- A clinical psychologist recommended that the father receive primary care of his biological son, while the family advocate and family counsellor recommended shared care.
- Judge Kganyago found no evidence that the mother’s current psychological condition placed the child at risk.
- The father’s application for interim care of both children was dismissed with costs, with an existing court order preventing him from claiming care of his stepson.
The High Court in Polokwane has dismissed a father’s application for interim primary care of his biological son, finding insufficient evidence to justify changing the child’s existing living arrangements.
In a judgment delivered on 6 October 2026, Judge MF Kganyago considered conflicting recommendations from clinical psychologist Zelda Buitendag and the family advocate and family counsellor.
Buitendag recommended that the father receive primary care, expressing concerns about the mother’s psychological functioning, while the family advocate and family counsellor recommended that the parents share care of their son.
The father alleged that his wife had emotionally and physically abused him, including slapping and punching him, sometimes while under the influence of alcohol. He argued that her behaviour raised concerns about the children’s safety and wellbeing. The mother denied that the children were at risk in her care.
Judge questions psychological assessment
Buitendag identified symptoms and characteristics that possibly indicated borderline personality disorder, anxiety, and mood disorders in the mother. However, a psychiatrist who assessed her in June 2026 concluded that she was unlikely to meet the diagnostic criteria for borderline personality disorder at that time.
Judge Kganyago questioned whether Buitendag could diagnose the mother with a mental illness without a proper assessment by a psychiatric expert. The judge also noted concerns about the father’s past alcohol use and possible symptoms of stress and anger identified in his psychological assessment.
The report did not explain how these issues might affect the child if he lived primarily with his father. The family advocate and family counsellor considered both parents caring and responsible.
They recommended that the child alternate between the parents’ homes each week, from Sunday at 5pm until the following Sunday at 5pm. They found no allegations that either parent had subjected the child to abuse or ill-treatment.
The child had remained primarily in his mother’s care since June 2025. Judge Kganyago found no evidence that the child had suffered harm or that the mother’s current psychological condition placed him at risk. The judge said the conflicting expert recommendations required further examination and noted that hearing evidence from both experts could help explain their conclusions.
Existing order prevents claim for stepson
The father also sought interim primary care of his wife’s son from a previous marriage, whom he had raised as his own. However, an existing order from the wife’s previous divorce had awarded her primary care and residence of the older child and had not been varied or set aside.
Judge Kganyago upheld the wife’s objection, finding that the father had not sought primary care of the older child in the main divorce proceedings and had brought his application under Rule 43 rather than Sections 23 and 24 of the Children’s Act.
The court dismissed the application with costs on the party-and-party scale, leaving the existing care arrangements unchanged.
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