The applicant, DR, and the first respondent, NM, were a same-sex couple who married on 29 April 2023 under the Civil Union Act 17 of 2006 but later separated. No children were born of their marriage. The applicant had two biological sons born via surrogacy. The first respondent had a daughter, WML, born via surrogacy during his prior marriage to the second respondent, RL, and a son, LM, also born via surrogacy in April 2022, after the divorce from the second respondent but before marrying the applicant. The applicant lived with the first respondent and all four children from mid-2020 until February 2024, functioning as a blended family unit. Although the applicant had no legal parental rights to WML or LM, he was heavily involved in their daily care—especially during the first respondent's periods of mental health incapacity including hospitalisation for bipolar depression. In February 2024, the first respondent left the shared home with his two children and moved to his mother's house. The applicant sought urgent interim primary care of WML and LM under section 23(1)(b) of the Children's Act 38 of 2005 but later abandoned primary care in favour of interim contact and assessment by an expert.
1. Non-compliance with rules regarding time periods and service was condoned and Part A was heard as urgent. 2. The matter was postponed sine die. 3. Pending final determination of Part B, the applicant was granted contact with LM on Tuesdays after school until 08h00 Wednesday; every alternate weekend from after school Friday until 08h00 Monday; and shared long and short school holidays as agreed. 4. Regarding WML, contact was granted on terms agreed between the first and second respondents. 5. Leigh Pettigrew was appointed as the applicant's expert to conduct an assessment and compile a report on future contact arrangements in the children's best interests. 6. Terry Dowdall was appointed as the first respondent's expert for the same purpose. 7. The experts were authorised to conduct interviews and observations. 8. The applicant was directed not to post pictures of the minor children on social media. 9. The Office of the Family Advocate was directed to conduct a care and contact assessment. 10. Costs of Part A stood over for later determination.
1. Under section 23(1) of the Children's Act 38 of 2005, any person having an interest in the care, well-being, or development of a child may apply for contact or care, provided the requirements of section 23(2) are met. 2. When determining contact under section 23, the court must consider: the best interests of the child; the relationship between the applicant and the child; the degree of commitment shown by the applicant towards the child; the extent to which the applicant has contributed towards expenses of the child's birth and maintenance; and any other relevant fact. 3. The best interests of the child, as protected by section 28(2) of the Constitution, is the paramount consideration and requires that an investigation to determine the child's best interests not be precluded simply because the child already has two parents with full parental rights and responsibilities. 4. An expert assessment to determine what is in the child's best interests does not per se take away existing parental rights or confer new rights—it is a fact-finding exercise to inform the court's determination.
The court observed that siblings experiencing the trauma of divorce tend to form a bond with each other that gives them a feeling of security against external onslaught, referencing Van der Linde v Van der Linde 1996 (3) SA 509 and C v C and Another [2016] ZAGPPHC 273. The court also noted that section 6(4) of the Children's Act promotes conciliatory and problem-solving approaches over confrontational ones, and that the expert investigation is such a conciliatory process.
This case is significant as an application of section 23 of the Children's Act in a same-sex family context involving children born via surrogacy, where a former same-sex partner without legal parental rights seeks contact with children they helped raise. It confirms that the best interests of the child, as constitutionally mandated, may require maintaining bonds with non-biological, non-legal 'social parents' who have demonstrated significant commitment and a bonded relationship with the children. It also illustrates that existing parental rights do not bar an interested person from seeking contact or from having the child's best interests investigated by experts and the Family Advocate.