SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AF RICA
(GAUTENG DIVIDION, JOHANNESBURG)
REPUBLIC OF SOUTH AFRICA
CASE NO : 019086/ 2023
In the matter between: -
T[…] R[…] S[…] T[…] APPLICANT
And
U[…] A[…] R[…] FIRST RESPONDENT
NATIONAL COMMISSIONER:
SOUTH AFRICAN SECOND RESPONDENT
POLICE SERVICE
MINISTER OF HOME AFFAIRS THIRD RESPONDENT
DIRECTOR- GENERAL: DEPARTMENT OF
HOME AFFAIRS FOURTH RESPONDENT
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
__________ _______________
DATE SIGNATURE
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Neutral Citation:
Delivered: By transmission to the parties via email and uploading onto Case Lines
the Judgment is deemed to be delivered.
JUDGMEN T
SENYATSI J
Introduction [1] This case involves the application for leave to permanently relocate two minor
children, D and B, from the Republic of South Africa to Israel by their mother, an
Israeli and an American citizen . She also requires, inter alia, that the first respondent
be ordered to pay maintenance in respect of both minor children.
[2] The first respondent, the biological father of the minor children and a South
African citizen ,opposes the application on the main ground that it is not in the
interests of the minor children to permanently relocate with the applicant to Israel .
The parties were never married to each other but lived together as partners. I had
the benefi t of listening to the oral expert testimonies on behalf of each parent from
the 25 November to 29 November 2024 to assist me to decide on whether it was in
the interest of the children to be relocated to Israel.
Background
[3] The basis for the permanent relocation of the minor children to Israel by TRS
is that her Spousal Visa, which she had obtained by virtue of her marriage which
ended in divorce, has expired. She obtained a fraudulent Visa which resulted in her
arrest and revocation and criminal conviction regarding the violation of the
Immigration Act. Consequently, she is in South Africa illegally and therefore liable to
be deported to Israel .It is for this reason that she brings an application to relocate
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with the two minor boys , who are still noticeably young, permanently with her to
Israel.
[4] The second respondent is cited because, Captain Alfred Robert Odendaal, a
member of the South African Police Services is in possession of the applicant’s
Israeli passport. The Mini ster of Home Affairs and the Director - General are cited
because the Minister is a Cabinet member responsible for the administration of Immigration Act, No: 13 of 2002 (“Immigration Act”) and furthermore because the
applicant prays that they be ordered to issue the passports for the two minor children for permanent relocation to Israel.
[5] The parents of the minor children separated during 2022 after B was born.
They both exercise the joint parental responsibilities and rights in terms of section 18 of the Children’s Act, No: 38 of 2005 (“the Children ‘s Act” ). The contacts rights are
exercised in terms of Madam Justice Francis -Subbiah’s order dated 23 August 2022
following a recommendation by court -appointed forensic clinical psychologist, Dr
Robyn Fasser . The order regulates how the co -parenting rights in respect of the
minor children are to be exercised. Dr Fasser recommended that the applicant be
granted 19 sleep- over days per month and that the first respondent be granted 12
sleep- over nights per month. This is the current arrangement that has been put into
place by the order referred to herein
[6] Although there was an initial agreement between the parties for the joint
appointment of Mr. L Carr(Mr Carr) as an expert to determine what is in the best interests of the minor children regarding the ir relocation, following a report written by
Mr. .Carr, which my brother, Wilson J , found was prejudicial to the applicant’s case,
he granted the postponement application so as to provide the applicant with the opportunity to respond thereto. Indeed, the applicant responded thereto and called
for further report from Mr. Townsend as an expert to poke holes in Mr. Carr’s report
and to show why I should not consider the report. This led to the experts, that is Mr.
Carr, Dr R. Fasser, DR. A. Townsend giving evidence to assist the court to decide
for or against the permanent relocation of the minor children to Israel.
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[7] In their joint minute following the meeting the experts held on 14 October
2024, they recorded that they agreed that they had all approached this matter from
distinct positions and have different mandates. Dr. Fasser was a court appointed to
conduct a care and contact evaluation, Mr. Carr was jointly appointed to conduct a
relocation assessment and Dr. Townsend was appointed by Mr. Liebenberg, on
behalf of Ms. Siman Tov, to provide a peer review of Mr. Carr’s relocation assessment report . Therefore, they agreed that they could not host a discussion on
points of agreement or disagreement in this matter as they all operated from different
data sets and perspectives. The joint minute was issued unsigned and not helpful to
me.
[8] The applicant states that in Jerusalem, Israel, she will be living with her father
Mr. I ST, until she can secure employment for herself , a right which she does not
enjoy in South Africa because of her illegal immigration status . She contends that
she is forced to leave the country and consequently , she would like to do so with the
minor chil dren. She states the first Respondent as the father of the minor children
will have the right of contact with them and can visit them in Israel. She states that
her father, who runs a business of supermarket in Jerusalem would be able to look
after her and the minor children until she can find herself employment. She does not
have a post graduate degree but rather a fashion design certificate which she obtained in South Africa when her immigration status was still valid. The immigration status became inv alid when she divorced her former husband which led to the
spousal visa expiring. Her father provided a sworn statement and confirmed that
although as an observant Jew he would have liked his grandsons to have been circumcised, he would still be happy to live with them without the circumcision. He
states that he lives in a large house which can accommodate his grandchildren. He
furthermore states that he did give financial support to the applicant around January 2023 in the sum of R14 000 assist her with her legal bills. He has never met his
grandchildren.
[9] The first respondent , R, contends that the minor children’s interests will be
best served if they are allowed to remain with him in South Africa. He is an attorney
who runs a practice that generates enough income to be able to continue maintaining his children with the contact and visitation to the children being given to
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the applicant. H is fiancé has agreed to help him look after the children and has filed
a sworn statement to that effect . He contends that he has a helper who works full
time for him at his home which is a free -standing house with enough rooms to
accommodate the children. He states that the children are used to his extended
family members and that they are quite used to the lifestyle in South Africa as
opposed to having to adjust to a new lifestyle where the applicant or her father will not be able to employ a helper to assist in meeting the needs of the children. He also
laments that Israel is a violent country involved in a war not just with Hammas but with most of its neighbours and that the constant fear of bombs or rockets being fired
at Jerusalem and other cities make it too risky for the children to be moved there.
The issues
[10] The issue for determination was whether it would be in the interest of the
minor children to either relocate permanently to Israel with the applicant or to remain in South Africa with the first respondent .
The legal principles
[11] Section 28(2) of the Constitution states that child’s best interests are of
paramount importance in every matter concerning the child. In keeping with the
Constitution, the Legislature passed the Children’s Act 38 of 2005 (“the Act”) and
section 7 of the Act deals with the best interests of the children. Section 7 states that whenever the interest s of children are involved, the Court should always consider the
factors mentioned in the section.
[12] The guiding principles applicable in relocation of minor children was stated by
Scott JA in Jackson v Jackson1 to be as follows :
“It is trite that in matters of this kind the interests of the children are the first
and paramount consideration. It is no doubt true that generally speaking
where, following a divorce, the custodian parent wishes to emigrate, a court
will not lightly refuse leave for the children to be taken out of the country if the
1 [2001] ZASCA 139; 2002 (2) SA 303 (SCA) para 2 of the majority judgment .
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decision of the custodian parent is shown to be bona fide and reasonable. But
this is not because of the so- called rights of the custodian parent; it is
because, in most cases, even if the access by the non- custodian parent would
be materially affected, it would not be in the best interests of the children that
the custodian parent be thwarted in his or her endeavour to emigrate in
pursuance of a decision reasonably and genuinely taken. Indeed, one can
well imagine that in many situations such a refusal would inevitably result in
bitterness and frustration which would adversely affect the children. But what
must be stressed is that each case must be decided on its own particular
facts. No two cases are precisely the same and while past decisions based on
other facts may provide useful guidelines, they do no more than that. By the
same token care should be taken not to elevate to rules of law the dicta of
judges made in the context of the peculiar facts and circumstances with which
they were concerned. In my judgment the present case is one of those in
which in all the circumstances leave to take the children out of the country
should have been refused. ”
[13] In deciding whether or not relocation will be in the child’s best interests the
court must carefully evaluate, weigh and balance a myriad of competing factors,2
including the child’s wishes in appropriate cases .3 It is an unfortunate reality of
relationship breakdown that the former spouses must go their separate ways and
reconstitute their lives in a manner that each chooses alone. Maintaining cordial
relations, remaining in the same geographical area and raising their children together
whilst rebuilding their lives will, in many cases , not be possible.4
2 See e. g. Van Rooyen v Van Rooyen 1999 (4) SA 435 (C).
3 In terms of one of the key tenets of the United Nations Convention on the Rights of the Child, the
courts must “assure to the child who is capable of forming his or her own views the right to express
those views freely in all matters affecting the child, the views of the child being given due weight in
accordance with the age and maturity of the child” (article 12). Thus, if the court is satisfied that the
child in question has the requisite intellectual and emotional maturity to make an informed and
intelligent judgment, then the court should give serious consideration to the child’s expressed
preference (see McCall v McCall 1994 (3) SA 201 (C) at 207H –J).
4 F v F[2006] 1 All SA 571 (SCA) para 10.
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[14] In F v F5 Maya AJA (as she then was) stated as follows:
“It is also important that courts be acutely sensitive to the possibility that the
differential treatment of custodian parents and their non- custodian
counterparts – who have no reciprocal legal obligation to maintain contact
with the child and may relocate at will6 – may, and often does, indirectly
constitute unfair gender discrimination. Despite the constitutional commitment
to equality, the division of parenting roles in South Africa remains largely
gender based.7 It is still predominantly women who care for children and that
reality appears to be reflected in many custody arrangements upon divorce.
The refusal of relocation applications therefore has a potentially
disproportionate impact on women, restricting their mobility and subverting
their interests and the personal choices that they make to those of
their children and former spouses. ”
[15] There is no doubt that the children are attached to both parents and for that
reason, the court should adopt a neutral approach to determine what is in the best
interests of the children. Consequently, it makes sense that in the context of
relocation disputes, a pro- relocation approach8 which is underscored by a
presumption in favour of the primary caregiver (and also not the mother as such),
cannot apply in the case of joint caregivers as in this case.
5 Footnote 4 above at para 12
6 Elsje Bonthuys “Clean Breaks: Custody, Access and Parents” Rights to Relocate’ (2000)
16 SAJHR 487 refers in this regard to “a systematic lack of reciprocity when dealing with the parents
of the child. While the custodian may be prevented from relocating by the interests of the children , the
non-custodian may relocate at will. While the custodian can be compelled to facilitate access to the
child, the non -custodian parent cannot be compelled to contact the child, whether such contact would
be beneficial to the child” (at 496).
7 See e.g. the remarks of several judges in the Constitutional Court case of President of the Republic
of South Africa v Hugo 1997 (4) SA 1 (CC) paras 37 –38 (per Goldstone J), [also reported at 1997 (6)
BCLR 708 (CC) – Ed] paras 80 and 83 (per Kriegler J), para 93 (per Mokgoro J) and paras 109– 110
and 113 (per O’Regan J).
8 Van Rooyen v Van Rooyen 1999 4 SA 435 (C) 439G -H; Godbeer v Godbeer 2000 3 SA 976 (W)
982C -983A; Jackson v Jackson 2002(2) SA 303(SCA) para 2 and 34 and F v F 2006 (3) SA 42(SCA)
para 13.
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[16] Where a neutral approach is adopted9, there is neither a presumption in
favour of or against relocation and a court applies a fresh inquiry into each case as it
arises. On a case -by-case discretionary basis, a court must review a proposed move
in terms of the children’s best welfare and interests.
[17] In Cunningham v Pretorius10, Murphy J held that in deciding relocation
disputes:
“What is required is that the court acquires an overall impression and brings a
fair mind to the facts set up by the parties. The relevant facts, opinions and
circumstances must be assessed in a balanced fashion and the court must
render a finding of mixed fact and opinion, in the final analysis a structured
value- judgment, about what it considers will be in the best interest of the
child.”
[18] In S v M11, Sachs J said the following in relation to the inquiry into the best
interest of the children:
“Section 28(2) of the Constitution provides that “[a] child’s best interests are of
paramount importance in every matter concerning the child.” South African
courts have long had experience in applying the “best interests” principle in
matters such as custody or maintenance.12 In our new constitutional order,
9 Domingo, W; " For the sake of the children": South African family relocation disputes” Potchefstroom
Electronic Law Journal PER vol. 14 n.2 Potchefstroom Jan. 2011
10 2008 JDR 1022 (T) par 9; see also UR v SB 2024 JDR 0238 (GJ) par [18].
11 (CCT 53/06) [2007] ZACC 18; 2008 (3) SA 232 (CC); 2007 (12) BCLR 1312 (CC); 2007 (2) SACR
539 (CC) para 12
12 The best interests of the child principle was articulated as long ago as 1948 by the Appellate
Division in Fletcher v Fletcher 1948 (1) SA 130 (A), and has since found application in numerous
judgments . Section 7(1) of the Children’s Act 38 of 2005, parts of which entered into force on 1 July
2007 and replaces the Child Care Act 74 of 1983 and Children’s Act 33 of 1960, sets out a lengthy list
of factors for courts to consider when determining a child’s best interests under the Act and under the
Constitution. Such factors include, but are not limited to, the nature of the personal relationship
between the child and the parents; the child’s physical and emotional security; the need for a child to
be brought up within a stable family; and the relevant characteristics of the child. See also Barrett and
Burman “Deciding the best interests of the child: an international perspective on custody decision -
making” (2001) 118 SALJ 556 at 560. Compare Bennett “The best interests of the child in an African
context” (1999) 20 Obiter 145 at 150- 1 stating that protecting the interests of the family was indirectly
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however, the scope of the best interest’s principle has been greatly
enlarged. ”13
[19] Sachs J14 continued as follow s in further articulating the best interests of the
children’s principles as recogni zed in section 28 of the Constitution:
“Yet this Court has recognised that it is precisely the contextual nature and
inherent flexibility of section 28 that constitutes the source of its strength.
Thus, in Fitzpatrick this Court held that the best interests principle has “never
been given exhaustive content ”, but that ‘[i]t is necessary that the standard
should be flexible as individual circumstances will determine which factors
secure the best interests of a particular child. ’,15 Furthermore “‘(t)he list of
factors competing for the core of best interests [of the child] is almost endless
and will depend on each particular factual situation’.” Viewed in this light,
indeterminacy of outcome is not a weakness. A truly principled child- centred
approach requires a close and individualised examination of the precise real -
life situation of the particular child involved. To apply a pre- determined
formula for the sake of certainty, irrespective of the circumstances, would in
fact be contrary to the best interests of the child concerned. ”
[20] Although the Constitutional Court was concerned with the sentencing of the
primary caregiver of the minor children, the principles on the approach of the best
interests of the minor children were properly articulated in that case. Accordingly,
each case will be determ ined according to its unique facts on matters of relocation
with joint parenting. The court concerns itself with the rights and interests of the
minor children and not those of the parents. The court as an upper guardian of the
minor children , exercises its discretion in deciding on what is in their best interests,
and the discretion must be done judicially considering the circumstances of each
case and the evidence before it.
protecting the interests of children, who like other individuals were not thought of as rights -bearers in
the customary context.
13 See for instance Brandt v S [2005] 2 All SA 1 (SCA) at paras 15 -6.
14 Para 24 of the case.
15Above n 15 at para 18 of the Constitutional Court judgment.
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The evidence
[21] Both parents exercise co -parenting of the minor children and the children are
equally attached to both. This is according to the reports by Dr. Fasser and Mr. Carr.
Both experts conclude that the separation from one of the parents by the minor
children will have a serious adjustment issue for the minor children. Dr Fasser is
neutral on the issue of relocation and despite the medical mental condition of the
applicant, she concludes that the applicant has good parental qualities. She comes
to the same conclusion regarding the first respondent who she says also has good
parental qualities.
[22] Mr. Carr takes a view that it will not be in the interest of the children to be
relocated to Israel. He maintains in his evidence that he is biased against the
children moving to Israel because of the war that is taking place in Israel. He states
that as an observant Jew whose own children live in Israel, it is going to be a serious
challenge for the minor children to be accepted by the applicant’s father even though
the father claims that he will accept them even without circumcision. He argued after
serious cross -examination that although he did not qual ify his report that he never
interviewed the extended family members of the applicant, he sees no reason why
his views will change with regards to what i s in the best interest of the minor children.
He maintained that although his own grand children live in Israel, it would be difficult
for the minor children who had never met any extended family member of the
applicant to adjust to the new environment with is besieged by the violence of the
war.
[23] Mr. Townsend criticises the report of Mr. Carr as biased and one sided and
that it fails to meet the standard of neutrality and that it should be ignored in its
entirety.
Reasons
[24] As alluded to above, the interests of the children are a paramount
consideration when determining whether to permit their relocation to Israel or not. It
is public knowledge that indeed the state of Israel participates in the fight against
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Hamas following the attack by Hamas on Israel citizens that claimed over one
thousand Israeli lives. In retaliation, it is also public knowledge that the retaliation by
Israel on Hamas has claimed well over 61,70016. Following the killings, there are
reported rocket attacks on Jerusalem and Tel Aviv Cities by Hamas and Iran which
force the Israel citizen to seek refuge in bomb shelters .
[25] The applicant is not employed although she now cl aims that she has a job
offer with a gross earning of Israeli NIS 9500. There is no clarity on what the living
expenses would be and how much will the children be provided for from her side.
The amount is clearly insufficient. She claims R40 000 maintenance per month for
both boys. It also not clear on how the grandfather would assist the children until she
can secure employment. There are also not details of the helper if she secures
employment. The information concerning the kinder garden is inadequate.
[26] She states that on arrival in Is rael she will stay with the children’s maternal
grandfather , who according to the applicant, was an absent father when she grew up
as he was divorced from the applicant’s mother. In fact, since the minor children
were born, their maternal grandfather has never met them although he claims by
ways of an affidavit that he is willing to take care of them . The town they will relocate
to once applicant secures employment, is called Mo di’in and is 60 km from Gaza
strip. This is where the father of the applicant’s supermarket is located. Her brother ,
A, commutes daily between Modi ’ín and Jerusalem and works from 11h00 to 21h00
which covers 72 km round trip. The applicant’s only brother also works at the
supermarket and works on weekends . It is unlikely that he will be able to provide any
support to the minor children because when returns from work, the boys will most
likely be asleep.
[27] The children’s grandfather also works in Modi’ín the same working hours as
their uncl e. It is not likely that they will be able to support the children. Their maternal
grandmother does not live with their grandfather. She is a hairdresser and lives in a
one-bed room apartment. She also works as a radio presenter to make ends meet. It
is not likely that she will be able to support the grandchildren. The applicant has
16 www.aljazeera. com.news
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three sisters G, Y and T who have 19 children between them. They also live in
Jerusalem. D has only met four sons of T when he was 20 months old. B has never
met any of the applicant’s siblings.
[28] Two of the applicant ’s sisters, G and T , live in Beith Shemesh, which is
approximately a 70km round trip with a car, or takes 1 hour and 10 minutes one way by train, which is more than two hours on a train for a round trip. These two sisters
have thirteen children between them . The mother’s oldest sister, G […], has nine
children. They will live far from each other and people have their own lives and their
own interests and need to look after their own children. I have not been informed by
the applicant as to how the needs of the minor children will be dealt with .
[29] The applicant states that the children will have access to good schools but
provides no information of what the costs of thos e schools will be and what benefit
will the minor children derive from the schools . No information has been provided
with the neighbourhood safety relating to the minor children. Consequently, with
insufficient information from the applicant, it is difficult for the court determine the
best interest of the minor children.
[30] When the children turn 18 years of age, they will be conscripted into the
Israeli arm as required by the law of Israel. Since the Israeli Declaration of
Independence in 1948, fixed- term military service has been compulsory in Israel .17
The draft laws of the Israel Defence Forces (IDF) only apply to Jews (males
and females ), Druze (males only), and Circassians (males only). I am not persuaded
that it will be in the best interest of the minor children to be relocated permanently to
Israel with the applicant. Doing so would potentially expose the minor children to
potential harm due to the ongoing conflict in Israel .
[31] The situation of the minor children if they are not allowed to relocate can be
summed as set out herein. They will live with their father, as the caregiver in his
home. His fiancé has indicated her willingness to assist the first respondent in raising
them up. They will have access to accommodation ably provided by the first
17 www.jpost.com
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respondent who is gainfully employed and run his own law practice. He is currently
maintaining them alone and they are exposed to a lifestyle according to the means of
the first respondent. The children know the first respondent’s extended family
members due to their visits with their father. Compared to Israel, South Africa has
not conscription laws and consequently, when they turn 18 years of age, they will
continue to live as civilians as opposed to being soldiers unlike in Israel.
[32] Counsel for the applicant has submitted that I should, when I determine the
relocation, consider who between the applicant and the respondent is able travel
based on affordability. He contended that the first respondent, due to his financial
means, can travel; has the flexibility to travel , can afford to travel and where contact
can be made. He submitted t hat the court should therefore grant leave to the minor
children to permanently relocate to Israel because their father would be able to travel
to exercise his contact rights as he has the flexi bility and can afford to travel Israel.
[33] Mr. Liebenberg for the applicant, spent a signifi cant amount of effort in the
heads arguments on why I should reject Mr. Carr’s evidence and report because of
his bias against the relocation of the minor children. I have considered his
submissions and based on the papers before me and even if I am with him in his
criticism of Mr. Carr, I have not been persuaded by the applicant that the best of the
children will be well served by the permanent relocation of the minor children to
Israel with the applicant.
[34] I am alive to the fact the refusal will have an adverse impact about separation
of the minor children from the applicant but that under the circumstances of this
case, the court must exercise its discretion to rise above the conflicting interests of
both parents and grant an order which will be guided by the best interests of the
children as required by section 28(2) of the Constit ution.
[35] Furthermore, the submissions made on behalf of the third and fourth respondents are noted and I will not deal with them.
Order
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[35] Having heard counsel for both parties the following order is made:
(a) The application is dismissed with costs.
(b) The second respondent is ordered to immediately hand over the Israeli
passport of the applicant back to her.
ML SENYATSI
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
DATE APPLICATION HEARD: 04 December 2024
DATE JUDGMENT HANDED DOWN: 14 April 2025
APPEARANCES
Counsel for the Applicant: Mr A Levin
Instructed by: Allan Levin and Associates
Counsel for the first Respondent: Adv F. Bezuidenhout
Instructed by: Steyns Attorneys
Counsel for the 3rd and 4
th Respondent s: Adv D Moodliyar
Instructed by: The State Attorney