The Balancing Act: When Uncles Step In. A Child’s Best Interests, and How a South African Court Navigated Familial Bonds.

D.T and Another v M.A.M.F (2023/032929) [2023] ZAGPJHC 1204 (24 October 2023)

Background and Points in Limine

The case revolved around the first and second applicants, who were the uncles of a 13-year-old minor, S. They were contesting the actions of the respondent, S’s mother, who had changed the minor’s school and living arrangements following the death of S’s father, T, in February 2023. The uncles had a close relationship with S, contributing financially to his upbringing and school fees. They were seeking both rights of contact and guardianship over S under Sections 23 and 24 of the South African Children’s Act. The respondent initially opposed their locus standi but later withdrew her objection, acknowledging that biological links were not the sole factor in determining the best interests of the child. Other technical objections, such as the late filing of affidavits and the striking out of several statements, were deferred to a later stage of the legal proceedings.

The Applicants’ Contentions

The uncles took issue with the respondent’s unilateral decisions affecting S, particularly his removal from P[…] School, where he had been thriving both academically and socially. They argued that these changes were detrimental to S and aimed at weakening their relationship with him. Following the father’s death, S had also stopped participating in various cultural activities and had limited contact with the applicants. They were seeking a court-ordered psychological evaluation of S’s best interests and recommendations from the Family Advocate as part of the initial relief.

The Respondent’s Defence

The respondent refuted that her actions were self-motivated, revealing that S had been traumatised by his father’s death, which occurred at his old school, P[…]. For this reason, he was moved to a new school, H[…], where he was awarded an academic scholarship. Furthermore, a “voice of the child” assessment conducted by a social worker indicated that S wished to live primarily with his mother and only visit the applicants occasionally. He did not view the uncles as father figures, despite having a good relationship with them.

The Respondent’s Reliance on Expert Assessment

The respondent leaned heavily on the assessment conducted by Dr. Bosch-Brits, a social worker, arguing that the minor child S’s voice should be respected and given weight. According to the report, S expressed a desire to live with his mother and have only occasional visits with the applicants, his uncles. The respondent felt that, based on this report, S should initiate contact with the applicants himself, especially as they had previously made upsetting comments to him about his school move. Thus, the respondent opposed both Part A and Part B of the application, basing her opposition on the strength of Dr. Bosch-Brits’ report.

Legal Principles and Court Discretion

The court clarified its role as the upper guardian of all children whose best interests are at stake. It emphasised that it is not bound by procedural structures or limited by the evidence and contentions brought forth by the parties. Drawing on precedent, the court underscored that this type of litigation is not adversarial in nature but is more of a judicial investigation into the child’s best interests. Section 7 of the Children’s Act was cited, listing various factors that should be considered when determining a child’s best interests. These include the nature of the personal relationship between the child and the parents or caregivers, the child’s emotional and intellectual needs, and the need to protect the child from any form of harm, among others.

Court’s View on Child’s Best Interests

The court rejected the respondent’s argument that S’s wishes, as articulated in Dr. Bosch-Brits’ report, should be the sole determining factor in what is in his best interest. The court stressed that its duty is to establish what is truly in the child’s best interests, which may not align with the child’s wishes. It found Dr. Bosch-Brits’ report insufficient as it was not comprehensive enough and only focused on Section 10 of the Children’s Act. The court emphasized the need for a complete investigation based on the various factors outlined in Section 7 of the Children’s Act.

Further Investigations and Interim Contact

The court found no basis for the respondent’s contention that any expert appointed should be mutually agreed upon. The applicants had already suggested Dr. Fasser and agreed to cover the costs. The court also granted reasonable interim contact to the applicants, acknowledging the positive relationship that S had with them, especially with the second applicant, who is his godfather. The court considered this in light of Dr. Duchen’s opinion that thorough assessments are essential for determining residency and contact.

Court’s Conclusion and Order

The court concluded that the applicants had made a strong case for the relief sought in Part A of the application. It granted the appointment of Dr. Fasser and the Family Advocate to investigate S’s best interests. The court also granted reasonable interim contact to the applicants with specific schedules. Both parties were also granted leave to deliver further affidavits after receiving Dr. Fasser’s report. The costs of the application were reserved for determination under Part B.


This case serves as a crucial legal precedent for several reasons, most notably for its intricate balancing of the child’s expressed wishes, psychological assessments, family dynamics, and overarching legal principles outlined in the Children’s Act. It highlights the court’s pivotal role as the upper guardian of minors, emphasising that its ultimate duty is to determine what is genuinely in the best interests of the child.

The case also sets a significant benchmark for how courts should approach expert psychological assessments, underscoring the need for comprehensive investigations rather than relying solely on limited reports.

Judge Nkutha-Nkontwana’s findings appear to be both judicious and aligned with the legal and ethical imperatives to safeguard the child’s best interests. By granting interim contact to the uncles, the court acknowledged the importance of maintaining familial bonds that have been nurtured over many years, especially given the traumatic backdrop of the father’s sudden demise.

At the same time, by not treating the child’s expressed wishes as sacrosanct, the court exercised its discretion wisely, recognising that children may not always be fully aware of what is in their long-term best interests.

The court’s decision to appoint an independent expert, Dr. Fasser, for a thorough investigation ensures that a more holistic view will be adopted, taking into account various factors like emotional and intellectual needs, familial relationships, and the impact of recent life changes on the child. In doing so, the court has laid down a comprehensive and thoughtful framework for future cases that involve complex family dynamics and contested guardianship issues.

Summarised by Bertus Preller, a Family Law and Divorce Law attorney at Maurice Phillips Wisenberg in Cape Town. A blog, managed by SplashLaw, for more information on Family Law read more here.