The South Gauteng High Court in Johannesburg has dismissed an urgent application by a father seeking the return of his five-year-old son to the former matrimonial home, ruling that the child’s best interests would be served by remaining in the care of his mother pending a full forensic investigation.
In a recent ruling, Judge Motsamai Makume refused the father’s request to compel the mother to return the child to the family home after she moved out in November 2025 following the breakdown of their marriage.
The couple, who married in community of property in 2016, share a son born in November 2020. The father, a software engineer employed at MultiChoice, continues to reside at the former matrimonial home in Johannesburg. The mother, a self-employed beautician, relocated with the child to another residence in the city, where they now live with her retired parents.
The move followed the granting of an interim protection order in favour of the mother in terms of the Domestic Violence Act. The order prohibited the father from entering her new residence but allowed him contact with the child pending further proceedings.
After being served with the protection order in November 2025, the mother left the matrimonial home with the child and certain movable assets. The father subsequently launched an urgent High Court application seeking the child’s return, arguing that the boy would suffer irreparable emotional and psychological harm if not restored to his care.
Although the court noted that the father had been aware as early as July 2025 that the mother intended to leave with the child, Judge Makume exercised his discretion to hear the matter urgently, emphasising that issues concerning the best interests of a minor child are inherently urgent.
Central to the court’s decision was section 7 of the Children’s Act, which outlines factors to be considered in determining a child’s best interests, including the nature of the child’s relationship with each parent and the likely effect of any change in circumstances.
Judge Makume found that the father had failed to provide sufficient evidence to support his claim that the child would suffer harm if he remained with his mother. He noted that while both parents had previously shared responsibilities, the father relied heavily on a nanny and domestic worker for the child’s daily care — including employing a night nanny from 4pm to 9am.
The judge questioned the credibility of affidavits submitted by the domestic workers in support of the father’s case, describing them as biased and containing allegations not raised in the father’s original papers.
For instance, the nanny said the mother used to sneak out of the house at night and returned in the morning.
However, judge Makume said this version which should have been known to the father, was never mentioned in the founding affidavit.
“It is clear that the nanny is biased against the respondent (mother)…The domestic workers have clearly been schooled what to say. I do not believe what they say,” he said.
The judge said the father made a bold statement to the effect that the minor child will suffer emotional and psychological harm if not returned to him and yet he failed to set out what would cause the harm and why it will amount to psychological and emotional harm.
Furthermore, the judge noted that the father failed to provide a realistic insight into the daily routine and needs of the child.
“This, in my view, demonstrates that it is the nanny and the domestic worker who carry out parental responsibilities over the minor child.”
By contrast, the court found no evidence suggesting that the mother was unfit to care for the child. She works from home and is present before and after school, and the child now resides in a three-bedroom home with his maternal grandparents, fostering extended family support.
A letter from one of the child’s teachers indicated that since July 2025, the child had shown signs of separation anxiety during school drop-offs when parting from his mother — a factor the court considered significant in assessing the child’s emotional bonds.
Judge Makume emphasised the importance of stability and routine in the lives of young children. He concluded that the mother had acted appropriately in removing the child from what he described as an environment marked by conflict, abuse and insults. The protection order, he said, was obtained to safeguard both her and the child.
“The applicant has failed to make out a case for the return of the minor child.”
Importantly, the court noted that the mother’s proposed order provided the father with reasonable contact and access rights pending the outcome of a comprehensive forensic investigation. An expert has already been appointed to assess and make recommendations regarding the child’s long-term primary residence.
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Sinenhlanhla Masilela
iol.co.za
