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 AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case No: 2025 -027753
In the matter between
J[...] R[...] S[...] APPLICANT
AND
K[...] D[...] Z[...] -S[...] FIRST RESPONDENT
AD-HOC CENTRAL AUTHORITY FOR RSA SECOND RESPONDENT
Date of hearing: 06 March 2025
Date of Judgment: 10 March 2025 (to be delivered via email to the respective counsel)
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JUDGMENT
______________________________________________________________________
THULARE J
[1] This is an opposed urgent application for the immediate implementation of an order
of the Gauteng Local Division, Johannesburg issued on 10 September 2024 in terms of
the Hague Convention on International Child Abduction (the Convention) and directing
the first respondent to hand over the parties’ two minor children aged under 6 (5 years 8
months) and under 2 years (1 year 8 months) old . The applicant being the father and
first respondent being the mother are an estranged couple and biological parents of the
children. The children hold dual South African and German nationality and had now
expired German passports. The children were habitually resident in Germany.
[2] In early 2024 the mother refused to return to Germany with the children after a family
holiday in South Africa and unlawfully retained the children in Johannesburg. In March
2024 the father approached the German Central Authority which led to the second
respondent initiating proceedings in Johannesburg for the return of the children to
Germany. The father was the second applicant in that application. The mother opposed
the proceedings in Johannesburg. Before judgment in Johannesburg, the mother
relocated with the children to Cape Town. The court in Johannesburg ordered the
forthwith return of the children to Germany. Mahalelo J issued a written judgment in
which the following order was made:
“Order
1. The minor children, LS and MS are to be returned forthwith to the jurisdiction
of Germany, Munich in accordance with the provisions of art icle 12 of the
Hague Convention on the Civil Aspects of International Child Abduction.
2. The Respondent is to hand over all the travel documents of the minor children
to the first applicant forthwith.
3. The Sheriff of this Court is to forthwith search for and seize all the travel
documents of the minor children, wherever they may be found and hand
same over to the first applicant, in the event the respondent fails to comply
with prayer 2.
4. The respondent is to indicate to the applicants within 7 days of this ord er
whether she intends to travel with the minor children to Germany.
5. In the event the respondent chooses to travel with the minor children and
does not wish to stay with the second applicant and the children at their
apartment, the second applicant is orde red to pay for the accommodation and
all related costs for the respondent’s stay in close proximity to the apartment
in Germany.
6. In the event the respondent elects not to return to Germany with the minor
children, the second applicant, or a representative of the Germany Central
Authority, being a registered social worker, or an Advocate of the High Court,
duly appointed by the Family Advocate, shall be entitled to remove the minor
children from the borders of South Africa and travel to Germany with them.
7. The second applicant and the respondent shall agree on issues relating to the
education of the children for which the second applicant will make payment of
all costs inclusive of registration fees.
8. The second applicant shall secure, in consultation with the respondent and
with the involvement of Child Services or Institutions of Germany and pay for,
such objective and independent English speaking therapeutic support
services as may be required by the minor children after their return to
Germany, including, bu t not limited to, psychotherapy or such other
appropriate counselling services as the minor children may require.
9. Either party may approach the Family Courts in Germany inter alia:
(a) For a variation of this order, and/or
(b) Making this order a mirror order of c ourt in Munich.
10. No order as to costs is made.”
Applications for leave to appeal were dismissed by both the court in Johannesburg
(served on 13 September 2024 and dismissed on 7 October 2024) and the Supreme
Court of Appeal (the SCA) (served on 5 November 2 024 and dismissed on 19 February
2025).
[3] The mother only exercised her election, as envisaged in the court order , on 25
February 2025, after her petition to the SCA was refused. She indicated that she
wished to return to Germany with the children. It seems that she was initially under the
impression that time did not start running immediately after the High Court made an
order. She believed that she could only make her election after the appeal process was
exhausted. Before this court, the mother co nceded that her computation of time was
wrong and that although the period was at times interrupted by her lodging of
applications for leave to appeal, the period in which she was to ex ercise her election
lapsed in -between the refusal of her High Court application for leave to appeal on 7
October 2024 and her petitioning the SCA on 5 November 2024, and did not start
running after the SCA ’s dismissal of her petition on 19 February 2025. This concession
was correct.1
[4] In the case like the present, where the children who were habitually resident in
Germany were wrongfully retained in South Africa by their mother, the legal position is
that South Africa has an obligation to secure the prompt return of such children
wrongfully retained in South Africa, to Germany, and to ensure that rights of custody and
of access of the father under the law of Germany are effectively respected in South
1 Minister of Finance v Sakeliga 2022 (4) SA 401 (CC) at para 15 and 16.
Africa .2 It may be so, that when the issues come before court , the best interests of the
children point to the mother for purposes of their care as the appropriate parent. The
court to mak e such determination, under the circumstances, is not a South African
Court. It is the German courts.3
[5] The mother exhausted her appeal remedies and now accepted that the children
must be returned to Germany . She indicated to the applicant, even before the
application was lodged, that she also decided to exercise her election, though belatedly,
to accompany the children. In fairness to the mother, she was not the only one who
was under a wrong impression on t he time computation. It seems that even the Family
Advocate in Johannesburg was of the view that the mother was entitled to first exhaust
her appeal remedies before she could make an election . The Family Advocate accepted
the mother’s notice to elect to ac company the children within 4 days of the petition being
dismissed as following the Johannesburg High Court order. I accept that the mother
made an honest mistake. I have my doubts that such honest mistake must have the
consequence of treating her as someone who elected not to travel with the children to
Germany at all.
[6] The mother has always , even in Germany, been the primary caregiver of the
children . The children have not bee n in the father’s care for over a year. The father has
not indicated when he will be travelling back to Germany . The father applied for the
children’s passports on 3 March 2025 , and on the same day, the mother also made an
appointment for a visa, which was scheduled for the next day and was duly submitted
on 4 March . The visa is issued generally within 15 business days . Having regard to the
age of the children, The Family Advocate of Johannesburg has suggested , for all intents
and purposes , that the parents ’ legal representatives should work together to ensure
that the mother is supported to expedite her travel documents to enable her travel with
the children , and that only in the event of undue delay will her office intervene for the
father to solely take the children back to Germany. Considering that even a Social
2 Article 1, Convention on the Civil Aspects of International Child Abduction.
3 Sonderup v Tondelli and Another 2001 (1) SA 1171 (CC) para 30.
Worker and a Family Advocate , as well as representative of the German Central
Authority will all be strangers that may add to and not mitigate the anxiety and distress
of the minor children, the approach of the Family Advocate is sound. The presence of
the mother would help the psycho -social health of the children for the long travel. One
can only hope that the parties, in the interests of the children, consider the views of the
Family Advocate. It is easy for an adult to march into a child’s residence with a court
order in hand and a Sheriff in tow and walk out with children screaming , it is another to
seek to build a relationship with the children and as a parent, enjoy the confidence and
earn the smile and laughter of your kids looking forward to a long trip.
[7] For these reasons I make the following order:
(a) The matter is dealt with urgency.
(b) Paragraph 6 of the order of the High Court of South Africa (Gauteng Local
Division, Johannesburg) to be implemented forthwith.
(c) No cost order made.
_______________________________
DM THULARE
HIGH COURT OF SOUTH AFRICA