IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
(1) REPORTABLE:YES
(2) OF INTEREST TO OTHER JUDGES: YES
(3) REVISED: YES
24 January 2025
DATE SIGNATURE
In the ex parte application of:
EW
WG
VF
1. The application is dismissed . ORDER Case no: 094062/24
First Applicant
Second Applicant
Third Applicant
1
JUDGMENT
NEUKIRCHER J:
1] The first applicant (EW) is a 38-year old South African (SA) citizen who
presently lives and works in Zug, Switzerland. His husband, the second applicant
(WG), is a 27-year old Polish Citizen who also lives and works in Zug, Switzerland.1
They have been in a relationship since approximately 2019, and were married on 20
October 2023 in Switzerland.
2] This is an application to confirm the surrogacy motherhood agreement that they
have entered into with the third applicant (VF) in terms of s295 of the Children's Act
No 38 of 2005 (the Act).
3] Section 295(a) provides:
"A court may not confirm a surrogate motherhood agreement unless-
(a) the commissioning parent or parents are not able to give birth to a child and that
the condition is permanent and irreversible. "
41 Given the content of paragraph 1 supra, there can be no doubt that EW and
WG fulfil this requirement.
1 The EW and WG are referred to in this judgment either by their initials or as "the applicants"
2
5] The hearing, in court but in camera2, took place over two dates in order to give
the applicants the opportunity to supplement the issues that were raised at the first
hearing. As a result, a supplementary affidavit was filed in an effort to cure those
issues. I will deal with each of the founding and supplementary affidavits in due course.
The application
6] Before I set out the facts of this application , something needs to be said about
the manner in which this application was put before this court. The initial application is
192 pages long. Of that, only 16 pages comprised the founding affidavit. To say that it
is cryptic is an understatement. Whilst lip seNice was paid to the essential allegations
a court requires to be made in applications of this nature, the actual essential and
relevant information was buried in the almost 170 pages of expert reports and other
documents . The supplementary affidavit and annexures ran to another 75 pages and
fared little better.
7] It is indeed an anomalous position that a judge deciding a surrogacy application
is in: on the one hand the provisions of s28(2) of the Constitution 3 and s2954 of the
Act require an investigation into the 'best interests' of the child, and on the other hand
the child has not yet been born. Thus, the question is: how do we measure this
constitutional imperative when we are unable to obseNe -or have actual evidence of
2 Given the provisions of s302 of the Act which state
"1) The identity of the parties to court proceedings with regard to a surrogate motherhood agreement may
not be published without the written consent of the parties concerned.
(2) No person may publish any facts that reveal the identity of a person born as a result of a surrogate
motherhood agreement ."
3 "A child's best interests are of paramou nt importance in every matter concerning the child."
• The relevant portions of which will be set out and dealt with later in this judgment
3
-bonding, discipline , parenting skills, a child's routine and who the primary caregiver
of the child actually is?
8] It is for this reason that simply paying lip service to the requirements of a
surrogacy application , and then relying on a judge to troll through hundreds of pages
of documents to find the essential supporting allegations and corroboration, is simply
not good enough. It is incumbent upon the applicant(s) to set out all the relevant
information in the founding and supporting affidavits themselves . After all, it is trite that
in motion proceedings the evidence upon which a party relies to found the case or
defence, must be contained in the affidavits themselves.5
9) The application of the 'best interests' principle is aided and determined inter a/ia
the report(s) of the expert(s): the psychometric evaluation, clinical observations and
client history play a vital role. It is also why the detail in the affidavits, especially of the
commissioning parents and corroborating information , must be interwoven in the
application and these reports so that the court has a full picture of the family ( or person)
who will be raising the child(ren) .
10) In Ex parte WH and Others6 the full court stated:
"[56] In terms of s28(2) of the Constitution a child's best interest are of paramount
importance in every matter concerning the child. This approach is echoed in s7 of the
Act. ..
5 Swissborough Diamond Mines (Pty) Ltd v Government of the Republic of South Africa and Others 1999
(2) SA 279 (T) at 3231/J -324F
6 2011 (6) SA 514 (GP)
4
[61] The best interest principle has not been given an exhaustive content, but the
standard should be flexible as individual circumstances will determine the best
interests of the child.
11] Although Ex parte WH was decided some 13 years ago, these sentiments are
as true and important today as they were then.
12] But this is only the start of the picture and the remaining pieces of the puzzle
must be completed with reference to the essential allegations required by s292 and
s295 of the Act. Furthermore, given that Chapter 19 resorts under the Children's Act,
the provisions of s? are important. This section sets out the factors a court must
consider in determining the best interests of the child. Not all of the provisions set out
in Section 7 are relevant in this application , though. In my view, those that are, are:
"7 (1) Whenever a provision of this Act requires the best interests of the child standard
to be applied, the following factors must be taken into consideration where relevant,
namely-
(a) the nature of the personal relationship between-
(i) the child and the parents, or any specific parent; and
(ii) the child and any other care-giver or person relevant in those
circumstances ;
(b) the attitude of the parents, or any specific parent, towards
(i) the child; and
(ii) the exercise of parental responsibilities and rights in respect of the child;
(c) the capacity of the parents, or any specific parent, or of any other care-giver
or person, to provide for the needs of the child, including emotional and
intellectual needs;
5
(d) the likely effect on the child of any change in the child's circumstances,
including the likely effect on the child of any separation from-
(i) both or either of the parents; or
(ii) any brother or sister or other child, or any other care-giver or person,
with whom the child has been living;
(e) ...
(f) the need for the child-
(i) to remain in the care of his or her parent, family and extended family;
and
(ii) to maintain a connection with his or her family, extended family, culture
or tradition;
(g) the child's-
(i) age, maturity and stage of development ;
(ii) gender;
(iii) background; and
(vi) and other relevant characteristics of the child;
(h) the child's physical and emotional security and his or her intellectual,
emotional , social and cultural development. .. "
13] It must be said that this list is not exhaustive, and may vary depending on the
facts of the specific application that serves before a particular court.
14] Much of the provisions of s7 of the Act are also echoed in s295 and more
especially in the following sections:
a) in s295(b)(ii) which states "the commissioning parents ... are in all respects
suitable persons to accept the parenthood of the child that is to be conceived" ;
6
b) in s295(d) which states " the agreement includes adequate provisions for
contact, care, upbringing and general welfare of the child that is to be born in a
stable home environment, including the child's position in the event of the death
of the commissioning parents or one of them, or their divorce or separation
before the birth of the child;"
c) in section 295(e), which states "in general, having regard to the personal
circumstances and family situations of all the parties concerned , but above all
the interests of the child that is to be born, the agreement should be confirmed."
The facts
15] This leads me to turn to the facts of the application before me.
16] EWwas born in SA and is a South African citizen. He is a chartered accountant
presently working for UBS, an international financial corporation. He lives in Zug,
Switzerland. He has been granted a temporary residency permit renewable yearly and
which, at present, is valid until the 11 January 2026. He states
"16.8.1 The Second Applicant and I live a stable life. We have lived in the same
community for many years. Our home is currently a 2 (two) bedroom flat,
which is large enough to adequately accommodate a child(ren}, albeit more
than one."
17] EW also states that he is "currently residing" at an address in Garsfontein ,
Pretoria "whilst in South Africa", that both his parents live in Pretoria and that he and
WG "frequently return home" to see his parents.
18] He then states
7
"5.7 I consider Pretoria, South Africa to be my home, as this was where I am from.
It is our intention to raise our children in South Africa, specifically in Kimberley ,
should we be successful with the surrogacy application , so that we may raise
our children close to my family. It is our intention to initially reside in Pretoria as
both of my parents are elderly, and we would like for them to experience their
grandchildren, whilst they can."
19] The applicants are "in the process of' looking to purchase a farm in Kimberley
but have not yet found a suitable property.
20] EW was headhunted by Credit Suisse7 during approximately May 2023 and he
has lived and worked in London and Hong Kong prior to his employment in
Switzerland. He states
58. "My employment overseas has purely been opportunistic (to receive the
financial benefit of working abroad whilst we do not have children) and has
often been at the request of my employers who have required me to transfer
and to work overseas ."
21] As stated, EW and WG were married, in Switzerland , on 20 October 2023. As
at date of the application , EW states that they have been in a committed relationship
for six years.
22] WG is a Polish citizen and is a senior associate at a large international
accounting firm. As with EW, he states that he is "currently residing" at the address in
Switzerland as well as at the address in Garsfontein , Pretoria.
7 Which was taken over by UBS
8
23] WG's confirmatory affidavit is 8 paragraphs long. Other than setting out his
profession and address, he gives no personal information whatsoever and this
includes any applications for a visa to live and work in SA. In fact, it is EW who states:
"5.4 It is the Second Applicant's intention to process a spousal visa for South Africa.
We have just not gotten around to making the application . It is our intention to
start the process now."
24] EW also states that he and WG are financially stable and have "the financial
means to support and care for the child(ren)."
25] The applicants nominated friends to be the guardian(s) of any child to be born.
They live in the United Kingdom (UK).
26) VF is the prospective surrogate mother. She is a single mother of two children
who are presently 14 and 10 years old. She states that she has had three successful
pregnancies , was in good health and carried her pregnancies successfully . This is her
second surrogacy : her first was in 2021 and in Septembe r 2021 she gave birth to
triplets. It appears that she reached out directly to the applicants ' attorney of record to
indicate her willingness to be a surrogate mother, and he then introduced the
applicants to her. Mr. Martin (the attorney of record) confirms that he does not act as
a surrogacy facilitator or agency and charges no fee; nor does he incur any expenses
for these services. He provides free of charge information to assist the parties in
meeting.
27] The annexures to the application provided the court with a treasure trove of
information left unanswered by the cryptic affidavits, which raised several more
9
questions as to the applicants ' domicile and as a result of certain other allegations ,
their habitual residence.
The annexures
28) The first issue is that the founding affidavit of EW and the confirmatory affidavit
of WG leave this court with the impression that they have a residence in Garsfontein ,
Pretoria. This, of course must then be seen in the context of the allegation that they
are looking to purchase a farm in Kimberley where they intend to raise their children -
albeit temporarily.
29] There is no confirmatory affidavit by either of EW's parents to confirm the
allegation of EW's SA residence/domicile. Instead, and seemingly to support EW's
allegations , a letter from the general manager of the retirement home in which EW's
parents live is attached to the application. This simply confirms the residential address
of EW's parents. A comparison of that address and the one given by the applicants
reveals that it is one and the same. Two issues arise from this: there is no confirmatory
affidavit from the general manager, nor does he confirm in the letter that this address
is, in fact, the applicants ' residential address; and, as stated, EW's own parents do not
confirm that he resides there. No explanation is provided for the absence of either. In
fact, other than that they are elderly and that EW's father lives in assisted living in the
retirement village, this court knows little else about them. Given the content of
paragraph 5.7 of EW's affidavit8, this absence is concerning as there is now no
corroboration for the allegations set out in EW's affidavit especially as he has not
resided in SA since 2015.
8 See paragraph 18 supra
10
30] The expert reports completed by Mandy Rodrigues, a clinical psychologist
based in Lanseria, raise even more questions as regards the issue of domicile and
residency . Under the heading "General History" in her report she states:
a) the applicants visit EW's parents "at least quarterly" and that they are
buying a home in South Africa9;
b) EW's decision to work overseas "was to gain experience and opportunity
internationally whilst still using South Africa as his home base";
c) that WG has visited SA "frequently " with EW;
d) that WG's parents are in their 60s, "and his mother does not work with his
father working for two-month periods, 6 times a year. They live an hour away
and are able to help out with the new baby";
e) EW and WG plan on staying in SA immediately after the birth of the child.
31] The further issue that arose was the fact that EW and WG had chosen
prospective guardians that live in the UK. The applicants state that they are both only
children. Both sets of parents are not in the summer of their lives, but there is no
suggestion anywhere of any other form of support system. This means that a child
born here and living here would suddenly be uprooted to foreign shores and strangers
(there being no suggestion of how a bond would be forged with the prospective
guardians at all), were something to happen to both applicants . Furthermore , given
that they voiced the intention to raise any child in SA, it begs the question as to why
guardians who do not live in this country, would be appointed.
9 This is in contrast with the allegation that they reside in Pretoria
11
32] This court was also not placed in the picture regarding the parties' actual
financial positions. Whilst I am told that they both work for large international financial
corporations and are financially able to provide for any child(ren) , the assumption
sought to be drawn is not fact based.
33] Then the following is reported by Rodrigues under the heading "Why the couple
want children". She states:
'The two have looked into adoption but understand this can be a tiresome process.
They are not Swiss citizens and adoption in Switzerland will not be possible. They are
also aware that as a same sex couple, the process of selection might take longer.
Surrogacy is perceived to be more certain than adoption and they can have one of
their genetic material involved."
The supplementary affidavit
34] As a result of the debate that took place at the first hearing, the applicants then
filed a supplementary affidavit in which they not only provide vastly more detail of their
own personal background and circumstances , but add crucial information required by
the court to determine whether the provisions of s292(1)(c) as well s295(d) and (e)
have been met.
35] It appears that EW was headhunted by Ernst & Young in London in 2015. He
was working at Nedbank (SA) at the time. From 2015 until 2022 he worked for various
companies in London and he states that, through necessity , he stayed in London
during the COVID pandemic which resulted in his obtaining his British citizenship . EW
is thus a dual citizen of the UK and SA. He states however
12
"It was not my intention to move to the UK in order to obtain British citizenship, it was
merely a consequence of me being there for the required period of time. The British
passport allows me visa-free international travel and, in my opinion, adds to my
marketability in career applications both in South Africa and abroad."
36] In 2022 he joined Deloitte, Hong Kong where he worked for approximately one
year before being headhunted by Credit Suisse. He moved to Switzerland in 2023.
When UBS purchased Credit Suisse he stayed on and has been employed at UBS for
approximately sixteen months. He states that his role is mainly related to UBS's
integration of Credit Suisse into its financial infrastructure which could take another
twelve to eighteen months after which
"my role may be reassessed to be in duplicate and, because of cost cutting, the bank
will make duplicate roles redundant . This will present an opportune time for me to
return to South Africa due to the possibility of redundancy pay."
37] During argument I was informed that given the amount he would receive if made
redundant by UBS, it is beneficial for EW to wait until his contract is actually terminated
rather than for him to resign to return to SA. However, were any child to be born, he
would be in SA "like a shot".
38] The applicants have not yet purchased the property in SA for various reasons
which include that:
a) they do not have certainty as to their future employment;
b) they do not find it a viable investment to have a non-income producing
property before obtaining employment in South Africa and state that "it is
very hard to find tenants who would accept a short-term lease, as I would like
13
to move to South Africa and into the house, when an opportunity for my return
occurs. I would, therefore, prefer to have certainty in the location of my and the
Second Applicant's future employers , as well as employment itself, before
buying a property";
c) EW has worked in very similar roles in insurance , banking and consulting
and will have the qualifications, credentials and experience to satisfy a
South African employer. However, with the South African economy
being smaller than those of Europe and Asia there are fewer senior
management opportunities available in SA than abroad. He then states
that any opportunities are also subject to BEE requirements "and often
when I am perusing the advertisement for possible job opportunities, it will state
that only BEE candidates will qualify for these senior positions. I hope that by
continuing my search for suitable opportunities and my South African
networking whilst building my credentials , that I will find suitable career
opportunity in the short to medium term";
d) they have looked at potential properties in the greater Kimberley area
but have yet to find one that is to their liking. They intend to purchase a
farm as it "makes economic sense and secondly, we like the idea of having a
farm and raising children who will have the exposure to this type of lifestyle."
But it is not their intention to permanently reside there as "that would not
make economic sense as the vast majority of entities that will offer us future
employment opportunity are based in Pretoria, Johannesburg , and in some
exceptions , Cape Town."
39] As to the intended guardians in the UK, the applicants have now nominated Mr
JHCI Kritzinger and his spouse, H H Hseih who live in Sandton, Johannesburg.
14
40] And then EW states:
"It is our intention to be permanently based in South Africa upon finding the right
employment opportunity . It will allow us to raise the children close to family, especially
with the Second Applicant's parents showing interest in moving to South Africa during
retirement. The interest arises from the fact that our family would be based in South
Africa, and South Africa having well established and affordable private elderly care
system."
41] To confirm this, WG states:
"My parents have also been here on a number of occasions and are planning to come
again during this December. They have indicated that they are open to the prospect of
moving to South Africa during their retirement, as I am an only child, and they would
want to be close to me and their grandchild ."
42] The applicants assert that the requirements of s292(1 )(c) and (e) are fulfilled as
it is EW who is domiciled in SA. This argument is made based on the following:
a) EW was born in Pretoria;
b) his parents live in a retirement village in Pretoria and he purchased the
property for them;
c) he and WG stay there when they visit SA which EW states he has done
"at least 37 times of varying lengths" since he moved overseas in 2015;
d) he maintains his SAICA 10 membership ;
e) SA is his home "and always will be";
10 South African Institute of Chartered Accountants
15
f) he did not give up his SA citizenship when he acquired his British
citizenship and has a Certificate of Exemption in terms of s6(2) of the
South African Citizenship Act 88 of 1995;
g) they rent their apartment in Switzerland and have no other property
overseas because they do not have the intention to stay there;
h) they seek property in Kimberley where their friend, DR Griesel, has two
farms;
i) it is their intention to be permanently based in SA "upon finding the right
employment opportunity " after EW's present role at UBS may possibly be
made redundant in another twelve to eighteen months because of the
company 's cost cutting, which carries with it the possibility of a
redundancy pay.
The domicile requirement
43] The Domicile Act 3 of 1992 came into operation on the 1st of August 1992.
There are several provisions which have a bearing on this matter:
a) the first is s1:
"(1) Every person who is of or over the age of 18 years, ... shall be competent
to acquire a domicile of choice, regardless of such person sex or marital
status.
(2) A domicile of choice shall be acquired by a person when he is lawfully
present at a particular place and has the intention to settle there for an
indefinite.";
b) the second is s2(1):
16
"(1) a person not capable of acquiring a aomicile of choice as contemplated in
section 111 shall be domiciled at the place with which he is most closely
connected ."
c) the third is s3:
"(1) no person shall lose his domicile until he has acquired another domicile,
either by choice or by operation of law.
(2) Notwithstanding any law or the common law, no person's domicile of
origin shall revive except within the meaning of section one or two."
44] According to s5 of the Domicile Act, the acquisition or loss of a person's
domicile shall be determined by a court on a balance of probabilities .
45] Thus, succinctly stated: any person who reaches the age of majority will retain
the domicile they have at the time12 which will be the place with which they are the
most closely are connected at the time 13. After this, a person may acquire a domicile
of choice 14.
46] A domicile of choice is acquired by a person who, having the necessary legal
capacity, in the exercise of his or her free will, is lawfully present at a particular place
with the intention of settling there for an indefinite period15.
47] In Eilon v Eilon16 the majority court stated:
11 A minor or a person who does not have the mental capacity to make a rational choice -s1 (1)
12 Section 3(1) of the Domicile Act
13 Section 2(1) of the Domicile Act
14 Section 1 (1) of the Domicile Act
15 Boberg's Law of Person and The Family; 2nd ed; pg 100-104
16 1965 (1) SA 703 (A) at 719H -720°; some citations excluded
17
"The onus of proving that a domicile of choice has been acquired rests on the party
who asserts it and this onus is discharged by a preponderance of probabilities. (See
Webber v Webber 1915 AD 239 and Ley v Ley·~ Executors and Others, 1951 (3) SA
186 (AD)).
lnthecaseofJohnsonvJohnson 1931 AD391 atp. 398, DEVILLIERS, C.J., indicated
what has to be proved in order to discharge this onus in the following terms:
'Both in the Roman law and in our own and the English law a person sui juris
is free to choose for himself a domicile of choice animo et facto by establishing
for himself in fact a residence in the territory in question, combined with animus
manendi in that territory.'
Appellant therefore had to prove the two requirements , namely residence in the Court's
area and an intention of settling there permanently. "
and
" ... the onus of proving a domicile of choice is discharged once physical presence is
proved and it is further proved that the de cujes had at the relevant time affixed and
deliberate intention to abandon his previous domicile, and to settle permanently in the
country the choice. A contemplation of any certain or foreseeab le future event on the
occurrence of which residence in that country would cease, excludes such an intention.
If he entertains any doubt as to whether he will remain or not, the intention to settle
permanent ly is likewise excluded ... "
48] In Chinatex Oriental Trading Co v Erskine17Chetty J stated:
"The South African Domicile Act 3 of 1992 provides that a person of 18 years or older
and with sound mind can acquire a domicile of choice when such person is lawfully
present at a particular place with the intention of settling there for an indefinite period
of time (s 1 ); that no person shall lose their domicile until he/she has acquired another
17 1998 (4) SA 1087 (C) at 1093H-1094C/D
18
domicile, either by choice or by operation of law (s 3) and insofar as proof is concerned
s 5 requires that the acquisition or loss of domicile is to be determined by a court on a
balance of probabilities. A domicile of choice can thus be acquired by sufficing two
elements:
(i) physical presence (an objective fact) :md
(ii) an intention to remain indefinitely (a subjective test).
A person's physical presence requires more than a visit or a sojourn to the country.
Accordingly the longer the person is settled at a particular place, the greater the
likelihood of a court regarding him as resident there for the purposes of domicile.
(Johnson v Johnson 1931 AD 391 at 411.) The second element, animus manendi,
does not require an intention to remain permanently. The person must display a state
of mind which is consistent with the intention of remaining indefinitely , which intention
need not be irrevocable in order to show that a domicile of choice has been acquired.
(Pollak (1933) 50 SALJ at 465; Ley v Ley's Executors and Others 1951 (3} SA 186
.<6}; Eilon v Eilon 1965 (1} SA 703 (A} at 721A.) Furthermore a continuing emotional
attachment to one's country of origin is insufficient to negative a domicile of choice.
(Eilon v Eilon (supra at 705A).)" (my emphasis)
49) In Levy v Levy's Executors18 it was stated:
"There are cases where a person leaves his country of origin intending never to return
to it and yet does not acquire a domicile of choice in another country, even although
he remains in such other country for some time. Bell v Kennedy, I Scotch & Divorce
Appeal Cases 307, is an example. The question in that case was: had Bell at the date
of the death of his wife acquired a domicile of choice in Scotland? Bell, whose domicile
of origin was in Jamaica, left that country for good in June, 1837, remained in London
for a short while and then went to Scotland where he remained until after the death of
18 Supra at 1 094C-F/G
19
his wife in September , 1838. The House of Lords held that the onus of proving that
Bell had acquired a domicile of choice in Scotland in or before September , 1838, had
not been discharged , the main ground being that his letters showed that he had not
yet made up his mind as to whether he would make his home in Scotland. In the
present case, however, the preponderance of probabilities seems to me to prove that
Ley did intend to settle in the Cape Colony."
50] It goes without saying that EW's domicile of origin is SA. The question is
whether it has remained his domicile or whether he has acquired a domicile of choice
elsewhere. In my view, although he uses the Pretoria property in an attempt to
establish an ostensible domicile in SA, it does not: on his own version it was purchased
for his parents; it was never his intention to live there and he also never asserts that it
was. In fact, in his own words, it is the applicants ' intention to reside in Pretoria but
they are in the process of looking to purchase a farm in Kimberley to raise a child, at
least temporarily . There is no indication on these papers that the property in
Garsfontein is the residence in which they will reside with the child and, it being a two
bedroomed property in a retirement village, there is no indication on these papers that
this would be in the interests of the child(ren) to do so -even if temporarily .
51] The fact remains that EW does not state whether, when he left SA in 2015 to
work in the UK, it was his intention to live there -if not permanently then at least for an
indeterminate period19. He then lived and worked in Hong Kong and now lives and
works in Switzerland which is where he and WG were married. He specifically states
in his founding affidavit that the apartment in Switzerland where he and WG live is
19 Which is exactly what transpired
20
large enough to adequately accommodate children, which is puzzling given the fact
that he states that he wants to raise the child(ren) close to family in SA.
52] EW asserts that the fact that he and WG only rent property in Switzerland
evinces an intention to be domiciled in SA -but in my view it does not: millions of
people the world over rent property in the country in which they are domiciled. The fact
is that I cannot find that EW has remained domiciled in SA as:
a) he does not state that irrespective of whether or not his job at UBS would
be made redundant in twelve to eighteen months, he would return to SA;
b) the timing of his return and settling his family in SA has always been
heavily dependent on when he and WG start a family;
c) as at date the application was launched, the applicants had yet to
commence the process of applying not only for WG's spousal visa, but
the search for employment in this country;
d) the originally intended guardians do not live in SA;
e) EW has failed to attach any confirmatory affidavits from any family in
SA20, and more importantly from his parents, who would be his support
structure.
53] In my view EW has acquired a domicile of choice in Switzerland: he lives and
works there and had an intention of remaining there indefinitely. On the facts before
me, the only reason the applicants voice an intention to live in South Africa is
a) because surrogacy is not recognised in Switzerland; and
b) because adoption is not available to them in Switzerland ; and
20 Which is relevant as he states that they want to raise their children close to family
21
c) surrogacy is recognized in SA.
54] I therefore find that, on a balance of probabilities , there is non-compliance with
the provisions of s292(1 )(c) of the Act.
Habitual residence
55] But I am also of the view that this court cannot confirm the agreement as it does
not have the jurisdiction to do so. In my view neither of the applicants are either
domiciled or habitually resident -at least at this stage -within this court's jurisdiction .
It is clear that they do not reside within this court's jurisdiction . As stated supra, the
Pretoria residence is not intended to be their actual residence and it is clear that it is
simply an address of convenience. In fact, in several paragraphs in the respective
affidavits, EW states that he and WG intend to live in Kimberly, are looking for a
property in that jurisdiction and intend to live there and (temporari ly) raise any children
there. This being so, this court has no jurisdiction to confirm the agreement in terms
of s292(1 )(d) of the Act.
General
56] In addition, I am not convinced on the papers before me that the application
should be granted:
a) there is too much uncertainty surrounding where any child(ren) will be
raised. It certainly will not be in Pretoria; it may be temporarily be in
Kimberley as to remain there permanently "would not make economic
sense; and future employment opportunities are based in Pretoria,
Johannesburg and, in some exceptions , Cape Town";
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b) there is also uncertainty surrounding their future employment in SA as
EW states that with the SA economy being smaller than those of Europe
and Asia, and any employment subject to BEE requirements , "only BEE
candidates will qualify for [these] senior positions. ";
c) there is no indication whether their present finances would sustain them
in SA were they not to secure employment immediately ;
d) WG has no spousal visa and as at date of the application had yet to
apply for one. Although it is stated in the supplementary affidavit that that
process has been commenced , there is dearth of information regarding
precisely what they have done and when.
57] This being so, and given all the uncertainties set out supra, I am also not
satisfied that the provisions of s296(d) and (e) have been met.
58] Of course, the outcome of this application is based solely on the facts placed
before me in the affidavits and annexures before me.
ORDER
The application is dismissed.
B NEUKIRCHER
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
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This judgment was prepared and authored by the judge whose name is reflected, and is
handed down electronically by circulation to the parties/their legal representatives by email
and by uploading it to the electronic file of this matter on Caselines. The date for hand-down
is deemed to be 24 January 2025.
For the applicant
Instructed by
Matter heard on
Judgment date Ms de Meyer
Andrew Martin & Ass. Inc
28 October 2024 and 6 November 2024
24 January 2025
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