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
KWAZULU -NATAL LOCAL DIVISION, DURBAN

CASE N O: D376/2020 and D1062/2021

In the matter between:

W[…] E[…] S[….] PLAINTIFF

And

N[…] V[…] DEFENDANT

This judgment was handed electronically by transmission to the parties’ representatives by email. The
date and time for hand down is deemed to be on 06 June 2025 at 12:00
___________________________________________________________________
ORDER
___________________________________________________________________
The following order is granted:
1. The defendant is granted leave to remove the minor child, H[…] W[…] E[…] E[…]
S[…], a boy born on 5 December 2013, permanently from the Republic of South Africa,
in order to relocate to Portugal.
2. The plaintiff ’s consent for the minor child ’s permanent removal from the Republic

2

of South Africa and his relocati on to Portugal, as required by section 18(3) (c)(iii) of the
Children ’s Act 38 of 2005, is hereby dispensed with.
3. The minor child is entitled to depart from the Republic of South Africa and re -
enter the Republic of South Africa without the requirement of a parental consent letter
from the plaintiff, as provided for in regulation 6(12B) of the Immigration Regulations,
2014 to the Immigration Act 13 of 2002, subject to compliance with the remaining
provisions of regulation 6 to the said Act.
4. On relocation of the minor child to Portugal, the plaintiff shall be entitled to
exercise contact with the minor child, as follows:
4.1 Direct physical contact:
4.1.1 for a period of six weeks during the minor child ’s European
summer school holiday of each year in South A frica;
4.1.2 for a period of ten days during the minor child ’s European winter
school holiday of each year in South Africa ; and
4.1.3 at any stage during the year should the plaintiff travel to Portugal,
subject to the minor child ’s educational requireme nts and extra -curricular
activities.
4.2 Indirect contact in the form of telephone calls, emails, texts, Skype,
WhatsApp , and Face Time on a regular basis.
4.3 Any further or additional contact by agreement in writing between the
parties.
5. The costs of the minor child ’s flights and travel s between South Africa and
Portugal , which are to take place bi -annually, during the European winter school
holiday period and during mid -year, are to be paid by the defendant.
6. The plaintiff ’s obligations to contribute towards the minor child ’s maintenance
costs and expenses , as provided for in the order of the Maintenance Court on 21
August 2018 under case number 698/2018/201 , shall remain in place, save that the
plaintiff shall, on relocation of the minor child to Port ugal, pay school fees equivalent
to the fees charged by Al Falaah College, which amounts will be payable monthly in
advance into the defendant ’s nominated bank account.
7. On relocation of the minor child to Portugal, and within a period of no longer
than fo ur (4) months after arrival in that country, the defendant is directed to apply to
a court with competent jurisdiction or an administrative authority (where relevant) for
a mirror order to be granted on the same terms as provided for in this order.
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8. The co nsent of the plaintiff, as required by section 18(3) (c)(iv) of the Children ’s
Act 38 of 2005, for the submission of an application for a South African passport, and
the issuing thereof in respect of the minor child, who has South African identity number
1[….], be and is hereby dispensed with.
9. The requirement of the plaintiff ’s signature in the application for a South African
passport for the minor child, being the certificate of consent by both parents or
guardians of a minor, is dispensed with.
10. The Director General: Home Affairs is authorised and directed to accept the
application for a South African passport for the minor child at the instance of the
defendant, without the plaintiff being present when the application for a passport is
submitted , subject to compliance with the remaining provisions of the South African
Passports and Travel Documents Act 4 of 1994, and the regulations thereto, without
the signature in the certificate of consent of the plaintiff.
11. The defendant shall be entitled to retain the minor child ’s South African passport
issued in terms of this order, and in the event of the plaintiff requiring the passport in
order to travel overseas with the minor child, he is directed to return the minor child ’s
passport to the defendant a s soon as the minor child returns to South Africa.
12. The plaintiff is directed to sign all and any documents required for the issuing
of a visa for the minor child to enter into and reside in Portugal , such document s to be
signed by the plaintiff before a commissioner of oaths within a period of five ( 5) days
from the date of written request from the defendant.
13. In the event of the plaintiff failing to depose to the parental consent affidavit
required for a visa for the minor child, his consent is dispensed with and the applicant
is entitled to apply to the Portuguese authorities without the consent of the plaintiff.
14. The plaintiff is directed to pay the defendant ’s costs in the proceedings under
case number s D376/2020 and D1062/2021, including all reserved costs on 5
November 2020, 6 March 2020, 17 November 2022, 14 June 2023, and 5 August
2024 . Such costs shall be assessed on scale B .
15. The plaintiff is directed to pay all of the reasonable costs incurred by the
defendant for the employment of her expert witn ess, clinical psychologist Mr Terence
Dowdall, including his qualifying fees, the costs of his attendance at trial , and his
traveling and accommodation costs.
___________________________________________________________________
4

JUDGMENT
___________________________________________________________________
CHETTY J
[1] This matter requires the determination as to whether the custodial parent is
permitted to relocate with the minor child to a foreign jurisdiction , in this case Portugal ,
in circumstances where the non -custodial parent , being the father , refuses to grant his
consent to such relocation . The plaintiff and defendant were married to each other on
22 March 2013. During the course of the ir marriage, a boy, H […] W[…] E[…] E[…]
S[…] (‘H’), was born on 5 December 2013. He is now 11 years old and attends a school
in Durban.

[2] After the birth of H, the parties b egan to experience problems in their marriage .
The breakdown was, in part , attributable to differences in personalities and
worldview s, specifically the defendant (to whom I will refer as ‘N’) being a well-
educated , assertive woman of the Islamic faith, while her husband, the plaintiff (to
whom I will refer to as ‘W’), who is 21 years her senior, is more traditional and more
conservative in his outlook , and in particular his strict adherence to the Islamic faith .
These differing perspectives contributed to the ongoing conflict, particularly regarding
parenting choices and the upbringing o f H. During J uly 2017 , N vacated the
matrimonial home with H and moved in with her parents. The parties were
subsequently divorced in 2018 , pursuant to which an agreement was reached. In
terms of the agreement, H’s primary residence was to be at N’s parents ’ home , and W
would have generous contact with H. At the time of hearing the matter, W’s contact
includ ed overnight stays with H . His contact amounted to approximately eight nights
per month , which i ncluded weekend stays from Friday afternoon s until Sunday
afternoon s.

[3] Invariably, the separation of the parties resulted in a differing of opinions
regarding what would be in the best interests of their child, including the school he was
to attend. The strain of the Covid -19 pandemic further exacerbated tensions and
disrupted existing parenting arrangements, resulting in a flurry of litigation in 2020 , with
H being subject ed to various educational and psychological assessments. In January
5

2020 , W instituted proceedings for formalised contact with H . In response , N instituted
a counterclaim for an order permitting her to relocate with H to Turkey.

[4] In November 2020, Tsautse AJ granted an order declaring both parties to be
co-holders of full parental responsibilities of H. The order further provided that W shall
be entitled to exercise contact with H on alternate weekends , commencing from Friday
afternoon s to Monday morning s before school , as well as alternate Wednesdays from
after school until Thursday morning s before school . The July and December school
holidays , along with significant dates such as religious holidays, festivals , and H ’s
birthday, are to be shared equitably between the parties . Additionally, i n circumstances
where N would be away from Durban for business or an y other purpose , she is to
ensure that W is entitled to have access to H for visitation purposes .

[5] In February 2021, W instituted proceedings against N, in which he sought an
order that the primary residence of H be awarded to him, subject to N’s reasonable
rights of contact . In October 2022 , N del ivered a declaration under the earlier
proceedings instituted by W , in which she now sought an order entitling her to relocate
with H to Portugal , as opposed to her earlier intention to relocate to Turkey . Despite
contentions of irregular proceedings pertaining to the declaration , in terms of the
judicial case management of the matter , it was eventually agreed that the action under
case number D376/2020 would be consolidated and heard jointly with the action under
case number D1062/2021 . Accordingly, the issues relating to the primary residence of
H and the proposed relocation to Portugal would be determined simultaneously.

[6] The proceedings were initially set down in April 2024 but were adjourned a s W
needed to instruct new counsel. At the time of adjournment , the court directed the
Office of the Family Advocate to conduct an urgent enquiry and submit a report .
Additionally, the court issued an order prohibiting W from subjecting H to any further
tests and assessments by expert s, including by psychologists and social workers . W
was further directed to pay the costs in respect of the adjournment. In light of both the
primary residence and the relocation disputes being before the cour t, the matter could
only be heard in March 2025 , as the anticipated duration for the hearing was estimated
by the parties to be eight court days.

6

[7] At the commencement of the trial on 10 March 2025 , Mr Stokes SC, who
appeared on behalf of the W, informed the court that W no longer wished to pursue
his claim for primary residence and sought leave to withdraw his claim . N did not
oppose the withdrawal but reserved her rights to address the issue of costs to be
argued at the conclusion of the matter . I granted leave for W ’s claim to be withdrawn
under case number D1062/2021.

[8] It is significant to point out that while there is no strict onus on either par ent in
relocation disputes involving minor children , the court is nonetheless required to
conduct a thorough enquiry to determine whether the decision by the custodial parent
to relocate is both reasonable and bona fide , and ultimately whether it serves in the
best interests of the child. In undertaking this enquiry , the court functions as the upper
guardian of minors , and the discretion exercised in this context is broad and is not
confined to a narrow interpretation .1 In Jackson v Jackson ,2 the majority judgment
stress ed that ‘each case must be decided on its own particular facts ’ and that past
decisions serve merely as useful guidelines , rather than binding precedent . The court
in Jackson3 added further that because the interests of minor childre n are involved,
litigation in relocation disputes amounted to a ‘judicial investigation ’ into what is in the
best interests of the child .

[9] However, w here one of the parents elects not to testify, as in this case, the
court ’s ability to fully ascertain what is in the best interests of the child in a relocation
dispute is significantly constrained . The court is then left with the evidence of only one
parent, and unless the evidence presented is so unconvincing and fails to meet the
requirement s of reasonableness and bona fides, the relief sought ought to be granted.

[10] The material background facts in this matter are largely common cause . W
elected not to testify , nor to lead any evidence of the expert witnesses in respect of
whom various applications were brought to ensure that N made H available for th ese
specific assessments. In addition, at the pre -trial conference, W indicated that he

1 LW v DB 2020 (1) SA 169 (GJ) para 5.
2 Jackson v Jackson 2002 (2) SA 303 (SCA) at 318G -H para 2.
3 Ibid at 307G -H para 5. I point out that while this view is advanced in the minority judgment, it is not
suggested by the majority that this approach is incorrect.
7

would be relying on certain expert witness es’ testimonies . However, a t the trial, all of
this dissipated. This, despite a joint minute having been signed by the experts of both
parties , setting out their agreement on the relocation of H.4 In light of the position
adopted by W not to lead any evidence, none of the expert reports which were
prepared in substantiation of his case were relied upon nor admitted into evidence .
As stated earlier, this approach renders the enquiry all the more difficult. For the same
reason, the joint minute by two child therapists was excluded . The court was therefor
left with the evidence of N and her expert witness, Mr T Dowdall (‘Mr Dowdall ’). Their
evidence was disputed by W. The issue is thus whether N ’s evidence, as a whole,
satisfies the threshold for relocation.

[11] N testified in support of her claim to relocate to Portugal with H. She was
subjected to strenuous cross -examination regarding her reasons for wanting to
relocate, which eventually revealed that her primary motivation was a deep -seated
and desperate need to be with her elderly parents , who had decided to relocate to
Portugal. N’s evidence provided a useful backdrop against which her decision to
relocate can be assessed to determine whether her decision is reasonable and bona
fide. Much of her evidence is also contained in the report of Mr Dowdall, from which I
draw to the extent that his report was admitted into evidence and the factual
background of the parties as contained therein was not subjected to any challenge
from W.

[12] N married AV shortly after her matriculation in November 1999, at the age of
19. She gave birth to her daughter, A, in April 2001. Her marriage became strained
over time , in part because of the pressures of her religion and the more conservative
views held by her husband. N and AV d ivorced in 2005. It bears noting that d uring the
period of her first marriage , N attended the then University of Natal , where she studied
towards a Bachelor of Computer Science, graduating with distinction. She succeeded
in funding her tuition through scholarships . After graduat ing, N worked for Telkom , after
which she relocated to J ohannesburg. She later returned to university and , in 2004 ,

4 It is worth pointing out that at a pretrial conference held in February 2023 , attended by counsel and
the attorneys of the respective parties, the following was stated: ‘Subject to the delivery of a report by
Mr Clayton and the filling of a joint minute by Mr Claton and Mr Dowdall, the plaintiff agreed with his
recordal ’.
8

obtained a Masters in Electrical Engineering from the University of the Witwatersrand ,
majoring in telecommunicat ions. Subsequently, N joined MTN, who offered her an
opportunity for relocation to Dubai . However, N stated that she did not consider Dubai
to be in the best interests of her daughter , who required rem edial education . As a
result, s he opted to take a retrenchment package and return ed to her parents ’ travel
agency in Durban , where A attended a remedial school . Her daughter then chose to
return to Johannesburg to live with her father, and later f ollowed him to Dubai where
he lived . In respect of granting consent for her daughter to join her father in Dub ai, N
said it was a difficult decision for her but she allowed her to join her father. N described
her present relationship with A , who is now 24 years old and who works in Rome , as
‘fantastic ’.

[13] At the time of the trial, N was employed as an Operations Manager for a
software development company, as well as a consultant for Rain, an IT company , with
her work being primarily conducted online.

[14] The report of Mr Dowdall sketched a picture of W , who was born in Lebanon
into an extended family with very strong religious foundations , with his father being a
Muslim sheik. W worked and lived in Saudi Arabia and the Un ited States before settling
in South Africa in 1990 , where he established himself a s a successful businessman in
importing truck tyres and also became involved in humanitarian work , starting an
international Islamic relief organisation. In 2014 , W decided to withdraw from his
business life, which was left to his sons to manage . He concentrated his eff orts on his
religious and humanitarian work , becoming a director of the Muslim World League, on
whose behalf he travelled extensively in Africa and the Middle East. Mr Dowdall ’s
report also capture d the details of W’s four previous marriages , prior to his marriage
to N. He has eight children from th ose relationships. He met N during the period when
she was encountering problems in her marriage to AV. W wa s a very close friend of
N’s father, who enlisted W ’s assistance to offer N reli gious counselling. Despite their
21-year age difference, N and W married in March 2013 and H was born in December
2013. Mr Dowdall ’s report suggest ed that H ’s birth caused consternation between the
parties , as W felt that he had been ‘tricked ’, as he had not planned on having a chi ld
so soon. Notwithstanding this, W is recorded as being a good father and being present
throughout H ’s milestones.
9


[15] After the birth of H, N felt the need to return to the working environment , where
she interacted with other colleagues, which gave rise to some resentment on the part
of W. The shift in dynamics contributed to the deteriorat ion of their relationship,
resulting in their separation in 2017. Mr Dowdall ’s report record ed a statement from N
in which she explained that ‘[h]e needed a doormat and I didn ’t want to be one … he
wanted me to be financially dependent on him so he could control me …’. She
attributed her yearning to gain independence through her work and further studying
as reason s for them growing apart . Conversely, W perceived N as being ‘oppositional ,
defiant , and conniving ’, and found her temper difficult to manage , ultimately
considering her to be disrespectful to wards him.

[16] Following on the divorce of the parties in 2018, and in terms of an agreement,
W undertook to pay maintenance of R8 000 per month, with an annual escalation of
10 per cent . Additionally, W is also responsible for the payment of H ’s school fees and
medical aid. There is no dispute between the parties in this regard . N asserted that
should she be permitted to relocate to Portugal , such maintenance arrangements
should continue. According to N, based on her financial assessment of her needs and
that of H in Portugal, the present arrangements would (if continued by W) be sufficient
to cater for H ’s well-being . While separated, N travelled to Turkey in 2019 with A, her
parents , her sister , and her sister ’s family , who were based in Be lgium. H remained
behind as W refused permission for the child to travel abroad. While in Turke y, N
visited the Saba hattin Zaim Uni versi ty, where she was offered a scholarship to study
a Master ’s degree i n Islamic Finance and Economics . She subsequently began
preparing her application for relocation to Istanbul with H around September 2020.
This application was opposed by W.

[17] In hindsight, N testified (which is also consistent with the report of Mr Dowdall)
that the motivation behind the application to relocate to Turkey was self-centred , based
on improving her own academic qualifications and a more secure lifestyle. Additionally,
she was further motivated by the prospect s of being closer to her daughter , A, and her
sister, both of whom are based in Europe. However, t hose plans changed, and this
coincided with the closure of the family travel agency during the Covid -19 pandemic.
With the passage of time and the continuing litigation between the parties, N
10

abandoned her plans to relocate to Turkey, partly because she wa s able to pursue
online learning through institutions in Turkey. She later conceded that he r application
to relocate to Turkey was a retaliation to an application from W in which he sought
more contact time with H.

[18] During her testimony, N was cross -examined on what distinguished her current
application to relocate to Portugal from her previous application to relocate to Turkey .
It was put to her that her application to relocate to Portugal is equally self-centred and
in her best interests rather than that of H , and, furthermore, that it is a retaliation
against the request by W for primary care of H. She denied these contention s and
maintained that the move would be in her and H ’s best interests. In her application,
she provided a host of factors in support of their relocation . These include d the fact
that her extended family, including her parents , are relocating to live permanently in
Portugal, and that, if she is unable to relocate with H to Portugal, she will be isolated
in South Africa, primarily because she and H have lived with her parents since the time
of her separation from W in 201 7. She further contended that the area to which her
family intends to relocate , where they own property , is in a rur al setting , and that her
remote employment would not be impacted by the move , particularly as she is now in
possession of a D3 visa , issued by the Portuguese authorit ies, known as a ‘highly
qualified activity visa’. These visas are colloquially referred to as ‘scarce skills visa s’.
In terms of a joint statement by the parties pertaining to N’s visa status, it is agreed
that N has been issued with a residence permit , valid for two years , and which can be
renewed for subsequent periods of three years. She is further entitled to apply for a
dependen t’s visa for H from the Portuguese authorities, which entitles H to reside with
her in Portugal.

[19] As N is currently employed as a telecommunications engineer with the software
consulting company, TS Digital, it can therefore reasonably be assumed that N ’s
earning potential will not be adversely affected in any way and she is ‘financially
comfortable ’ to take care of her and H ’s needs in Portugal. N expects that , if H is
permitted to relocate t o Portugal, W ’s maintenance of the child will adequately cater
for their needs. Similarly, H will be placed on a medical plan to cater for any
eventualities that may arise. In addition, N expects to retain a property which she owns
in Durban , which she will let out for additional income .
11


[20] During the course of N ’s testimony ( which was also confirmed by the report of
Mr Dowdall), N believe d that she is now more mature and has carefully thought
through her decision to relocate to Portugal, in contrast to the almost hasty decision
to leave for Turkey. In August 2022 , N travelled to Portugal with her parents and
believed that it would be a suita ble environment for H to grow up, and for her to live
with the support of extended family. N intends to relocate to the Silver Coast of
Portugal, specifically to a town called Caldas da Rainha, a relatively short distance
from the capital, Lisbon. Her pres ent relocation application submitted in October 2022
state d that the reason she now wishe d to relocate is to keep intact her extended family
support system. The primary reason advanced is that H will be safer and ensured of a
more secure lifestyle with the benefits of being in a European country. She further
explained that her parents have purchased and developed a small holding in Caldas
da Rainha , where they have built three free -standing units, to be occupied by herself
(and H), her parents , and her sister, who will be relocating with her family to Portugal
from Belgium , where they currently live. The development is to be completed by mid -
2025. Additionally, t he family also owns a beach flat in an area called Nazare,
approximately 15km away f rom their housing estate. The plan is also for their younger
brother, M, who currently resides in Johannesburg, to relocate to be with the family in
Portugal .

[21] With regard to H’s education, while N was in Portugal, she explored several
educational opt ions, including an international school and a school offering a
Cambridge -based curriculum . Ultimately, she opted for a school in Caldas da Rainha,
which is English -medium and maintains relatively small classes. All students are
taught to speak Portuguese and the school has classes up to the local equivalent of
Grade 12 . If H relocates and is admitted to the school , he will have the opportunity to
complete his schooling at Colegio Rainha. This school is particularly well-suited to H ’s
needs, as it offers smaller classes that align with his learning requirements and
provides additional support for children with learning and educational challenges .
Furthermore, the school has access to English -speaking occupational therapist s and
educational psychologists , if necessary.

12

[22] In terms of the contact that H will have with W in the event of their relocation, N
propose d that she will reside nine months of the year in Portugal and will bring H to
South Africa for two months a year, during which time W will have unrestricted access
and contact with H.5 This arrangement, as I understood from Mr Humphrey , who
appeared for N, would not be encumbered by any existing restrictions on W ’s contact
with H , such as having to pick and drop him off at a particular time. The visits to Durban
are intended to be in two separate block vis its during the July and December school
holidays. In addition, as W frequently travels abroad , N has undertaken to allow him
unrestricted contact with H at any time throughout the year were he to visit Portugal .

[23] What emerged during the course of the testimony of N was that , despite
presenting herself as a fiercely independent women, she became emotional at the
prospect of being forced to choose between living with her elderly parents in Portugal
and potentially having to relinquish her time with H, if the court were to refuse her
application for relocation. She genuinely believe d that H ’s best interests can be taken
care of in Po rtugal, surrounded by the support of his grandparents and his mother ’s
extended family. While she also highlighted the advantages of relocating to a safer
environment for raising H, she conceded under cross -examination that crime is a
world -wide phenomenon and no destination is crime free. The point which she
attempted to make was that the crime rate in the area she wished to locate is
comparatively lower . I, however , accept Mr Stokes ’s submission that the level of crime
in our country has on many occasions been offered as an exaggerated reason for
relocation and it has become somewhat clichéd .

[24] N further testified regarding the strained and acrimonious relationship between
herself and W, which she believed has a detrimental impact on the well -being of H.
She emphasised that the conflict between the m remains constant, even where court
orders have been secured to ‘manage ’ the m anner of their engagement around H. To
this extent, the expert opinion of Mr Dowdall suggest ed that the ongoing tension
between the parties and the best interests of H would be better served by the
appointment of a parental co -ordinator, such as an attorney practi sing in the field of

5 I initially understood the proposal from N to be three months. After the hearing, N’s counsel clarified ,
at the court’s request, that the proposal for contact, as set out in the draft order tendered , was for six
weeks during the European summer vacation and 10 to 14 days during the winter vacation.
13

child and family law, who would be able to avoid the unnecessary resort ing to litigation
by the parties .

[25] The trial lasted seven days and saw W abandon his claim for primary residence ,
without explanation , on the first day and elect not to testify . N gave detailed evidence
on every aspect of her intended relocation . The critical issue remains whether N ’s
claim to relocate with H to be close r to her aging parents and to be supported by her
extended family in Portugal outweighs W’s right of access and personal contact with
his son. It is true that through modern technology, live streaming reduces the level of
personal anguish that a parent will endure when their young child has relocated to
another part of the country or the world . However, it is never a substitute for the touch
and feel of a human being, particularly one ’s child.

[26] N conceded under cross -examination that the standard of medical care,
schooling , and sports opportunities offered currently to H in South Africa are not
significantly any better than those which will be available to him in Portugal . It was
further put to N that while H would have the companionship of his cousin s in Portugal,
such a relocation would entail him abandoning the close friendship he has developed
with M , W’s grandson , and the son of W’s daughter , who resides in the same
apartment block as W. Mr Dowdall, both in his testimony and in his report, confirmed
the close bond shared between H and his cousin , M. The report also highlighted the
closeness between H and his father , W, as well as H ’s relationship with his uncles and
their children. However, after having administered the Bene -Anthony Family Relations
test on H, Mr Dowdall concluded that H assigned to N more positive traits than to his
father, W. This, it was suggested, would not be surprising seeing that N is H’s primary
attachment figure. Ultimately, Mr Dowdall testified and reported that H, on being
questioned, said that he was close to both his parents, without preferring one over the
other. Mr Dowdall in his report stated that N and W are ‘good enough parents ’, with N
attending to H’s emotional development and all practical details of his life. Mr Dowdall
described her at the parent m ore ‘attuned ’ to H’s needs. At the same time, it was noted
that even the slightest disagreement between the parents frequently escalated into
heated arguments, to which H is often exposed.

14

[27] The reports by the Office of the Family Advoc ate were also placed before the
court . However, none of those responsible for preparing these reports were available
to testify. In relation to N ’s application to relocate to Turkey with H, the Office of the
Family Advocate concluded in August 2020 that N’s reasons for doing so ‘were neither
compelling nor substantial and focus on her needs rather than the needs of the child ’.
It was further concluded that H has a broad support system in South Africa , whereas
the support system in Turkey appear ed to be limited. Moreover , given that H is a child
with spec ial needs, it was considered important that any relocation would disrupt his
established routine. In addition , it was found that he share d a close bond with his
father , who was described as an ‘involved parent ’, and H was accustomed to the
routine of frequent and quality contact with him . Consequently, it was recommended
that both parties remain co-holders of parental responsibilities in respect of H, who
was to reside primarily with the mother . The Family Advocate determined that it would
not be in the interests of H to relocate to Turkey.

[28] In relation to the application for relocation to Portugal, the Office of the Family
Advocate , in its report of July 2024 , again determined that it would not be in the best
interest s of H to relocate . The report found that the reasons advanced by N for the
relocation w ere neither compelling nor substantial, and there were no indications of an
overt or direct benefit for H. As to N ’s concerns of the recent spate of rioting in
KwaZulu -Natal and the impact that this could have on H, the Office of the Family
Advocate found this reasoning unconvincing , as there is an element of risk wherever
one may ch oose to relocate.

[29] The report further emphasised that H was at an age where he required the
involvement of both par ents and regular and frequent contact in order to establish
bonds with both parents . As with the earlier report, the Family Advocate concluded
that H shares a close bond with his father and is accustomed to the frequency of
contact with him. The report further conclude d that H would have to ‘adjust to
caregiving arrangements in Portugal, in a country which he has never visited before ’.
It was further concluded that H has ‘a broad support system , biological and
psychological ties that are remaining in South Africa ’. The support system in Portugal
appear ed to be ‘limited ’, and ‘removing the child from the current environment will not
serve in his best interest and will result in unnecessary disruption in H ’s current routine
15

and lifestyle ’. While I accept that any relocation will inevitably involve some level of
disruption to a child ’s accustomed routine , this alone is not the test whic h the Supreme
Court of Appeal has set out in order to determine whether the relocation is in the best
interests of the child. I will return to this test later on. The report further record ed ‘the
practical difficulty an expense of a child having contact with a parent ’. However, I find
this conclusion difficult to accept, particularly in light of N’s undertaking to ensure that
while H is in Portugal, he will have regular contact with W through video contact,
telephone communication , and extended access dur ing the July and December
holidays. There has been no thread of evidence placed before me to suggest that N
has shown any disregard for complying with court orders, and in the absence thereof,
her evidence must be accepted. For the reasons outlined above , I am not persuaded
by the reasoning as set out in the report of the Office of the Family Advocate .

[30] Although W elected not to testify, the basis of his opposition can be ascertained
from the pleadings. W contend ed that N has attempted to undermine the strong
emotional and psychological bond between him and H. W further accuse d N of
‘engin eer[ing] the relocation of the minor child ’ with her to foreign countries in order to
make it impossible for H to enjoy ‘ongoing and bene ficial contact ’ with him. He further
accused N of being emotional ly and psychological ly unstable, a claim he based solely
on N changing her decision to relocate , initially to Turkey and now to Portugal. Despite
these allegations , I could not find any sufficient basis to suggest that her application
to relocate was influenced by malicious intentions directed at ‘punishing ’ W and
depriving him of his right of contact with H.

[31] The position of W regarding N and H ’s proposed relocation is made clear in the
pleadings. He is opposed to N relocating with H to ‘either Turkey, Portugal or
otherwise ’. W maintained that, as long as he withholds his consent, N is obligated to
remain within the jurisdiction of the court , while continuing to fulfi l her role as primary
caregiver, a role from which W has now withdrawn any responsibility . W further
ascribe d N’s decision to relocate to the influence of her family , while placing H ’s
interests as secondary to hers . These views are largely borne out in the factual
descriptions recorded in the report of Mr Dowdall , which were not challenged in cross -
examination.

16

[32] Mr Dowdall , a qualified clinical psychologist and former Head of Department of
Clinical Psychology at the University of Cape Town (‘UCT’), and the Director of the
Child Guidance Clinic at UCT , was called as an expert witness for N. His academic
credentials and extensive professional experience, particularly in the domain of child
psychology and, more specifically, in providing expert evidenc e in child relocation
disputes , were not called into question . However , counsel for W sought to undermine
many of the conclusions reached in his report on the basis that these extended beyond
the course and scope of his expertise and were not the result of the application of any
scientific or psychological interpretative assessment. Mr Dowdall was accused of
usurping the function of the court in making a determination that N ’s actions in electing
to relocate were bona fide and reasonable . I am of the view that this criticism of Mr
Dowdall , with respect, was unfair and unwarranted . Mr Dowdall has over 30 years ’
experience in dea ling with relocation issues and was at pains to point out that he
consulted extensively with both parties and their respective family members. It is fair
to point out that the only ‘aberration ’ would be Mr Dowdall ’s ‘update d report ’ done in
February 2025 , in which he recorded a telephonic interview with H, without adopting
a ‘belts and braces approach ’ of alerting W to the intended call , or ensuring that H was
at a neutral venue when the interview was carried out to avoid the possibility of him
being unduly influence d by N when responding to questions . I believe that the criti cism
in respect of this interview is valid an d accordingly do not take into account anything
contained in that report. As for the main report, I am satisfied that it provides a useful
background to the parties ’ approach es toward each other , their respective approach es
on the issue of relocation , and what they consider to be in the best interest s of H.

[33] It was further contended by counsel for W that the relocation application was
motivated by the need to ‘spite ’ W, following his application from primary care (which
he eventually withdrew) . Upon consideration of th e evidence, I find no support for this
contention. N admitted to not having a good relationship with W and made no pretence
to shy away from their problems and her ‘inflexibility ’ in respect of arrangements as to
when H may be picked up and dropped off. While Mr Dowdall ’s report w as also critical
of N’s behavio ur, she was accused of ‘gatekeeping ’, again a reference to her requiring
strict adherence to the terms of the court orders. This assertion is further fuelled by
N’s decision that when she is away from Durban for whatever reason, H is left in the
care of her parents , rather than in W ’s care. She contend ed, according to Mr Dowdall ’s
17

report, that she is under no obligation to leave H in W ’s care, as this is not s tipulated
in any of the court o rders.

[34] Mr Dowdall ’s report repeatedly highlighted the propensity for seemingly minor
issues to escalate into serious conflict between the parties. The point made by Mr
Dowdall is that, if N’s application for relocation were refused , compelling her to remain
in South Africa away from her parents, this would likely have a disastrous effect on the
already fraught co-parenting dynamic between herself and W, as she would no doubt
want t o seek retribution against him for opposing her decision. It is not in dispute that
the parties have been engaged in constant litigation since their separation and have
turned to the courts to resolve co-parenting disputes that they have been unable to
resolve independently . This, in turn, as captured in Mr Dowdall ’s report, has had a
negative impact on H ’s academic performance . The environment is described by one
of the therapists as ‘toxic’ and an ‘unhealthy environment ’. It is for this reason that Mr
Dowdall conclude d that
‘we have two parents who independently are loving to H and concerned about him and within
their own spheres are capable parents. However, they have never been able to co -parent in a
way that is independent of their irritation and resentments of each other a nd co -parenting has
become the arena in which they continue their conflict with each other. All this child wants and
needs is his parents (both of whom he loves) to be tolerant, decent and supportive to each
other .’
Mr Dowdall suggest ed that it would be ‘wishful thinking ’ to assume that their
relationship will improve if N is directed to remain behind in South Africa.

[35] I now turn to the legal principles, distilled from the case law, which apply in child
relocation disputes. The principles f or determining relocation disputes involving minor
children have now been clearly distilled in cases by the Supreme Court of Appeal ,
including Jackson v Jackson ,6 where Scott JA , writing for the majority, stated the
following :
‘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 re fuse leave for the children to be
taken out of the country if the decision of the custodian parent is shown to be bona fide and

6 Jackson v Jackson 2002 (2) SA 303 (SCA) ( Jackson ) at 318E -I para 2.
18

reasonable . But this is not because of the so -called rights of the custodian parent; it is
because, in most cases, even if the a ccess 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. Indee d, 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 pecul iar facts and
circumstances with which they were concerned. ’ (My underlining for emphasis .)

[36] It bears noting that in Jackson , a father of two young children sought to relocate
to Australia with them. In terms of the divorce order , the father was the custodian or
primary caregiver of the minor children. Despite this, the S upreme Court of Appeal
agreed with the full court of the KwaZulu -Natal Division of the High Court that the
evidence showed that the children spen t equal amounts of time with both parents and
were indeed more closely attached to their mother. The Supreme Court of Appeal
commented that there was n o ‘real separation between mother and children ’, differing
from cases where access to the non-custodian parents is li mited to alternate
weekends.7 In contrast , in the present matter, H spends approximately eight nights
per month with W, and the remainder of the month is spent with N and his maternal
grandparents.

[37] Following the decision in Jackson , the Supreme Court of Appeal in F v F8
focused more acutely on the role of women , who almost invariably occup y the position
as the primary caregiver . The court also highlighted the disproportionate impact that a
refusal to grant a relocation application may have on women, particularly in the context
of societal expectations and norms . Maya JA , writing for a unanimous court, made the
following observations, which resonate with the stance of N in the present matter ,
whom I described earlier as an individual who is highly intelligent, firmly rooted in her

7 Ibid at 321B -C para 10.
8 F v F 2006 (3) SA 42 (SCA) ( F v F ).
19

faith, fiercely independent , and deeply committed to ensuring the best interests of her
child.

[38] In determining whether a proposed relocation is in the child's best interests,
‘… the child 's wishes in appropriate cases. It is an unfortunate reality of marital 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 geo graphical
area and raising their children together whilst rebuilding their lives will, in many cases, not be
possible. Our Courts have always recognised and will not lightly interfere with the right of a
parent who has properly been awarded custody to choo se in a reasonable manner how to
order his or her life. Thus, for example, in Bailey v Bailey , the Court, in dealing with an
application by a custodian parent for leave to take her children with her to England on a
permanent basis, quoted - with approval - the following extract from the judgment of Miller J
in Du Preez v Du Preez :
“[T]his is not to say that the opinion and desires of the custodian parent are to be
ignored or brushed aside; indeed, the Court takes upon itself a grave responsibility if it
decides to override the custodian parent's decision as to what is best in the interests
of his ch ild and will only do so after the most careful consideration of all the
circumstances, including the reasons for the custodian parent's decision and the
emotions or impulses which have contributed to it. ”
The reason for this deference is explained in the m inority judgment of Cloete AJA in
the Jackson case as follows:
“The fact that a decision has been made by the custodian parent does not give rise to
some sort of rebuttable presumption that such decision is correct. The reason why a
Court is reluctant to i nterfere with the decisions of a custodian parent is not only
because the custodian parent may, as a matter of fact, be in a better position than the
non-custodian parent in some cases to evaluate what is in the best interests of a child
but, more importan tly, because the parent who bears the primary responsibility of
bringing up the child should as far as possible be left to do just that. It is, however, a
constitutional imperative that the interests of children remain paramount. That is the
''central and constant consideration''. ”’9 (Footnotes omitted.)

[39] Counsel for N submitted that the opposition by W to her relocation was intended
to ‘shackle ’ N to the jurisdiction of the court, and to thwart her movement to any other

9 F v F para 10.
20

destination , while she remains the primary caregiver of H. If she were prevented from
relocating with H, N state d that she would remain with him in Durban. Mr Dowdall
opines that N would then remain ‘in a kind of service capacity to her ex -spouse so that
he can maint ain a certain frequency of contact ’. At the same time, the non -custodial
parent (W) is not subjected to these limitations or indeed the onerous duty of having
to raise H , and constantly being available for his needs .

[40] This disproportionate ‘duty’ received attention of the court in F v F,10 where the
following was stated:
‘[11] From a constitutional perspective, the rights of the custodian parent to pursue his or her
own life or career involve fundamental rights to dignity, privacy and freedom of movement.
Thwarting a custodian parent in the exercise of these rights may well have a severe impact
on the welfare of the child or children involved. A refusal of permission to emigrate with a child
effectively forces the custodian parent to relinquish wh at he or she views as an important life -
enhancing opportunity. The negative feelings that such an order must inevitably evoke are
directly linked to the custodian parent's emotional and psychological well -being. The welfare
of a child is, undoubtedly, best served by being raised in a happy and secure atmosphere. A
frustrated and bitter parent cannot, as a matter of logic and human experience, provide a child
with that environment. This being so, I cannot agree with the views expressed by the Full Court
that “the impact on S of the appellant's feelings of resentment and disappointment at being
tied to South Africa, or the extent to which her own desires and wishes are intertwined with
those of S ” did not deserve “any attention ” and that “[i]n arriving at a ju st decision [a Court]
cannot be held hostage to the feelings of aggrieved litigants ”.
[12] 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 will - 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. 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. As was pointed out by Gaudron J in a minority judgment in U v
U,11 the leadin g Australian case on relocation:

10 F v F paras 11 -12.
11 U v U [2002] HCA 36 para 36.
21

“[I]t must be accepted that, regrettably, stereotypical views as to the proper role of a
mother are still pervasive and render the question whether a mother would prefer to
move to another state or country or to maintai n a close bond with her child one that
will, almost inevitably, disadvantage her forensically. A mother who opts for relocation
in preference to maintaining a close bond with her child runs the risk that she will be
seen as selfishly preferring her own int erests to those of her child; a mother who opts
to stay with her child runs the risk of having her reasons for relocating not treated with
the seriousness they deserve. ”’

[41] The decision of N to relocate to Portugal was criticised as being reactionary
and a retaliatory stance in light of W ’s application for increased contact with H, and
later, his application seeking primary care. N ’s grounds for relocation , as set out in her
pleadings, were essentially dismantled under cross -examination, to the extent where
the only factor remaining which formed the primary basis of her relocation , was the
need to be with her elderly parents, who had decided to immigrate to Portugal. Added
to this was the fact that she would be joined by her sister and her family who ha d
decided to emigrate from Belgium to Portugal.

[42] It was submitted by counsel on behalf of W that the relocation to Portugal offers
neither N nor H a lifestyle or opportunities for development better than those they
would receive in South Africa. H currently attends a private school and remains on a
private medical aid scheme, both paid for by W. On the other hand, a relocation to
Portugal would see H attending a public, English medium school , and utilising public
health facilities via N ’s social sec urity. Accordingly, it was submitted that the primary
reason advanced by N was a factor that would benefit her alone and would not offer
any benefit to H. Furthermore, a s N would still remain gainfully employed as a software
engineer with her present compa ny, there are no career or financial benefits for her
arising from the move . On this basis, it was contended that the factors which informed
Mr Dowdall ’s conclusion that relocation would be in the best interest s of H are
undermined and should not be relied upon.

[43] In light of the evidence, t he central issue which emerged is whether N’s sole
reason advanced for relocating , namely wanting to be with and live with her parents,
22

is sufficient to meet the threshold of being bona fide and reasonable. Maya JA set out
the test in the following manner in F v F:12
‘While attaching appropriate weight to the custodian parent's interests, Court s must, however,
guard against “too ready an assumption that the [custodian's] proposals are necessarily
comp atible with the child's welfare ”. The reasonableness of the custodian's decision to
relocate, the practical and other considerations on which such decision is based, the extent to
which the custodian has engaged with and properly thought through the real advantages and
disadvantages to the child of the proposed move are all aspects that must be carefully
scrutinised by the Court in determining whether or not the proposed move is indeed in the best
interests of the child .’ (My emphasis and footnote omitted. )

[44] The above extract makes is clear that while the approach of our courts generally
favours a relocation application where the custodial parent ’s decision is shown to be
bona fide and reasonable , this is not because of the so-called rights of the custodial
parent , or the existence of any presumption in their favour. Instead, i t is because it will
usually not be in the interests of the child to relocate if that decision is not reasonable
and bona fide . Notwithstanding the strong sentiments expressed in F v F affirming the
freedom of movement of a cust odial parent, in bears noting that the court ultimately
dismissed th e mother ’s appeal seeking the court ’s consent to relocate. While the
Supreme Court of Appeal found that the appe llant’s decision to relocate was
undertaken honestly and in good faith, despite a ‘genuine motivation ’, it nonetheless
found that her decision was ‘not as well -researched and investigated as they should
have been ’.13 There was a lack of a structured plan for relocation, with plans constantly
changing , and ‘too many imponderables ’ to enable the court to assess the likely effect
of the move on the minor child.14

[45] In contrast , in the present matter, N, as the custodial parent, has set out in detail
her investigation into appropriate schooling for H, his medical aid provision, her
employment status , and her financial well -being to enable her to support herself and
her child, as well as the important fact or of living with her extended family, most
important of which are her parents , with whom she and H have been living since her
separation from W in 2017 . I am satisfied that the plans for relocation are not

12 F v F para 13.
13 Ibid para 20
14 Ibid para 21.
23

reactionary or retaliatory in nature, nor do they reflect an impulsive decision made in
response to actions by W. On the contrary, they have been carefully considered and
preceded by a reconnaissance trip to Portugal undertaken by N. As such, the
relocatio n plan does not suffer from the ‘imponderables ’ identified by the court in F v
F.15

[46] The report of Mr Dowdall emphasised that the interests of H could not be
viewed in isolation from those of the custodial parent , N, seeking relocation , who he
described as the parent most a ttuned to the full range of the child’s needs , and an
‘active primary parent ’ of H responsible for nurturing the child , who was found to be
gentle, well -mannered , and confident. In the event that N was compelled to re main in
the jurisdiction of the court, Mr Dowdall state d that she would be isolated and more
stressed without the support of her parents, who have always backed her up. Her
already negative attitude towards W will only be aggravated , and she would see in
him the source of her frustrations, obstructing her from leading the life she envisaged
for herself and H. He would be essentially blamed for any misfortune that could befall
N and H if they were to remain, most prominently any act of vandalism or c rime that
they may experience. To that end, the best interests of the child are intertwined with
those of his mother. If N is stressed or unhappy, this would inevitably have a ripple
effect on H ’s emotional well -being. This was alluded to by Satchwell J in LW v DB ,16
where reference is made to the fact that altho ugh the best interests of the child are
paramount, they must be considered in the broader context. The court made the
following observation :17
‘As was pointed out by Kirby J in the decision of the Australian High Court in U v U [2002] HCA
36, although the best interests of the child a re to be treated as paramount, “They are not to
be elevated to the sole factor for consideration. The economic, cultural and psychological
welfare of the parents is als o to be considered, because they are human beings and citizens
too and because it is accepted that their welfare impacts upon the welfare of the child. The
general quality of life of both the par ents and the child is relevant ”...’


15 Ibid.
16 LW v DB 2020 (1) SA 169 (GJ) ( LW v DB ).
17 Ibid para 63.
24

[47] Counsel for W relied on Hinds v Hinds ,18 in which a Full Court of this division
dismissed an appeal by the mother of a young boy who wished to relocate with him to
Zimbabwe following her divorce . At the time when the mother ’s application to relocate
was dismissed by the high court, the child was barely five years old. The mother sought
to relocate , as she intended to marry a resident of Zimbabwe . Both parents, as in the
present case , were devoted to their child. The Office of the Family Advocate concluded
that the child should not be relocated and the primary reason for the relocation was
that the mother wanted to pursue a relationship with a gentleman and taking her son
along ‘was the inevitable consequence ’.19

[48] The high court found that the decision to relocate was made without adequate
prior consideration of the needs of , or the impact of such a move on the child , and
without prior consultation with the father. The full court could find no misdirection in the
decision of the high court and accordingly dismissed the appeal. Olsen J , while
agreeing with the order, disagreed with reasoning of the majority (per Van Zyl and
Koen J J) and placed considerable stow on the effect that the refusal to relocate would
have on the appellant ’s right to freedom of movement.20 In doing so, he aligned himself
with the views ex pressed by Maya JA in F v F on the differing treatment accorded to
custodial and non -custodial parents. Koen J , in a separate judgment , (Van Zyl J
concurring ) disagreed with Olsen J and in particular his reliance on paragraph s 11-12
of F v F . Koen J cautioned against an ‘unqualified acceptance and applic ation in all
matters which might restrict the freedom of custodian parents ’.21 He remark ed that the
‘reliance on the sentiments expressed in F v F would not be justified ’ and should not
be a consideration influencing the outcome of the application.22

[49] The facts in Hinds do not provide a detailed history of the parenting
contributions by both parties and therefo re it is difficult to discern the basis for Koen J
to have concluded that ‘[t]he notion that non -custodian fathers are able to relocate at
will because they have no recip rocal legal obligation to maintain contact, is with
respect a cynical approach unless th e facts of a particular case justify such a

18 Hinds v Hinds [2016] ZAKZPHC 92 ( Hinds ).
19 Ibid para 24.
20 Ibid para 55.
21 Ibid para 65.
22 Ibid para 66.
25

conclusion ’.23 I do not interpret F v F , as a whole , to hold that as a custodial parent ’s
rights to dignity, privacy , and freedom of movement are impacted, such a parent ’s
rights must always trump that of the non-custodial parent. Maya JA notes that the
impact on the custodial parent is not totally irrelevant :24
‘What is evident from both Jackson and the cases which preceded it is that children's interests
are more often than not intertwined with those of their caregivers and that Courts must thus
properly consider the impact on the custodian parent of a refusal to remove a child insofar as
such refusal may have an adverse effect on the custodian parent and in turn the child. ’

[50] Koen J ’s views in Hinds , in m y respectful view, appear t o be at variance with
the dicta in F v F.25 The facts in Hinds are distinguishable from the present case , and
to that extent, I do not consider Koen J ’s judgment to be binding on me in this case. I,
however , respectfully disagree with the notion that just as non -custodial parents have
to conceal their disappointment when the y lose daily contact with their child, so too
should the custo dial parent accept the loss of life enhancing opportunities from
emigration , as the best interests of the child essentially means the maintaining of
regular contact with his or her non -custodian parent. This approach, in my respectful
view, is primarily focused on what serves the interests of the parents , be they custodial
or non -custodial , rather than prioritising the best interests of the minor child. I am also
of the view that it is altogether too simplistic an approach to suggest that custodial
parents seeking to relocate ( who are disproportionately women)26 would seek to hold

23 Ibid para 71.
24 F v F para 17.
25 See Ruta v Minister of Home Affairs [2018] ZACC 52; 2019 (2) SA 329 (CC) para 21 where the
Constitutional Court held :
‘[R]espect for precedent , which requires courts to follow the decisions of coordinate and higher courts,
lies at the heart of judicial practice. This is because it is intrinsically functional to the rule of law , which
in turn is foundational to the Constitution. Why intrinsic? Because without precedent, certainty,
predictability and coherence would dissipate. The courts would operate without map or navigation,
vulnerable to whim and fancy. Law would not rule .’ (Footnotes omitted.)
26 See LW v DB paras 78 -79:
‘[78] Further, one should not lose sight of the fact that primary caregivers or custodial parents are most
frequently the mothers. It is perhaps a notorious fact that —
“mothers, as matter of fact, bear more responsibilities for child -rearing in our society than do
fathers. This statement is, of course, a general isation. There will, doubtless be particular
instances where fathers bear more responsibilities than mothers for the care of children. In
addition, there will also be many cases where a natural mother is not the primary care giver,
but some other woman ful fils that role, whether she be the grandmother, stepmother, sister, or
aunt of the child concerned. ” [Goldstone J in Hugo supra [77] at 22E – G.]
[79] This means that the aforesaid restriction on mobility and abrogation of “freedom of movement ”
would impact more inequitably upon women than upon men. That may not be the intention behind an
approach which requires primary caregivers or custodial parents to remain resident where the other
parent chooses to be resident. But discrimination which is unintend ed or unforeseen or even made in
26

the courts effectively to ransom on the basis that if relocation is refused, their resultant
unhappiness would undoubtedly rub off on the minor child, thereby militating against
a refusal of such applications. As the report of Mr Dowdall indicates, these conclusions
are the result of an extensive study.27 Ultimately, a s Scott JA cautioned in Jackson28
‘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 ’.

[51] In this matter , the court was presented with only N’s version in support of her
application to relocate to Portugal. I have not had the benefit of any evidence on be half
of W in opposition to that of N. The same applies to N’s expert witness , Mr Dowdall ,
whose written report was handed in as an exhibit . I am satisfied that Mr Dowdall was
not biased in his conclusions and he provided cogent explanations for his
recommendations. W’s concern, as reflected in Mr Dowdall ’s report , is that H’s
relocation to Portugal would effectively sever the close relationship between him and
his son, replacing regular in -person contact with virtual communication, except for a
period of two months , during which he w ill have unrestricted access to and contact
with H. It is also significant to point out that Mr Dowdall attached weight to H ’s
childhoo d bonding period with W, which in his view, laid the foundations for a secure
bond of attachment between the two. Even in the event of H relocating, according to
Mr Dowdall, this attachment would endure. As I have already alluded, I do not believe
that N will breach the terms of an order requiring her to bring H back to South Africa
for visitation purposes with W.29 Counsel for N informed the court that in order to
demonstrat e her commitment to comply with an order requiring her to return with H to
South Af rica twice a year, N undertakes to approach a Portuguese court or

good faith is still not necessarily fair. I suggest that careful consideration need be given to applying the
“best interests ” principle in a manner which does not create adverse effects on a discriminatory basis
— in this c ase gender discrimination. ’
27 Mr Dowdall ’s report at para 2.6.9 records the following:
‘Since we are primarily concerned with the best interests of the child, however, does N ’s well -being
really matter in this assessment? Yes, it does, since she is the primary attachment figure and primary
caregiver of the child. Wallerstein ’s extensive 25 -year follow -up study of children of divorce indicated
that “All our work shows the centrality of the well -functioning custodial parent -child relationship as the
protective factor during the post -divorce years ” (Wallerstein and Tanke, 1996). To the extent th at she is
stressed or unhappy, there would be an inevitable knock -on effect in H ’s emotional life because of their
closeness. ’
28Jackson at 318H -I para 2.
29 Mr Dowdall ’s report at para 3.9 states as follows ‘…even W has said that N obeys Court Orders “to
the T” and I think that the best prediction of future behaviour is past performance ’.
27

administrative authority for a mirror order to be granted , thereby making the terms of
any order granted by this court binding on her while in Portugal.

[52] Mr Dowdal l carefully weighed up the competing interests of the parties, having
interviewed both sides , and was of the view that the scenario in which H ’s primary
residence and care remains with N is the most preferable outcome, serving his best
interests. After cons idering the evidence before me, and even to the extent that the
primary motivation of N for wanting to relocate to Portugal is to be with her aging
parents , I am satisfied that as a parent, the decision is properly thought through,
rational, reasonable , and bona fide .

[53] As parents, both N and W are under a duty to ensure that they do not do
anything that interferes with or impedes H’s development and upbringing in a new
country. He will no doubt experience the pain of moving away from his father and his
paternal family. The separation of his parents, more than six years ago, would have in
some measure prepared him for a degree of distance between his maternal and
paternal families. As pointed out in Van R ooyen v Van Rooyen ,30 young children , who
are the subject of relocation disputes , will have to become accustomed to living and
attending school in a tot ally new environment, having to make new friends , and
adjusting to new ways and a new culture. At the same time , H will have the care and
support of his grandparents , a support base which he has become accustomed to.
The distance between N and W will undoubtedly remove the trigger for conflict , a
concern highlighted by Mr Dowdall in his report. Counsel for W described it as two
parents who cann ot seem to agree on how to raise their child. However one
characterises it, their acrimony towards each other has had a ripple effect on H. With
this source of confrontation out of the way, H ’s development into a teen ager will be
unhindered.31

[54] N is committed to ensuring that H will remain in contact with W via electronic
communication , through FaceTime, Skype or WhatsApp , or any other means. She has

30 Van Rooyen v Van Rooyen 1999 (4) SA 435 (C) ( Van Rooyen ) at 439E -G.
31 In Van Rooyen at 440E -F, the court made the following comments pursuant to the granting of a
reloca tion order in favour of the mother ‘I would reiterate that I accept the mother ’s good faith and
emphasise that it is her sacred duty to respect and foster the relationship between the children and their
father ’. The duty placed on N once the relocation to Portugal is completed will be no less.
28

also undertaken to ensure that H will be accessible to be visited by W in the event of
him travel ling abroad, through Portugal. This would have no impact on the requirement
of N returning H for visits in South Africa with W twice a year, for ‘block ’ contact. It is
worth noting that while W will be deprived of exercising regular physical contact with
H, the block contact and access to H , if he were to visit Portugal, in some measure,
ameliorate s the hardship occasioned by the granting of the relocation order.

[55] In light of my view that N be granted an order authorising the relocation of H
with her to Portugal, I turn to the issue of costs. It is generally accepted that in
relocation disputes , where the enquiry is essential ly what is in the best interests of the
child, no costs should be award. Counsel for W submitted tha t N’s application for
relocation be dismissed with costs . On the other hand, it was submitted on behalf of
N that her application for relocation to Portugal , which arose in October 2022 in her
declaration filed under case number D376/2020 , should prevail, with costs. Her earlier
application to relocate to Turke y, after opposition, morphed into the present application
to relocate to Portugal. In addition, she further contended that W also be liable for the
costs occasioned under case number D 1062/2021 , in which he instituted proceedings
seeking primary residence of H. Both the respective proceedings were consolidated
and set down together for hearing.

[56] It is common cause that the consolidated trial did not proceed on 15 April 2024
(when it was set down for five days) , as W ’s counsel withdrew shortly before the matter
could be heard. At the time of this adjournment, the court directed the Family Advocate
to provide updated reports. It further granted an order preventing W from employing
further experts for the purpose of conducting further assessments and specifically
directed that H and N did not have to comply with any request to submit themselves
for further assessments . It has been a feature of th ese proceedings that all measure
of experts ha ve been employed by both parties . A striking feature of the trial was that
despite subjecting N and H to a barrage of assessments, W chose not to testify at the
trial nor to call any of the host of experts whom he had engaged over the years. Even
at the pre -trial conference, W indicated that he would be calling expert testimony in
support of his case. It begs the question, in my respectful view, what exactly motivated
W in pursuing this litigation , alternatively the basis for him or his witnes ses not
29

testifying under oath ? It was , after all , on this basis that two weeks were allocated for
the trial. As matters turned out, a total of eight days were used.

[57] Although there is no strict onus in the conventional sense in child relocation
disputes, it nonetheless requires evidence from both parties so that the court can
exercise its judicial discretion in making an order that is fair and just. The failure by
one parent to present any evidence in such proceedings has the po tential to derail a
just outcome. Their failure to participate might suggest an ulterior motive in launching
proceedings or defending the proceedings launched by the other parent , especially
where no explanation is proffered for this stance . The bar of cur iosity goes higher ,
particularly as the central issue is the best interest s of one’s child.

[58] The dispute between the parties has dragged on for more than four years ,
despite it also being subjected to judicial case management. Delays were occasioned
at various intervals, to either a change of counsel, engaging new experts , or additional
days for trial . Most of these delays were attributed to W. Section 6( 4)(b) of the
Children ’s Act 38 of 2005 provides that in matters concerning the best interests of the
child, delays in proceedings are to be avoided, and require expeditious finalisation.32
On the issue of costs , in F v F,33 the SCA held that where both parties, in pursuing their
claims, acted bona fide in what each of them perceived to be in the best interests of
their child, each party should bear his or her own costs of appeal. N has had to defend
W’s claim for primary residen ce of H , which he was granted leave to withdraw on the
morning of t he hearing . The stance of W, as I have explained earlier, was without
explanation. It would have entailed unnecessary preparation by those representing N.

[59] I am of the view that litigation conducted in this manner cannot escape an order
for costs or be shielded from consequences only because the matter relates to an
order in the best interests of a child. On the contrary, if parents truly focused on an
outcome in the best interests of the child, they would do whatever is required for an
expeditiou s finalisation of the matter. W has not acted in accordance with those
objectives. In respect of case number D1062/2021 in which W withdrew his application

32 See also Olsen J ’s remarks in Hinds para 53 as to the fast -tracking of matters, including appeals,
where the central issue relates to the best interests of the child.
33 F v F para 27.
30

for primary residence, in the exercise of my discretion, I find that W is liable to pay N’s
costs .

[60] As regards the proceedings in case number D376/2020 in which N’s claim to
relocate with H arose from a counterclaim, she has been substantially successful and
her position to exercise her choice as a parent , acting in the best interests of her child ,
and as an independent woman seeking to establish a better future for herself and her
child, has been vindicated. Her offers of visitation to W were reasonable and
accommodating. She did not approach the matter in an uncompromising manner, nor
acted unrea sonably. In the exercise of my discretion, taking into account the facts of
the matter and the circumstances in which the litigation unfolded, the election by W
not to testify , and not to rely on experts, the preparation of whose reports resulted in
this matter having dragged on , I am of the view that a just outcome is for W to be liable
for all costs incurred by N in advancing her counterclaim , including all costs reserved
on 5 November 2020 , 6 March 2020 , 17 November 2022 , 14 June 2023 and 5 August
2024.

[61] Counsel for N proposed the grant ing of various orders foreshadowed in a draft
order , incorporating a provision for the appointment of a parent ing co-ordinat or to
assist W and N in the exercise of their parental rights and responsibilities in regard to
H. In reaching the conclusion that I have regarding the relocation of N and H to
Portugal, I also considered that the resultant distance between the parties would
reduce the level of acrimony and tension between them. The appointment of a
parent ing co-ordinator, although well -motivated by N’s counsel, I find to be an
unnecessary intrusion at this stage. The parents of H are obliged to act civilly towards
each other , if only to ensure that H ’s development is not adversely affected. Their
divorce confirms that they cannot live together , substantiated by the evidence over
their frequent bickering. However, parenting and making decisions for one ’s child is
not something which should be, with respect, ‘out-sourced ’ to involve a parenting co -
ordin ator. Moreover, the appointment of a parenting co-ordinator was not an issue that
was canvassed at any length in the pleadings or in evidence, other than Mr Dowdall
favour ing such an appointment . I am accordingly not disposed to grant ing any order
in that regard .

31

[62] It was submitted on behalf of N that the costs in respect of H ’s bi-annual travels
to South Africa should be shared equally between the parties. I do not agree. Where
the relocation has been sought at the instance of N and the purpose of the visits is to
ensure that H maintains contact with W as he grows up, I believe that N should bear
these costs.34 This is not an expense that relates to the upbringing of the child, which
the parties are both liable to contribute towards. V isitation to and contact with W is a
right accorded to him as a parent. He should not have to bear the burden of costs for
an arrangement not of his making. Moreover, this relief was not contained in the
pleadings but emerged in the d raft order proposed on behalf of N, support for which is
found in the recommendations of Dr Dowd all. N did not tender any evidence on this
aspect , nor was W required to defend this relief on the pleadings. The gra nting of such
relief would, on this ground alone, be unfair to W.

[63] Finally, it is fair to conclude by stating that although N has been substantially
successful in obtain ing an order permitting her relocation to Portugal with H, in reality
there are no winners . H will no doubt experience the disrupti on of departing from the
country of his birth into a new culture. The court is reasonably certain, having had the
benefit of receiving evidence from his mother, that she will do everything necessary to
ensure that he grows up in a secure and comforting env ironment. The visits to his
father twice yearly will ensure that those bonds will not be broken. It is an unfortunate
reality that parents, on separation after divorce, assume intractable positions and
sometimes use their children as proxies to wage their own battles. I do not suggest
this to be the case in this matter, although much time and expense was devoted to a
dispute which could have been resolved by mediation , with both parents putting aside
their own personal feud s in the best interest s of their son.

[64] In the result, I make the following order:
1. The defendant is granted leave to remove the minor child, H[…] W[…] E[…] E[…]
S[…], a boy born on 5 December 2013, permanently from the Republic of South Africa,
in order to relocate to Portugal.
2. The plaintiff ’s consent for the minor child ’s permanent removal from the Republic

34 This view accords with a cursory perusal of numerous decisions in which permission to remove the
minor child is granted to the relocating parent .
32

of South Africa and his relocation to Portugal, as required by section 18(3) (c)(iii) of the
Children ’s Act 38 of 2005, is hereby dispensed wit h.
3. The minor child is entitled to depart from the Republic of South Africa and re -
enter the Republic of South Africa without the requirement of a parental consent letter
from the plaintiff, as provided for in regulation 6(12B) of the Immigration Regulatio ns,
2014 to the Immigration Act 13 of 2002, subject to compliance with the remaining
provisions of regulation 6 to the said Act.
4. On relocation of the minor child to Portugal, the plaintiff shall be entitled to
exercise contact with the minor child, as follows:
4.1 Direct physical contact:
4.1.1 for a period of six weeks during the minor child ’s European
summer school holiday of each year in South Africa ;
4.1.2 for a period of ten days during the minor child ’s European winter
school holiday of each year in South Africa ; and
4.1.3 at any stage during the year should the plaintiff travel to Portugal,
subject to the minor child ’s educational requirements and extra -curricular
activities.
4.2 Indirect contact in the form of telephone calls, emails, texts, Sk ype,
WhatsApp , and Face Time on a regular basis.
4.3 Any further or additional contact by agreement in writing between the
parties.
5. The costs of the minor child ’s flights and travel s between South Africa and
Portugal , which are to take place bi -annually, during the European winter school
holiday period and during mid -year, are to be paid by the defendant .
6. The plaintiff ’s obligations to contribute towards the minor child ’s maintenance
costs and expenses , as provided for in the order of the Maintenance Court on 21
August 2018 under case number 698/2018/201 , shall remain in place, save that the
plaintiff shall, on relocation of the minor child to Portugal, pay school fees equivalent
to the fees charged by A l Falaah College, which amounts will be payable monthly in
advance into the defendant ’s nominated bank account.
7. On relocation of the minor child to Portugal, and within a period of no longer
than four (4) months after arrival in that country, the defendant is directed to apply to
a court with competent jurisdiction or an administrative authority (where relevant) for
a mirror order to be granted on the same terms as provided for in this order.
33

8. The consent of the plaintiff, as required by section 18 (3)(c)(iv) of the Children ’s
Act 38 of 2005, for the submission of an application for a South African passport, and
the issuing thereof in respect of the minor child, who has South African identity number
1[…], be and is hereby dispensed with.
9. The requirement of the plaintiff ’s signature in the application for a South African
passport for the minor child, being the certificate of consent by both parents or
guardians of a minor, is dispensed with.
10. The Director General: Home Affairs is authorised and directed to accept the
application for a South African passport for the minor child at the instance of the
defendant, without the plaintiff being present when the application for a passport is
submitted, subject to compliance with the remaining provis ions of the South African
Passports and Travel Documents Act 4 of 1994, and the regulations thereto, without
the signature in the certificate of consent of the plaintiff.
11. The defendant shall be entitled to retain the minor child ’s South African passport
issued in terms of this order, and in the event of the plaintiff requiring the passport in
order to travel overseas with the minor child, he is directed to return the minor child ’s
passport to the defendant as soon as the minor child returns to South Africa .
12. The plaintiff is directed to sign all and any documents required for the issuing
of a visa for the minor child to enter into and reside in Portugal , such document s to be
signed by the plaintiff before a commissioner of oaths within a period of five ( 5) days
from the date of written request from the defendant.
13. In the event of the plaintiff failing to depose to the parental consent affidavit
required for a visa for the minor child, his consent is dispensed with and the applicant
is entitled to apply to t he Portuguese authorities without the consent of the plaintiff.
14. The plaintiff is directed to pay the defendant ’s costs in the proceedings under
case number s D376/2020 and D1062/2021, including all reserved costs on 5
November 2020, 6 March 2020, 17 Novemb er 2022, 14 June 2023, and 5 August
2024 . Such costs shall be assessed on scale B .
15. The plaintiff is directed to pay all of the reasonable costs incurred by the
defendant for the employment of her expert witness, clinical psychologist Mr Terence
Dowdall, including his qualifying fees, the costs of his attendance at trial , and his
traveling and accommodation costs.
34



_________________
CHETTY J
Appearances

For the Plaintiff: Mr A Stokes SC
Instructed by: CNG ATTORNEYS
Address: Suite 1001 Glenashley Views, 1st Floor
36 Newport Avenue, Glenashley
Durban
Ref: Shirone/JO/SWE001
Email: shirona@cngattorneys.co.za & pa@cngattorneys.co.za

For the Defendant: Mr S Humphrey
Instructed by: Essack & Hansa Attorneys
Address: Suite 10 First Floor
West Riding Office Park
50 West Riding Row, Durban
Tel: 031 207 3218
Email: info@eandh.co.za
Ref: Mr Essack/VC/MAT9919

Date of hearing: 10,11,12, & 13 March 2025
Date of Judgment: 6 June 2025 – electronically