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[2007] ZASCA 88
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Central Authority v H. (262/06) [2007] ZASCA 88; [2007] SCA 88 (RSA); 2008 (1) SA 49 (SCA) (4 June 2007)

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THE SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
CASE
NO: 262/06
Reportable
In the matter between
central
authority
Appellant
and
B.H.
Respondent
Coram
:
Farlam,
Heher, Van Heerden, Maya JJA et Hancke AJA
Heard:
17
May 2007
Delivered: 4
June 2007
Summary: Minor –
wrongful retention of – Hague Convention on the Civil Aspects of
International Child Abduction (1980) – defences
– article 13(a) –
consent to retention – onus on parent raising the defence – no
real or genuine dispute of fact raised
on consent issue –
expeditiousness essential at all stages of the Convention process,
including appeals
Neutral citation: This
judgment may be referred to as
Central Authority v Houwert
[2007]
SCA 88 (RSA)
JUDGMENT
VAN HEERDEN JA:
Introduction
This
appeal concerns a little boy (N) who was born on 1 May 2002 and is
now five years old. He was brought to South Africa by
his mother,
the respondent, from Zandvoort, the Netherlands, in September 2003.
Both he and his mother are still in South Africa,
presently living
in Pretoria with the maternal grandparents.
On
24 June 2004, the appellant applied to the Pretoria High Court in
terms of the Hague Convention on the Civil Aspects of International

Child Abduction (1980) (the Convention), as incorporated into South
African law by the Hague Convention on the Civil Aspects
of
International Child Abduction Act 72 of 1996 (the Act),
1
for an order directing the immediate return of N to the Netherlands.
On
14 June 2005, Van Oosten J in the Pretoria High Court made an order
in, inter alia, the following terms:
‘
1.
That the respondent [the mother], if oral evidence is required:
1.1 Be ordered to return
to the Netherlands for the purpose of attending and/or opposing the
custody hearing in respect of the
minor child, N v H.H. (“the
minor”).
1.2 Return to the
Netherlands seven days prior to the hearing of the custody hearing.
2.
That the father of the minor child shall give the respondent’s
attorneys 30 days notice prior to the date of the hearing in
the
Netherlands of such date.
3.
That the father of the minor child is ordered to:
3.1
Purchase a return ticket for the respondent and the minor child.
3.2 Provide free
accommodation for the respondent and the minor child at [address],
Zandvoort and the father will move out from
such address for the
duration of the respondent’s stay aforementioned in the
Netherlands.
3.3 Pay the respondent
500 euro maintenance upon her arrival in the Netherlands and which
amount will be a maintenance payment
for a period of 10 days. If the
matter should proceed after this period he shall be obliged to pay a
further amount of maintenance
in the amount of 50 euro per day.
4.
If the custody hearing is postponed for any reason whatsoever the
respondent and N will return to South Africa.
5.
In the event of the respondent and the minor child having to return
to the Netherlands for a continuation of the custody hearing,
the
provisions as set out in paragraph 3 above will apply.
6.
Each party to pay their own costs.’
This
order was more or less identical to a draft order prepared by counsel
for the mother at the request of the court a quo. In
fact, it
appears from the judgment that, after hearing argument, the learned
judge requested counsel for the parties to each prepare
a draft order
providing for N’s return to the Netherlands ‘for the purpose of
determination of the custody dispute’ and that
both duly complied
with his request.
On 28 June 2005, the
appellant applied to the Pretoria High Court for leave to appeal to
the Full Court, which application was
refused on 28 September 2005.
On 23 February 2006, this Court condoned the late filing of the
appellant’s application for
leave to appeal and granted leave to
appeal to this Court, ‘conditional upon the appeal against the
order of the Haarlem Court
dated 27 September 2005, succeeding’.
I will return in due course to the significance of the proceedings
in the Dutch courts.
Suffice it at this stage to say that the
appeal against the said order of the Haarlem Court did indeed
succeed, on 23 March
2006, hence the present proceedings.
Background
The
father, who is presently 31 years old, is a citizen of the
Nether­lands. He met N’s mother, who was born and bred in

South Africa and who is now also 31 years old, in 1998 in the
Netherlands, where she was working as an au pair. After living

together for several years, first in Haarlem and then in Zandvoort,
they were married in Pretoria on 15 July 2000 and thereafter

returned to the Netherlands. Their son, N, was born in Zandvoort on
1 May 2002 and is also a citizen of the Netherlands. The
mother has
dual South African and Dutch citizenship.
On
25 September 2003, the mother and N left the Netherlands for South
Africa, travelling on return tickets. It is common cause
that the
father consented to his wife’s taking N to South Africa at that
time. However, according to the father, the agreed
purpose of the
visit to South Africa was an extended holiday, for no longer than
three months, as the mother was homesick and
needed some time to
herself. The mother’s version is that they had jointly decided to
emigrate to South Africa and make their
permanent home there with N;
that it was agreed that she and N would travel to South Africa by
themselves in September 2003,
leaving the father behind to wind up
the family’s affairs in Holland, and that the father would join
them in South Africa ‘by
December 2003’.
In
about January 2004, the mother informed the father that she was not
returning to the Netherlands, but would remain in South
Africa with
N on a permanent basis. The mother says that the father informed
her during December 2003 that he would be joining
them in South
Africa only in March 2004 and that, after December, it became
apparent to her that their marriage relationship,
which had been
deteriorating for some time, had broken down irretrievably. In
consequence, she telephonically discussed the
question of divorce
with him in January 2004, only to be told that he had already
consulted a lawyer in Holland in that regard.
According to her,
they agreed that they should be divorced and that she would have
custody of N and stay with the child in South
Africa. It is her
case that there is no question of a ‘wrongful removal’ of N from
the Netherlands or a ‘wrongful retention’
of N in South Africa
within the Convention meaning of these concepts.
2
The
father’s version is again quite different. He states that, when
he asked his wife, in about December 2003, exactly when
she would be
returning to the Netherlands with N, she indicated that she wanted
to stay in South Africa a little longer. He
did not agree to this
and, in the weeks that followed, he realised that she had misled him
and that she had in fact ‘abducted’
his son by retaining him in
South Africa after the period of the agreed holiday visit had
expired. It was at this stage (in
about February 2004) that he
consulted the Dutch Central Authority with a view to effecting N’s
return to the Netherlands under
the auspices of the Convention. His
case is that, sometime in December 2003, the mother wrongfully
retained N in South Africa
and that it was this wrongful retention
that gave rise to the application to the Pretoria High Court.
It
is common cause that, at the time of the alleged wrongful retention
of N in South Africa in December 2003, the little boy was
habitually
resident in the Netherlands. It is clear from the extract from the
Dutch Civil Code annexed to the appellant’s
founding affidavit, as
well as from the correspondence addressed by the Dutch Central
Authority to the (Acting) Chief Family
Advocate of South Africa
which forms part of the record,
3
that both parents were exercising equal custody rights in respect of
their child at that time.
On
3 February 2004, the father completed and signed the necessary
documentation to request the Dutch Central Authority for its
help in
securing N’s return. That Central Authority in turn transferred
the father’s application under the Convention to
the (Acting)
Chief Family Advocate of South Africa
4
in terms of article 9 of the Convention.
5
On 6 April 2004, the latter delegated her Convention powers and
duties in respect of this return application to Mr Gerhard van
Zyl,
then a family advocate based in Pretoria.
6
Mr van Zyl attempted to correspond with the mother by registered
mail dated 19 April 2004, but this letter was returned unclaimed.
A
few days later, upon receipt of a copy of the divorce summons issued
by the mother against the father in the Pretoria High
Court, he
ascertained that she was represented by attorneys, with whom he
immediately made telephonic contact and arranged a
meeting with the
mother and her local attorney for 28 April. Pursuant to that
meeting, Mr van Zyl informed the mother’s attorneys
in writing
that she was ‘retaining N wrongfully in South Africa’ and put
her to terms to agree to a voluntary return with
N to the
Netherlands. Shortly thereafter, Mr van Zyl resigned from the
Office of the Family Advocate and, on 10 May 2004, Ms
Cheryl
Grobler, also a family advocate based in Pretoria, was delegated by
the Acting Chief Family Advocate to deal with this
matter in Mr van
Zyl’s stead. The latter’s delegation was withdrawn on the same
day.
By
letter dated 9 June 2004, Ms Grobler informed the mother’s
attorneys that an application under the Convention for the return
of
N to the Netherlands was about to be launched against her. Ms
Grobler requested the attorneys to suspend the South African
divorce
proceedings instituted by the mother against the father in March
2004 – in which she was claiming inter alia custody
of and
maintenance for N – as well as her subsequent application in terms
of Uniform Rule 43, pending a decision in the forthcoming
return
application.
7
As
indicated above, the return application was instituted in late June
2004. Ms Grobler deposed to the main founding affidavit.
For some
(unexplained) reason, the father was not joined as a co-applicant,
as is usually the case when a return application
under the
Convention is instituted by the Central Authority.
8
The application was opposed by the mother. In her answering
affidavit, filed only on 15 November 2004, she relied mainly upon

her allegation that the father had consented to the permanent
removal of N to South Africa and that her retention of N in this

country after December 2003 was therefore not ‘wrongful’ for the
purposes of the Convention. In essence, she raised a defence
in
terms of article 13(a) of the Convention, which provides as follows:
‘
Notwithstanding
the provisions of the preceding Article, the judicial or
administrative authority of the requested State is not
bound to order
the return of the child [in other words, it has a discretion in this
regard] if the person, institution or other
body which opposes its
return establishes that –
(a)
the person,
institution or other body having the care of the person of the child
was not actually exercising the custody rights
at the time of the
removal or retention,
or
had consented to
or
subsequently acquiesced in the removal or
retention
. . .’
(Emphasis
added.)
The
appellant’s replying affidavit was filed on 21 November 2004,
provoking a supplementary answering affidavit by the mother
which
was filed on 8 June 2005. As already indicated, the Pretoria High
Court delivered its judgment on 14 June 2005, ultimately
giving rise
to the present appeal.
In
the meantime, the father had instituted divorce proceedings against
the mother in the Haarlem District Court on 9 February
2004,
claiming inter alia custody of N. This claim was opposed by the
mother who counterclaimed for sole custody of and maintenance
for N.
On 12 October 2004, the Haarlem court granted a divorce order, but
stayed the proceedings in respect of the custody and
maintenance
issues because of the then pending return application in South
Africa. Subsequently, on 27 September 2005, the Haarlem
court
declared that it did not have jurisdiction ‘to hear the requests
for relief separately submitted by both parties in respect
of the
parental authority and establishment of the principal residence of’
N.
On
23 March 2006, on appeal to it from the Haarlem Court, the Full
Bench Division for Family Matters of the Amsterdam Court of
Appeal
held that –
‘
.
. . the District Court wrongfully concluded that the case had little
connection with the jurisdiction of the Netherlands in order
to be
able to properly judge the interest of the child.’
The
Appeal Court thus ‘annulled’ the judgment of the Haarlem District
Court in this regard and referred the case for further
hearing and
judgment back to that court. The effect of this judgment is, as
explained by the Dutch Central Authority in a letter
to the Acting
Chief Family Advocate dated 9 June 2005, that:
‘
the
last mentioned Court [the Haarlem District Court] will await the
outcome of proceedings before the Supreme Court [of Appeal]
in South
Africa before it will re-initiate proceedings. After it has been
decided in South Africa whether the applicant father’s
request for
return will succeed or whether it will be dismissed, the Court of
Haarlem will decide upon the issues of parental custody
and habitual
residence.’
The object of the
Convention and the proper approach to the article 13(a) ‘defence’
As
has been pointed out by this Court more than once, the purpose of
the Convention is to protect children from the harmful effects
of
their wrongful removal from the country of their habitual residence
to another country or their wrongful retention in another
country.
This the Convention does by establishing a procedure to secure the
prompt return of any such child to the country of
his or her
habitual residence so that custody and similar issues in respect of
the child can be adjudicated upon by the courts
of that country.
9
In
terms of article 12 of the Convention, where the removal or
retention of the child in question is indeed wrongful within the

meaning of articles 3 and 4
10
and, at the date of commencement of the return proceedings before
the judicial or administrative authority of the requested State,
a
period of less than a year after the wrongful removal or retention
has elapsed – as is the case with N – then the authority

concerned is
obliged
to order the immediate return of the child. Even if a period of
longer than a year has elapsed, the authority concerned is still

obliged to order the return of the child unless it is demonstrated
that the child is settled in its new environment.
There
are, however, certain limited exceptions to the mandatory return of
the child, one of which is contained in article 13(a).
11
Once the applicant for a return order under the Convention has
established that the child was habitually resident in the
Contracting
State from which he or she was removed immediately prior
to the removal or retention and that the removal or retention was
wrongful,
then the onus is on the party resisting return to
establish one or other of the defences referred to in articles 13(a)
or (b),
12
or that the circumstances are such that the return of the child
‘would not be permitted by the fundamental principles of the

requested State relating to the protection of human rights and
fundamental freedoms’.
13
Even if the requirements of one or more of these ‘defences’ to
a mandatory return of the child are satisfied, the relevant

authority may still in its discretion order the return of the child.
As indicated above, the
central issue in this case revolved around the article 13(a) defence
of consent. In her heads of argument
filed before this Court, the
mother’s counsel submitted that, because of the lengthy period of
time that N has been in South
Africa, a return to the Netherlands at
this stage would place him in ‘an intolerable situation’ within
the meaning of article
13(b) of the Convention. Although counsel
did not pursue this argument at the hearing before us, it must be
pointed out that
the question of the inordinate delay adversely
impacting on N and creating an ‘intolerable situation’ in the
event of his
return to the Netherlands was not specifically raised
as an issue for determination nor adequately canvassed in the
affidavits
before the court a quo. Had the mother thought it
necessary for this Court to consider that issue, even at this late
stage of
the proceedings, it was open to her to launch an
appropriate application to place before us such additional
information as may
have borne upon that issue. Had this been done,
then the appellant would of course have been entitled to reply.
14
The mother did not, however, follow this route. Although I will
return later in this judgment to the systemic delays which
have
plagued these Convention proceedings, there is in my view no basis
for deciding the matter other than on the central issue
of consent.
As
was pointed out by Hale J in
Re
K (Abduction: Consent)
:
15
‘
.
. . the issue of consent is a very important matter:
“It needs to be proved
on the balance of probabilities, but the evidence in support of it
needs to be clear and cogent. If the
court is left uncertain, then
the ‘defence’ under Art 13(a) fails.”
.
. . [i]t is obvious that consent must be real. It must be positive
and it must be unequivocal.’
16
In
that case, Hale J expressly approved the following view expressed by
Holman J in
Re
C (Abduction: Consent)
:
17
‘
If
it is clear, viewing a parent’s words and actions as a whole and
his state of knowledge of what is planned by the other parent,
that
he does consent to what is planned, then in my judgment that is
sufficient to satisfy the requirements of Art 13. It is not

necessary that there is an express statement that “I consent”.
In my judgment it is possible to infer consent from conduct.’
18
Consent by the
father?
The
main dispute of fact arising from the affidavits relates to whether
or not the father consented, either expressly or tacitly,
to the
continued residence of the mother and N in South Africa on a
permanent basis. As stated already, the onus of establishing
such
consent rests on the mother. As neither party sought to have the
matter referred for the hearing of oral evidence, whether
or not the
‘defence’ of consent will succeed depends upon the uncontested
facts in this regard in the appellant’s founding
affidavit and the
respondent’s (the mother’s) version in her answering papers in
respect of those facts which are the subject
of a ‘real, genuine
or
bona
fide
dispute
of fact’.
19
In a situation where such a dispute exists, the court may well be
obliged, in appropriate circumstances, to refer it for oral
evidence
if there is no other way of deciding the issue. However, any such
reference to oral evidence would have to be strictly
circumscribed
by the essential elements of the defence and the hearing would have
to take place as a matter of urgency. It should
always be borne in
mind that, as pointed out in
Pennello
:
20
‘
[T]he
Convention is framed around proceedings brought as a matter of
urgency, to be decided on affidavit in the vast majority of
cases,
with a very restricted use of oral evidence in exceptional
circumstances. Indeed, there is direct support in the wording
of the
Convention itself for return applications to be decided on the basis
of affidavit evidence alone, and courts in other jurisdictions
have,
in the main, been very reluctant to admit oral testimony in
proceedings under the Convention. In incorporating the Convention

into South African law by means of Act 72 of 1996, no provision was
made in the Act or in the regulations promulgated in terms
of s 5
thereof indicating that South African courts should not adopt the
same approach to proceedings under the Convention as that
followed by
other Contracting States. In accordance with this approach, Hague
proceedings are peremptory and “must not be allowed
to be anything
more than a precursor to a substantive hearing in the State of the
child’s habitual residence, or if one of the
exceptions is
satisfied, in the State of refuge itself”.’
(Footnotes
omitted.)
In
her answering affidavits, the mother alleged that she and the father
discussed the question of a permanent move to South Africa
from
about May 2003 and that these discussions had resulted in a
joint
decision
that the family would
emigrate
to South Africa. However, in a document written by her on 15 April
2004, which was annexed to the appellant’s replying affidavit
as
Annexure ‘G’,
21
she made the following statements:
‘
My
decision to come to S.A. in Sept. 2003 was
firstly my concern for N’s emotional stability and safety and also
to remove myself
from the emotional and verbal abuse and neglect from
Nico [the father] during our short marriage . . .
After
the outburst from Nico’s mother [in September 2003]
I
started making plans and discussing (I thought) with Nico, that I
needed time to think and find myself again.
I
told him I was
taking N with, and going home to S.A.
for an indefinite period,
until I could make a decision
. . .
.
. . I at that stage [immediately prior to her departure for South
Africa on 25 September 2003] just had in mind that I needed
time and
space to think, and decide whether I still wanted this marriage and
to be a part of that family . . .
It
was during this time [in December 2003] that
I
came to the decision
that things would never
work out between Nico and I. In January ’04
I
informed him of my decision
and proceeded to
get an appointment with my lawyer 12
th
Feb. On this visit I asked what the legal position was and what my
rights were . . .’. (
Emphasis added.)
In
support of her ‘defence’ of consent, the mother also relied
quite heavily on the signature by the father of a so-called
‘change
of address form’ at the Zandvoort municipal offices on the day
before she left with N for South Africa. However,
in this regard
too, the mother’s version as set out in her answering papers
conflicts in material respects with her version
as set out in the
abovementioned Annexure ‘G’. There are also other uncontested
facts set out on the papers which detract
from the mother’s
version, and favour the father’s version, on the issue of consent.
So, for example, the mother and N came
to South Africa in September
2003 on return tickets; the mother travelled with only two
suitcases, leaving behind in Zandvoort
the bulk of her personal
belongings such as clothing, photo albums and video tapes of N,
make-up and personal letters, as well
as almost all N’s belongings
such as his clothing and toys; in the few weeks leading up to her
departure from the Netherlands
with N, she and the father purchased
several bulky items of furniture for their home (eg a king-size bed,
a dining table and
chairs etc), all of which would have had to be
shipped to South Africa at considerable expense had the couple
really been planning
to ‘sell up’ in Zandvoort and emigrate to
South Africa.
It
must also be borne in mind that, after the alleged wrongful
retention of his son in South Africa in December 2003, the father

wasted little time in approaching the Dutch Central Authority for
its assistance in securing N’s return under the Convention.
By no
later than 3 February 2004, he had completed all the necessary
documentation in this regard. Whilst not decisive, this
conduct
certainly provides support for the father’s version and is
inconsistent with the notion that he had consented to a
permanent
removal of the child to South Africa.
In
my view, the material contradictions in the mother’s version,
against the backdrop of the papers as a whole, makes it evident
that
the mother did not raise a real or genuine dispute of fact on the
key issue of the father’s consent. There was thus no
sustainable
‘defence’ based on article 13(a).
As
none of the exceptions justifying the non-return of N to the
Netherlands was established on the papers, the court a quo was

obliged in terms of article 12 of the Convention to order N’s
return to that country. This it did not do, instead ordering
the
mother
to return to the Netherlands ‘for the purposes of
attending and/or opposing the custody hearing in respect of’ N,
and that
only ‘if oral evidence is required’. That order
clearly does not comply with the Convention and must be set aside.
Prior
to the hearing of the matter before us, counsel for the appellant
filed a draft order, setting out conditions for N’s
return to the
Netherlands intended to ameliorate any potential hardships to which
N might be exposed on his return. Counsel
for both parties were
requested to comment on the draft order during the course of the
hearing, and also to consider certain
aspects of the order and
revert to this Court in writing. In formulating the conditions
which I intend to impose, I have carefully
considered the oral and
written submissions made by counsel in this regard. However, before
dealing with the return order, there
are two important aspects which
need to be addressed.
Delays
The
primary object of the Convention is to secure the
swift
return of children wrongfully removed to or retained in any
Contracting State, to restore the
status quo ante
the
wrongful removal or retention as expeditiously as possible so that
custody and similar issues in respect of the child can
be
adjudicated upon by the courts of the country from which the child
was removed. Not only is this explicitly stated in article
1 of the
Convention, but article 11 expressly enjoins the relevant
authorities to ‘act expeditiously in proceedings for the
return of
children’ and provides that –
‘
If
the judicial or administrative authority concerned has not reached a
decision within six weeks from the date of the commencement
of the
proceedings, the applicant or the Central Authority of the requested
State, on its own initiative or if asked by the Central
Authority of
the requesting State, shall have the right to request a statement of
the reasons for the delay.’
So
too, the
Guide
to Good Practice under the 1980 Convention
drafted by the Permanent Bureau of the Hague Conference on Private
International Law states as one of its ‘key operating principles’

that ‘expeditiousness is essential at all stages of the Convention
process including appeals’.
22
At the fifth meeting of the Special Commission to review the
operation of the Convention, held in late 2006, the Commission

reaffirmed the following important recommendations made by its 2001
meeting:
‘
3.3
The Special Commission underscores the obligation (Article 11) of
Contracting States to process return applications expeditiously,
and
that this obligation extends also to appeal procedures.
3.4
The Special Commission calls upon trial and appellate courts to set
and adhere to timetables that ensure the speedy determination
of
return applications.
3.5
The Special Commission calls for firm management by judges, both at
trial and appellate levels, of the progress of return proceedings.’
23
The
South African government was represented at this fifth meeting of the
Special Commission.
Unfortunately,
the proceedings in the present case were anything but expeditious.
Some three and a half years have elapsed from
the time of N’s
wrongful retention in South Africa in December 2003. N is now five
years old and has spent most of his young
life in this country. In
a recent decision of the House of Lords in
Re
D (A child)
,
24
Baroness Hale of Richmond expressed the view that the object of the
Convention ‘is negated in a case such as this where the
return
application is not determined by the requested State until the child
has been here [in the United Kingdom] for more than
three years.’
25
She pointed out, however, that –
‘
Article
12 of the Convention caters for delay in making the application for
return. If an application is launched more than 12
months after the
wrongful removal or retention, the child is nevertheless to be
returned “unless it demonstrated that the child
is now settled in
its new environment”. The choice of the date of application rather
than the date of decision is deliberate:
the left behind parent
should not suffer for the failings of the competent authorities . . .
It is not possible, therefore, to
argue that cases such as this fall
outside the Convention altogether.’
26
In
the
Re D
case,
the return application ultimately failed before the House of Lords on
the ground that the father did not have ‘rights of
custody’ for
the purpose of the Hague Convention when the minor child was removed
from the country in question (Romania), that
the removal was
accordingly not wrongful, and that no obligation to return the child
arose under article 12 of the Convention.
Although the question of
delay thus did not arise for decision in that case, Baroness Hale
pointed out that the passage of time
had contributed to a situation
in which the child concerned was adamantly opposed to returning to
Romania,
27
and the child had reached an age and state of maturity where it could
not be taken for granted that it was inappropriate for him
to be
given the opportunity of being heard.
28
She thus expressed the view that, in that context:
‘
.
. .a delay of this magnitude in securing the return of the child must
be one of the factors in deciding whether his summary return,
without
any investigation of the facts, will place him in a situation which
he should not be expected to have to tolerate.’
29
In
the present case, the retention of N in South Africa was wrongful.
Moreover, unlike in
Re
D
,
there was no evidence before us that the delay has been such that
the return of N to the Netherlands would indeed place him
in an
intolerable situation.
30
It is also significant that the present circumstances were caused
by the mother’s unlawful conduct in retaining the child
in South
Africa and systemic delays which cannot be attributed to the father.
A court in the Netherlands is anxiously awaiting
the outcome of
these proceedings and, in my view, justice will brook no further
delay.
We
were nevertheless so troubled by the inordinately lengthy delays in
finalising this matter that we asked the Chief Family Advocate
for
an explanation in this regard. It appears from the affidavit
deposed to by the Chief Family Advocate in response to our
request
that one of the main reasons for the lapse of more than two months
between her receipt of the request for N’s return
from the Dutch
Central Authority on 5 April 2003 to the institution of the return
application on 24 June was the resignation
of Mr van Zyl from the
Office of the Family Advocate, necessitating the delegation of Ms
Grobler to deal with the matter in his
stead. This does not,
however, explain the subsequent delays in the course of the
proceedings in both the Pretoria High Court
and in this Court.
This
Court must bear some of the blame. The record of the proceedings
was lodged with the Registrar on 23 August 2006. In the
practice
note filed on behalf of the appellant on 23 October 2006, it was
pointed out that the matter, being in terms of the
Convention, was
‘inherently of an urgent nature’. However, it was only some
time after the filing of the respondent’s
practice note on 24
November 2006 that the urgency of the matter came to the attention
of the President of the Court. By then
it was too late to set the
matter down for hearing for the first term of 2007 and it was
therefore only set down for hearing
in May. In a letter dated 14
February 2007 addressed to the Registrar of this Court, the State
Attorney pointed out that its
client, the appellant, ‘was under
tremendous pressure from the Dutch Central Authority regarding
finalisation of this matter
given its international status’ and
that ‘all Hague Convention applications are urgent in their
nature’. Had this letter
accompanied the appellant’s practice
note, there is no doubt that the matter would have been set down for
hearing at an earlier
stage. Procedures have now been put in place
to ensure that matters such as this one, which are described as
‘urgent’ in
a practice note filed with the Registrar of this
Court, are immediately brought to the attention of the President of
the Court.
Both
the Chief Family Advocate, in her capacity as the South African
Central Authority, and the South African courts are obliged
by the
Convention to act expeditiously in return proceedings. There has
been a dismal failure in this matter to give effect
to our
Convention obligations. This is no doubt due in considerable
measure to the fact that the resources (including training
and
proper procedures) currently available to the Chief Family Advocate
and the various regional offices of the Family Advocate
are
insufficient to enable the former effectively to carry out the
functions of and obligations imposed on Central Authorities
under
the Convention.
31
The training of South African judicial officers in the principles
and procedures underpinning the Convention also appears to
be less
than that required by South Africa’s obligations under the
Convention. It is to be hoped that these shortcomings will
receive
the prompt and proper attention of the relevant authorities. To
that end, I intend to direct that a copy of this judgment
be sent to
the Minister for Justice and Constitutional Development, as well as
her Director-General.
Non-joinder of the
father
As
indicated above, the father was not joined as a co-applicant in the
return application and is, therefore, not a party to the
present
proceedings. This means that the conditions which I intend to
impose to govern N’s return to the Netherlands, insofar
as they
impose obligations on the father, will not be binding upon him
unless he consents in some way to be bound by our judgment

notwithstanding the fact that he has not been cited as a party.
This problem was raised with counsel for the appellant during
the
hearing before us. Subsequent to the hearing (and pursuant to our
request), an affidavit was deposed to by the father on
23 May 2007
in the Netherlands stating that a copy of the draft order prepared
by counsel for the appellant has been forwarded
to him by electronic
mail; that he is aware that if an order is made in terms of the
draft order or any variation thereof, he
will be subject to certain
obligations; and that he –
‘
.
. .being fully aware of the obligations that may be placed on me by
an order of the SCA, I hereby confirm that I am fully aware
of the
issues placed before the SCA for its consideration and I freely,
voluntarily and unequivocally consent to and submit myself
to the
jurisdiction of the SCA in this appeal with full and complete
acceptance and adherence to any order that may be issued in
this
appeal by the SCA.’
A
copy of this affidavit was filed with the Registrar of this Court.
In order to ensure that the father is indeed bound by the
order which
I intend to make, this order will only be issued once the original of
such affidavit is filed with the Registrar.
The
appellant does not seek an order for costs and, in my view, the most
equitable outcome is that each party should pay its or
her own costs,
both in this Court and in the court below.
Order
The
following order is made:
A. The appeal is upheld.
B. The order of Van
Oosten J in the Pretoria High Court dated 14 June 2005 is set aside
and replaced with the following order:
‘1. It is ordered and
directed that the minor child, N.J.P.J. v H.H. (N) be returned
forthwith, but subject to the terms of this
order, to the
jurisdiction of the Central Authority for the Netherlands.
2. In the event of B.K.v
H.H. (the mother) notifying Mr Chris Maree of the Office of the
Family Advocate, Pretoria (the Family
Advocate) within one week of
the date of issue of this order that she intends to accompany N on
his return to the Netherlands,
the provisions of paragraph 3 shall
apply.
3. Nicolas Christian
Bernard Paul v H.H. (the father) shall within one month of the date
of issue of this order, institute proceedings
and pursue them with
due diligence to obtain an order of the appropriate judicial
authority in the Netherlands in the following
terms:
3.1 The mother is
awarded interim custody of N pending the final adjudication and
determination by the appropriate court in the
Netherlands of the
issues of custody and care of and access to N, which adjudication and
determination shall be requested forthwith
by the father.
3.2 Until otherwise
ordered by the appropriate court in the Netherlands:
3.2.1 The mother and N
shall reside at [address], Zandvoort, the Netherlands, until the
matter of the custody and care of and
access to N has been resolved
in the Netherlands. The father shall move out from the said address
during such period, but shall
continue to pay the full rent and other
expenses in respect of the lease of such accommodation.
3.2.2 The father is
ordered to pay the mother maintenance for herself and N from the date
of N’s arrival in Zandvoort at the
rate of 350 euros per week. The
first pro rata payment shall be made to the mother on the day upon
which she and N arrive in Zandvoort
and thereafter weekly in advance
on the first Monday of every week.
3.2.3 The father is
ordered to pay any medical and dental expenses reasonably incurred by
the mother in respect of herself and
N.
3.2.4 The father is
ordered to provide a roadworthy motor vehicle equipped with a child
seat for N, for the use of the mother
and N from the date of their
arrival in Zandvoort, and to pay all reasonable expenses in respect
of the running of the motor vehicle,
including petrol and oil.
3.2.5 Pending such
further determination as to access as may be made by the appropriate
court in the Netherlands, the father shall
have reasonable access to
N, the details of such access to be arranged between the parents
under the supervision of the Central
Authority for the Netherlands.
3.2.6 The father and
the mother are ordered to co-operate fully with the Family Advocate,
the Central Authority for the Netherlands,
the relevant court or
courts in the Netherlands, and any professionals who are approved by
the Central Authority for the Netherlands
to conduct any assessment
to determine what future custody, care and access arrangements will
be in the best interests of N.
3.2.7 The father is
ordered to purchase and pay for economy class air tickets, and if
necessary, pay for rail and other travel,
for the mother and N to
travel by the most direct route from Pretoria, South Africa, to
Zandvoort.
4. In the event of the
mother giving the notice to the Family Advocate referred to in
paragraph 2, the order for the return of
N shall be stayed until the
appropriate court in the Netherlands has made the order referred to
in paragraph 3 and, upon the Family
Advocate being satisfied that
such an order has been made, he shall notify the mother accordingly
and ensure that the terms of
paragraph 1 are complied with.
5. In the event of the
mother failing to notify the Family Advocate of her willingness to
accompany N on his return to the Netherlands,
it is to be accepted
that the mother is not prepared to accompany N, in which event the
Family Advocate is authorised to make such
arrangements as may be
necessary to ensure that N is safely returned to the custody of the
Central Authority for the Netherlands
and to take such steps as are
necessary to ensure that such arrangements are complied with.
6. Pending the return of
N to the Netherlands, as provided for in this order, the mother shall
not remove N on a permanent basis
from the Province of Gauteng and
until then she shall keep the Family Advocate informed of her
physical address and contact telephone
numbers.
7. Pending the return of
N to the Netherlands, the father is to have reasonable access to N,
the details of which access shall
be arranged between the parents
under the supervision of the Family Advocate.
8. There is no order as
to costs.’
C. The Family Advocate is
directed to seek the assistance of the Central Authority for the
Netherlands in order to ensure that the
terms of this order are
complied with as soon as possible.
D. In the event of the
mother notifying the Family Advocate, in terms of paragraph B.2
above, that she is willing to accompany N
to the Netherlands, the
Family Advocate shall forthwith give notice thereof to the Registrar
of the Pretoria High Court, the Central
Authority for the Netherlands
and to the father.
E. In the event of the
appropriate court in the Netherlands failing or refusing to make the
order referred to in paragraph B.3 above,
the Family Advocate and/or
the father is given leave to approach this Court for a variation of
this order.
F. In respect of this
appeal there is no order as to costs.
G. This order shall not
be issued until the original of the affidavit deposed to by the
father on 23 May 2007 has been filed with
the Registrar of this
Court.
H. A copy of this order
once issued shall forthwith be transmitted by the Family Advocate to
the Central Authority for the Netherlands
and to the father
electronically or by telefacsimile.
I. The Registrar is
directed to send copies of this judgment to the Minister for Justice
and Constitutional Development and to her
Director-General.
B
J VAN HEERDEN
JUDGE OF APPEAL
Concur:
Farlam JA
Heher JA
Maya JA
Hancke AJA
1
Which came into operation on 1 October 1997. Section 2 of the Act
provides that the Convention (the full text of which is annexed
to
the Act as a Schedule) applies in South Africa. Thus, in terms of s
231(4) of the Constitution of the Republic of South Africa,
1996,
the Convention has the force of law in this country.
2
The removal (or retention) of a child under the age of 16 years is
considered to be ‘wrongful’ for the purposes of the Convention

where it is in breach of custody rights attributed to a person, an
institution or any other body under the law of the state in
which
the child in question was habitually resident immediately prior to
the removal or retention, provided that those custody
rights were
actually being exercised at the time of the removal or retention, or
would have been so exercised but for the removal
or retention:
articles 3 and 4 of the Convention (see further
Sonderup v
Tondelli
& another
2001 (1) SA 1171
(CC) para 10,
Pennello v Pennello
2004 (3) SA 117
(SCA) para 4, esp n 4).
3
See article 14 of the Convention, in
terms of which the judicial or administrative authorities of the
requested State may, ‘in
ascertaining whether there has been a
wrongful removal or retention within the meaning of Article 3 . . .
take notice directly
of the law of, and of judicial and
administrative decisions, formally recognised or not in the State of
habitual residence of
the child, without recourse to the specific
procedures for the proof of that law or for the recognition of
foreign decisions
which would otherwise by applicable.’
4
Article 6 of the Convention requires every Contracting State to
designate a Central Authority to discharge numerous duties imposed

on Central Authorities by the Convention. In terms of s 3 of the
Act, the Chief Family Advocate is designated as the Central

Authority for the Republic of South Africa.
5
Article 9 provides that ‘[i]f the Central Authority which receives
an application referred to in Article 8 has reason to believe
that
the child is in another Contracting State, it shall directly and
without delay transmit the application to the Central Authority
of
that Contracting State and inform the requesting Central Authority
or the applicant, as the case may be.’
6
The Chief Family Advocate, as the Central Authority for South
Africa, may delegate or assign any of her powers or duties under
the
Convention to any Family Advocate appointed in terms of the
Mediation in Certain Divorce Matters Act 24 of 1987: see s 4
of the
Act, read with regulation 3 of the regulations promulgated under s 5
of the Act in Government Notice R1282 of Government
Gazette
No.18322 dated 1 October 1997.
7
In terms of article 16 of the
Convention, ‘after receiving notice of a wrongful removal or
retention of a child in the sense
of Article 3, the judicial or
administrative authorities of the Contracting State to which the
child has been removed or in which
it has been retained shall not
decide on the merits of rights of custody until it has been
determined that the child is not to
be returned under this
Convention or unless an application under this Convention is not
lodged within a reasonable time following
receipt of the notice.’
8
See eg
Sonderup v Tondelli & another
above n 2 para 3;
Chief Family Advocate & another v G
2003 (2) SA 599
(W)
at 604I-605B;
Senior Family Advocate, Cape Town, & another v
Houtman
2004 (6) SA 275
(C) para 1. Article 8 of the Convention
provides that any person, institution or other body who claims that
a child has been
removed ‘in breach of custody rights’ may apply
either to the Central Authority of the child’s habitual residence
or to
the Central Authority of any other Contracting State for
assistance in securing the return of the child. In terms of art
7(f),
one of the obligations imposed upon Central Authorities is to
‘initiate or facilitate the institution of judicial or
administrative
proceedings with a view to obtaining the return of
the child’.
9
See
Smith
v Smith
2001 (3) SA
845
(SCA) para 6 and
Pennello
above n 2 para 25.
10
See n 2 above.
11
See para [12] above.
12
On the ‘defence’ referred to in
article 13(b), see
Pennello
above n 2 paras 29-35 and
the other authorities there cited. The authority hearing the return
application may also refuse to
order the return of the child if it
finds that the child objects to being returned, and has attained an
age and degree of maturity
at which it is appropriate to take his or
her views into account (article 13).
13
Article 20.
14
See in this regard
Pennello
above
n 2 paras 17-18 and the other authorities there cited.
15
[1997] 2 FLR 212
(FD) at 217.
16
See further
Re
P (Abduction: Consent)
[2004]
2 FLR 1057
(CA) para 33.
17
[1996] 1 FLR 414
(FD) at 419.
18
See also
Re
A (Abduction: Habitual Residence: Consent)
[2006]
2 FLR 1
(FD) paras 70-88.
19
Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 634E-635C. This rule has been held to apply even
in cases where the onus of proving facts in dispute rests on the
respondent
and not only when the onus rests on the applicant:
Ngqumba v Staatspresident; Damons NO v Staatspresident; Jooste v
Staatspresident
1988 (4) SA 224
(A) at 259C-263E. It should be
mentioned that, in the judgment of this Court in
ABSA Bank Ltd
t/a Bankfin v Jordashe Auto CC
2003 (1) SA 401
(SCA) para 23,
there was an oblique indication that the correctness or otherwise of
the
Ngqumba
case might have to be reconsidered at some
stage.
20
Above n 2 para 40 and the other
authorities there cited.
21
Although not deposed to under oath,
this document is admissible in the present proceedings in
terms of article 30 of the Convention
which provides as follows: ‘Any application submitted to the
Central Authorities or directly
to the judicial or administrative
authorities of a Contracting State in accordance with the terms of
this Convention, together
with documents and any other information
appended thereto or provided by a Central Authority, shall be
admissible in the courts
or administrative authorities of the
Contracting States.’
22
See
Guide
to Good Practice
(2003)
Part II
Implementing
Measures
para 1.5.
23
See March [2007]
International
Family Law
38 at 41.
24
[2006] UKHL 51.
25
Para 48.
26
Para 49.
27
Paras 51-54.
28
Paras 57-62.
29
Para 53.
30
The minor in
Re
D
was more than seven and
a half years old when the proceedings were heard by the trial judge
and more than eight years old when
the appeal was heard by the House
of Lords. By contrast, N is only five years old and it has never
been suggested that he has
attained an age and degree of maturity at
which it would be appropriate for the court to take account of his
views.
31
See in this regard
Brown
v Abrahams
2004 (4) BCLR
349
(C) paras 49-56.