- The High Court found that the magistrate misapplied the law and ignored the social worker’s recommendation, reinstating the father’s parental rights.
- The minor child will reside with the father from 13 December 2025, with transitional support arranged.
- The court criticised reliance on the child’s sister and the extension of maternal preference to the grandmother as legally untenable.
A father from the North West has won a long battle to regain his parental rights after the Mahikeng High Court overturned a magistrate’s ruling that placed his son in the care of the child’s maternal grandmother.
The dispute began after the child’s mother died in April 2021, leaving him in the temporary care of the grandmother during the COVID-19 lockdown.
The father and the mother had been married under customary law, which automatically granted him full parental responsibilities. Days after the mother’s death, both sides agreed in writing that he would collect his son on 3 May 2021. When he arrived, the grandmother refused and insisted that the matter be decided in court.
The Orkney Magistrates’ Court heard the case in March 2022, but the ruling was only delivered in September 2025. During the proceedings, a social worker interviewed all parties, visited both homes, and recommended that the child be placed in the care of his father. The magistrate rejected this recommendation, prompting the appeal.
“There was no factual basis for the magistrate to have discounted the report of the social worker. This factual finding was wrong given the social worker’s finding that the appellant was a suitable caregiver,” Acting Judge B Matlhape wrote, with Judge A Reddy concurring.
Reliance on sibling’s fears rather than the child’s best interests
The magistrate had emphasised the fears of the minor child’s older sister, who said she was afraid of losing her brother. The High Court found this reliance misplaced.
“The views considered by the magistrate in this instance are not those of the minor child in question, but those of the minor child’s sister. The magistrate should neither have over-emphasised the views of the minor child’s sibling nor relied upon them to arrive at a decision,” the judge wrote.
The magistrate extended the maternal preference principle to the grandmother and claimed the deceased mother had appointed her as guardian. The High Court rejected both conclusions. “The magistrate’s extension of the maternal-preference principle to a grandmother is untenable,” the judgment stated.
The suggestion that a cousin could care for the child if the grandmother failed was described as “not only legally incorrect but constitutes a serious miscarriage of justice.”
Judgment-based analysis
The High Court highlighted that appellate courts only intervene in the factual findings of lower courts if they are clearly wrong.
“The powers of a court of appeal to interfere with the findings of fact of a trial court are limited. In the absence of any misdirection, the trial court’s conclusion…is presumed to be correct,” the judgment quotes S v Francis.
In this case, the magistrate misapplied the best-interests principle under Section 7 of the Children’s Act, relied on speculation and irrelevant considerations, and failed to weigh all relevant factors. Prior case law, including M v M and S v J, was found distinguishable and did not justify depriving the biological father of his rights. The father’s suitability as primary caregiver, confirmed by the social worker, remained unrefuted.
The court emphasised that parental responsibilities may not be displaced in favour of extended family without lawful grounds, and Section 10 of the Act requires the child’s own views to be considered rather than those of siblings.
Return to the father with structured support
The High Court restored the father’s full parental responsibilities and rights and ordered that the child reside with him from 13 December 2025. Until then, the father will have contact every second weekend, and the Department of Social Development will facilitate the child’s transition. No costs were awarded.
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