The respondent (Ms NDN) applied to the children's court for contact with her two minor grandsons (LM and AM) in terms of section 23 of the Children's Act. The boys were born to her deceased daughter (Bokkie) and the appellant (Mr YCM), an advocate. The mother died in a motor vehicle accident on 22 May 2022. The boys remained in the care of their father in Makhanda. Ms NDN, a retired nurse living in Herschel, had maintained contact with her daughter and the boys throughout their lives, despite working in the UK. After the mother's death, Ms NDN cared for the boys for six weeks. Mr YCM initially agreed to allow the boys to visit her but later reneged, stating he decided to cut all ties with the maternal family for the well-being of his children. The children's court granted Ms NDN telephonic contact weekly, monthly visits in Makhanda, and week-long visits to Herschel during school holidays. Mr YCM appealed, claiming the decision was not in the boys' best interests due to alleged animosity between the parties and safety concerns.
The appeal was dismissed save for modifications to the order's structure. The order was varied to specify: (1) telephonic contact once weekly on Mondays 18h00-19h00; (2) monthly visits in Makhanda on the third Sunday from 09h00-17h00; (3) week-long visits to Herschel during mid-year holiday (first Sunday at 09h00, returning first Saturday at 17h00) and year-end (29 December at 09h00, returning 4 January at 17h00); (4) Department of Social Development to provide supervision during first two Herschel visits commencing mid-2025. No order as to costs.
In applications for contact under section 23 of the Children's Act, the best interests of the child is the paramount and decisive consideration. These proceedings are non-adversarial judicial investigations; neither party bears an onus. The common law distinction between parents with inherent access rights and non-parents has been superseded by the Children's Act. A custodial parent's implacable opposition to contact, where lacking reasonable foundation in relation to the child's welfare, will not preclude contact being granted. The child's right to maintain connections with extended family, culture and tradition (section 7(1)(f)) is an important consideration. Courts must consider all relevant factors in sections 7(1) and 23(2) when determining best interests. Grandparents and other interested persons have standing under section 23 to seek contact. The inherent entitlement to contact is that of the child, not the parent.
The court observed that grandparents are "as necessary to a child's growth as vitamins" and that it is usually in a child's best interests to maintain close relationships with grandparents. Eksteen J noted that "if an absence of stress should be the criterion for deciding access cases hardly any access would be granted" and cautioned that parties should not be encouraged to think that being "more intransigent, the more unreasonable, the more obdurate and the more uncooperative" will help them get their way. The court commented that selective quotations from earlier common law decisions should be approached with caution given the significant development in the law. The court emphasized that what is required in family feuds is "sober reflection by all concerned" and that children's interests are not best served by "protracted and repeated litigation." The court observed thatvisitation at a police station would be "most inappropriate" for children's emotional and psychological well-being.
This case affirms the child-centered approach under the Children's Act and demonstrates that: (1) grandparents and extended family members have standing to seek contact under section 23; (2) the best interests of the child is paramount, not parental rights or preferences; (3) 'implacable opposition' by a custodial parent lacking reasonable foundation will not defeat contact applications; (4) contact applications are non-adversarial judicial investigations, not ordinary litigation with an onus on the applicant; (5) maintaining connections with extended family, culture and tradition is an important factor under section 7(1)(f); (6) courts will structure orders to facilitate contact even where relationships between adults are strained. The judgment provides important guidance on the evolution from common law access rights (based on parental authority) to the constitutional and statutory framework recognizing the child's inherent right to family relationships.