’s needs or an expert’s recommendations. Essential requirements include disclosure of the expert’s qualifications and experience; detailed methodology of assessment and investigation; clarity on whether the child was interviewed separately from parents and in what environment; interviews with both parents unless one refuses to participate; objective analysis rather than mere repetition of one party’s allegations; and independence rather than partisan advocacy. The Schneider case at pages 211 to 212 articulated that an expert must provide the court with as objective and unbiased an opinion as possible based on their expertise, not assume the role of advocate, and not give evidence beyond the logic dictated by the scientific knowledge claimed to be possessed.
What is the nature of the discretion exercised by courts in determining children’s best interests?
The discretion exercised by courts in determining children’s best interests is not a discretion in the narrow sense but rather in the broad sense. Knox DÁrcy and Others v Jamieson and Others held that it is a value judgment in which a court must have regard to several disparate and incommensurable features to arrive at a just decision. The M v M case emphasized that this discretion is unique and not to be circumscribed in the narrow or strict sense, distinguishing it from ordinary civil litigation. The P v P judgment at paragraph 69 stated that the court conducts an investigation into the matter in a process that is more inquisitorial than would be acceptable in adversarial proceedings. Nevertheless, where a parent seeks variation of an existing divorce order, it may be appropriate to cast an evidential burden on the applicant to establish on a balance of probability that variation should be granted, though the court can call evidence mero motu.
Can a party seek to supplement their case through oral evidence where the case is not already made out on the papers?
No. The principle is well established that a litigant’s case stands or falls on their own averments. The D&F Wevell Trust case and Carr v Uzent at page 390 held that a party may not seek to lead oral evidence to make out a case for the first time where the case is not already established on the papers. The Carr judgment stated that Rule 9 was never designed to enable an applicant to amplify affidavits by additional evidence where the affidavits themselves, even if accepted, do not make out a clear case but leave the case ambiguous, uncertain, or fail to make out a cause of action at all. Notyesi AJ applied this principle to reject the mother’s interlocutory application, finding that the true intention was to supplement her case rather than resolve genuine material disputes of fact, particularly where she had failed to tender contrary expert evidence, had offered no explanation for failure to call evidence timeously, and had not set out the nature and extent of evidence to be led by intended experts or additional witnesses.
What weight should be given to uncontested expert evidence from independent investigators?
Uncontested expert evidence from independent investigators should be accorded serious weight, particularly where the expert has followed established methodologies and the opposing party has tendered no contrary evidence. Notyesi AJ held that Captain Gcabashe’s report, being uncontested and from an independent expert with 23 years’ experience as a social worker including 14 years working with children, should be given serious consideration. The court found no fault with her methodology or conclusions and accepted her finding that there was prima facie evidence of coaching of the child. Similarly, the Family Advocate’s report and the court-appointed forensic psychologist’s report were entitled to significant weight given their independence, comprehensive engagement with both parties, and adherence to established professional protocols. By contrast, expert reports prepared for one party which lack proper methodology, fail to engage with both parties, or reflect partisan advocacy will be accorded little weight.
How does the conduct of a party during proceedings affect the court’s assessment of credibility in motion proceedings?
The conduct of a party throughout proceedings assumes critical importance in assessing credibility, particularly where clear falsity must emerge from the papers to justify a robust approach. Notyesi AJ scrutinized the mother’s conduct comprehensively, finding that her failure to take protective steps after allegedly discovering abuse in July 2023, her continuation of the father’s contact with the child, her failure to raise allegations during contemporaneous contempt proceedings, her refusal to cooperate with the court-appointed forensic psychologist, and her tactical deployment of an interlocutory application shortly before the hearing all undermined her credibility. The court held that a reasonable parent genuinely concerned about sexual abuse would have obtained professional assessment, arranged therapy, and initiated investigation immediately. The timing of allegations emerging only after adverse rulings in contempt proceedings suggested retaliatory motive rather than genuine concern. Courts are entitled to draw adverse inferences from such patterns of behaviour when evaluating whether allegations are credible.
What test applies when determining whether to adopt a robust approach and decide motion proceedings on probabilities?
The South Coast Furnishers case at paragraph 15 held that the test is similar to that applied at trial when absolution from the instance is sought before the defence case commences: whether there is evidence upon which a reasonable presiding officer might or could find for the plaintiff. If there is, absolution should be refused. The court does not evaluate credibility of witnesses unless they have palpably broken down and where it is clear they have stated what is not true. Similarly, in motion proceedings, a robust approach can only be taken and the matter decided on probabilities if clear falsity emerges from the papers. Notyesi AJ applied this test and found that clear falsity had emerged from the mother’s version, including the uncontested evidence of coaching from Captain Gcabashe’s report, the withdrawal of criminal charges for lack of evidence, the mother’s refusal to cooperate with investigation, her failure to tender contrary expert evidence, and conduct inconsistent with genuine belief in abuse.
What factors indicate that an interlocutory application for referral to trial may be an abuse of process?
Several factors may indicate abuse of process. The D&F Wevell Trust case cautioned that courts must be astute to prevent abuse by unscrupulous litigants intent on delay or fishing expeditions to ascertain whether there might be a defence without credible reason to believe one exists. In this case, Notyesi AJ identified multiple indicators: the application was brought mere weeks before the hearing date after lengthy inaction following the August 2024 order; it was the opposing party who set the matter down for hearing, not the applicant; the applicant sought a second opportunity to be interviewed after deliberately declining the first opportunity; the applicant wished to appoint her own expert but had never been refused this right and had not exercised it timeously; the applicant failed to set out the nature and extent of evidence to be led by intended experts; no explanation was provided for failure to call evidence earlier; and no contrary expert opinion was tendered. These factors demonstrated that the application was a stratagem to delay finality rather than a genuine attempt to resolve material disputes.
How should courts approach cases involving protracted litigation in family law matters concerning children?
Courts should recognize that protracted litigation involving minor children is undesirable as a matter of principle. Best interests of children must be expeditiously determined. Where there are allegations of abuse of a minor, there is particular urgency for finalization. Notyesi AJ held that protracted litigation and repeated court appearances traumatize both parents and the minor child. The litigation history in the matter was unsatisfactory, with the case remaining moribund from August 2024 until June 2025 when the father set it down for hearing. The court emphasized that once interim relief was granted, the mother showed loss of appetite for finality of the case. Where clear falsity emerges from the papers, robust determination on affidavit serves the child’s interests by providing finality and allowing resumption of meaningful relationships with both parents free from the shadow of unproven accusations. The best interests of children are not served by permitting unmeritorious cases grounded in unsubstantiated allegations to proceed to lengthy trials.
On what basis may costs be awarded against an unsuccessful applicant in family law proceedings concerning children?
Whilst the general rule is that costs follow the result, courts retain discretion in family law matters. The unsuccessful applicant in this case sought an order that each party pay its own costs, arguing that a costs award would prolong the acrimonious relationship between the parties. However, Notyesi AJ rejected this submission, holding that the conduct of the applicant had been unsatisfactory. The court took a dim view of the mother’s refusal to cooperate with the court-appointed clinical psychologist. The allegations against the father were disparaging and humiliating to him as a parent. All of this could have been avoided by forensic investigation which the mother had avoided. The court declined to grant costs on a punitive scale despite the father’s request for scale C, instead awarding costs on the ordinary party and party scale including costs of counsel on scale A. This reflects the principle that whilst costs discretion is broad in family law matters, serious misconduct including making unsubstantiated allegations of abuse and refusing to cooperate with court-ordered investigations may warrant costs awards.
Written by Bertus Preller, a Family Law and Divorce Law attorney and Mediator at Maurice Phillips Wisenberg in Cape Town and founder of DivorceOnline and iANC. A blog, managed by SplashLaw, for more information on Family Law read more here. For free and useful Family Law tech applications visit Maintenance Calculatorand Accrual Calculator.
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