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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)

JUDGMENT

Reportable
Case no: 2025-0539959

In the matter between:

M[...] S[...] S[...] Plaintiff


And

R[...] A[...] Defendant


Coram: Miller AJ
Heard: 17, 18, 29 and 30 September 2025
Delivered: 10 November 2025

JUDGMENT
_____________________________________________________________

Miller, AJ

Introduction

[1] The plaintiff met the defendant in 2016 in the Western Cape . They
lived together with the plaintiff’s parents in Cape Town from March
2017 to June 2020. They then moved into a home together in
Constantia, Cape Town. They married on 9 April 2022. Their daughter
was born on 19 May 2023 in Cape Town.

[2] The parties lived in Cape Town until they moved to the Netherlands on
18 January 2025.

[3] The plaintiff moved out of the parties’ rented accommodation in the
Netherlands on 14 April 2025.

[4] The plaintiff wants to return to live in Cape Town with the parties’
daughter. The defendant has refused to allow the plaintiff to do so.
There are proceedings pending in the Netherlands to determine this
issue.

[5] The plaintiff instituted divorce proceedin gs against the defendant in
this Court in mid-April 2025 (“the divorce proceedings”).

[6] In order to establish that this Court has jurisdiction in the divorce
proceedings, the plaintiff alleges that she is domiciled within the area
of this Court’s jurisdiction.

[7] The defendant has defended the action. He has , inter alia , raised a
special plea in abatement that this Court lacks jurisdiction in the
divorce proceedings on the basis that the plaintiff, the defendant and
their daughter have, since January 2025, been domiciled in the
Netherlands.

[8] Section 2(1)(a) of the Divorce Act, 70 of 1979 provides that this Court
has jurisdiction “if the parties or either of the parties is domiciled within
the area of jurisdiction of the court on the date on which the action is
instituted”.

[9] Accordingly, the plaintiff need only establish that she was domiciled
within this Court’s jurisdiction at the relevant date to establish that this
Court has jurisdiction in the divorce proceedings.

[10] It was common cause that the plaintiff’s domicile of origin was within
the area of this Court’s jurisdiction.

[11] On the present facts, the plaintiff cannot in law lose her domicile of
origin until she acquired another domicile by choice. 1 Accordingly, the
special plea turns on whether the plaintiff acquired a domicile of
choice in the Netherlands in January 2025 (or at any date prior to the
institution of the divorce proceedings).

[12] Section 1(2) of the Domicile Act, 3 of 1992 (“ the Domicile Act”)
provides that:


1 Section 3(1) of the Domicile Act, 3 of 1992.

“A domicile of choice shall be acquired by a person when he is lawfully
present at a particular place and has the intention to settle there for an
indefinite period”.

[13] In order to establish a domicile of choice, it is necessary to prove
residence within the jurisdiction in question (which is tested
objectively2) and an intention to settle with in that jurisdiction
indefinitely (which is tested subjectively3).

[14] It is common cause that the plaintiff and the defendant resided in the
Netherlands when the divorce proceedings were instituted.

[15] Accordingly, the question whether the plaintiff acquired a domicile of
choice in the Netherlands turns on whether she intende d to settle
there for an “ indefinite period” when she moved there on 18 January
2025.

[16] The defendant contends that she did and the plaintiff contends that
she did not.

[17] The onus of proving that the plaintiff acquired a domicile of choice in
the Netherlands is on the defendant. This is because it is the
defendant that asserts that the plaintiff acquired a domicile of choice in
the Netherlands when she moved there. 4 The defendant must
discharge this onus on a balance of probabilities.5

[18] By agreement between the parties, the special plea is to be
determined separately from the remainder of the divorce action in
terms Rule 33(4).

2 Chinatex Oriental Trading Co v Erskine 1998 (4) SA 1087 (C) at 1093J – 1094C, which
was cited with approval in OB v LBDS 2021 (6) SA 215 (WCC) at para [35].
3 Chinatex supra at 1093J-1094A.
4 Eilon v Eilon 1965 (1) (SA) 703 (A) at p719H.
5 Section 5 of the Domicile Act 3 of 1992.

The evidence


[19] I heard evidence from four witnesses. The plaintiff, Ms. Lemkus (the
plaintiff’s long-time friend) , Mr S[...] (the plaintiff’s father) and the
defendant.

[20] As set out in paragraph [1], the plaintiff met the defendant in 2016.
They lived together with the plaintiff’s parents in Cape Town from
March 2017 to June 2020. They then moved into a house in
Constantia, Cape Town. The house is ow ned by a company of which
the plaintiff is a director . The shares in the company are owned by a
trust of which the plaintiff is a beneficiary.

[21] The parties married on 9 April 2022.

[22] The parties discussed and agreed both before and during the
marriage that they wanted to live abroad after they had a child. This is
common cause.

[23] There is a factual dispute between the parties whether this agreement
meant that they would live abroad temporarily (as the plaintiff
contends) or would “emigrate” and therefore live abroad permanently
(as the defendant contends) after they had a child or children.

[24] The plaintiff was cross -examined extensively on this issue. She
consistently denied that there was ever an agreement to leave South
Africa permanently. Her evidence under cross -examination was that
the defendant’s use of the word “emigrate” was used loosely to mean
“live abroad”.

[25] The defendant testified that the agreement between the parties was
that they would leave South Africa permanently after having a child or
children. The defendant was not cross-examined at all on his evidence
in this regard.

[26] I return to this issue and the consequences of the plaintiff’s failure to
cross-examine the defendant on this evidence in due course.

[27] One of the central issues that bedevilled the parties’ relationship was
the defendant ’s relationship with the plaintiff’ s extended family. This
issue came to a head on a family holiday to Mauritius in 2022. The
plaintiff was pregnant at the time.

[28] After the holiday to Mauritius the defendant wrote a number of letters
to the plaintiff’s extended family. The plaintiff’s uncontested evidence
was that the defendant said things in these letters that the plaintiff
described as “vile”, “vicious” and “hideous”.

[29] Mr S[...]’s uncontested evidence was that the contents of these letters
were “ indescribable” and contained “ disgusting stuff ”. Mr S[...] said
that what people had been called by the defendant “was just beyond”.

[30] This caused a complete breakdown in the relationship between the
defendant and the plaintiff’s extended family. As a result, there was no
contact between them in the direct aftermath of the abovementioned
letters.

[31] Mr. S[...] attempted to patch things up with the defendant in order to
reconcile the defendant and the plaintiff’s family. He suggested getting
the family members and the defendant into a room to “ sort this out
because it is not insurmountable ”. Mr S[...]’s uncontested eviden ce
was that the defendant refused to do so and that matters escalated
from there.

[32] As a result of the abovementioned fallout , Mr S[...] made what he
described as a “ difficult decision” to exclude the defendant from their
family holiday over the December 2023 Christmas period. This was a
difficult decision because the family was a close-knit one.

[33] The unfortunate upshot was that the defendant was not prepared to
allow the plaintiff and the parties’ daughter to attend the family holiday.

[34] The parties also attempted what was described by the plaintiff as a
“reunification mediation ”. This process ende d when the defendant
walked out of a session attended by the plaintiff, the defendant and
the plaintiff’s parents. This was in February 2024.

[35] The parties travelled overseas in June 2024 to Italy, Portugal and the
Netherlands. One of the purposes of the trip was to decide whether to
move to the Netherlands or to Portugal.

[36] The defendant, with the plaintiff’s knowledge and consent, attended a
job interview in the Netherlands and in Portugal.

[37] The defendant was ultimately offered a job in the Netherlands, which
he, with the plaintiff’s agreement, accepted. The job commenced on 1
September 2024 . The defendant initially worked remotely from Cape
Town.

[38] The parties decided on a move to the Netherlands.

[39] There is a dispute of fact between the parties as to whether there was
a discussion about whether this move was temporary (as the plaintiff
contends) or to emigrate (as the defendant contends). I return to this
issue below.

[40] The uncontested evidence of the plaintiff, Ms Lemkus and Mr S[...]
was that the defendant had , by this time, become increasingly
controlling in the relationship, particularly regarding the family’s access
to the parties’ daughter and the plaintiff’s ability to socialize freely with
her friends.

[41] By August 2024, the marriage had become, in the plaintiff’s words,
“really rocky”.

[42] As a resu lt, the plaintiff started to consider leaving the marriage. The
plaintiff spoke to her sister -in-law about doing so. Her sister-in-law
gave her some practical advice about what to do if she decided to
leave.

[43] The plaintiff and her daughter did in fact leave the common home on 1
August 2024.

[44] The defendant pleaded with the plaintiff not to leave him and to return
to the common home. He said that he was in “such a dark place”.

[45] The plaintiff then returned to the common home after two nights . She
did so because she was scared for the defendant and was concerned
that he might try and kill himself.

[46] The plaintiff’s concern was based on the fact that the defendant had
previously engaged in acts of self -harm, including drinking bleach,
stabbing himself, hitting himself in the head with a frying pan and
threatening to commit suicide if the plaintiff left him.

[47] The plaintiff also testified that she wanted to try and make the
marriage work for the sake of her daughter.

[48] In a letter dated 6 August 2024 to the defendant, the plaintiff set out ,
on the advice of her sister -in-law, certain non -negotiable and
negotiable aspects of their relationship.

[49] The list of the plaintiff’s “non-negotiables” included her being able to
visit her parents with the parties’ daughter no matter who was present;
being able to visit her mother “ without feeling like I can’t breathe and
need to rush home ”; and being able to join family events no matter
who was present.

[50] This letter resulted in a very lengthy conversation between the plaintiff
and the defendant on the same day . The move to live in the
Netherlands was the focus of the conversation. The transcript of this
conversation was adduced in evidence.

[51] The following evidence from this conversation is relevant for present
purposes:

51.1 Although the plaintiff was reluctant to move to the Netherlands,
she ultimately agreed to do so. Her primary motiv ation was that
she loved the defendant, wanted to keep their (immediate)
family together and wanted their daughter to have her father.

51.2 One of the plaintiff’s concerns about moving to the Netherlands
was that if the parties ’ relationship ended then she would be
stuck there and would not be free to return to South Africa with
her daughter.

51.3 The defendant assured her in terms that she would be free to
do so. As he stated, if “we break up or whatever , you will come
back with the dogs… and you will live here” with our daughter.

[52] The plaintiff testified that her intention was to move to the Netherlands
for a “trial” period to see if the marriage could be saved. She was
cross-examined extensively by the defendant’s counsel on this issue.

[53] The plaintiff fairly admitted under cross -examination that she did not
expressly tell the defendant that she was moving to Amsterdam for a
trial period or for a set period. This is consistent with the absence of
any reference to a trial period in the transcript of the conversation
between the plaintiff and the defendant on 6 August 2024.

[54] The plaintiff’s explanation for not doing so was that she wanted to
avoid a serious confrontation with the defendant that might have
arisen had she done so.

[55] The plaintiff did, however, tell her father in October 2024 that the plan
in her mind was to give the move to the Netherlands a trial period .
Although the plaintiff said that she had a trial period of 6 months in her
mind, she said could not recall whether she told her father that she
had a 6-month period in mind.

[56] The reason she told her father that her move to the Netherlands was
for a trial period was to allay his concerns about h er moving to the
Netherlands in circumstances where her marriage was under
pressure; the defendant’s relationship with her family had broken
down and that she could end up stuck in the Netherlands and isolated.

[57] Mr S[...] concluded this aspect of his evidence by stating that his
conversation with his daughter ended his understanding that if the trial
did not work then she would, in one, two or three months, come back
to South Africa. Mr S[...] did not state that the plaintiff told him about
the length of the trial period.

[58] Mr S[...] was not cross -examined at all. His evidence is therefore
uncontested. I must and do accept it.

[59] Ms Lemkus testified that the plaintiff told her that her move to the
Netherlands was “ to test it out, see what the Netherlands was like ,
give it six months, and then make a call, reassess and make a call.”

[60] This is corroborated by the fact that Ms Lemkus told the plaintiff’s
mother in a contemporaneous WhatsApp message in early January
2025 (i.e. shortly before the parties’ move to the Netherlands) that the
plaintiff had “a timeline to reassess how things are going on that side”.

[61] Ms Lemkus also testified that one of the plaintiff’s friends had
suggested that she get the defendant to sign a document that would
enable her to come back to South Africa if she wanted to come back.

[62] Ms Lemkus asked the plaintiff the day before she left for the
Netherlands whether she had the suggested document. The plaintiff’s
response was that she was working on it.

[63] No such document was ever signed.

[64] The parties left for the Netherlands on 17 January 2025.

[65] In cross-examination, the defendant’s counsel repeatedly put it to the
plaintiff that the fact that she left for the Netherlands despite the issues
between the parties was to give effect to the parties’ agreement that
they would leave South Africa permanently after they had a child.

[66] The plaintiff consistently denied this on two grounds. First, that she left
South Africa for the Netherlands on a trial basis in order to see
whether the parties could make their relationship work . Second, even
if the relationship survived the trial period, she intended to return to
South Africa after being in the Netherlands for two years.

[67] The plaintiff’s uncontested evidence was that she did not alter her
affairs in South Africa in any manner consistent with an intention to
leave South Africa permanently or indefinitely. Thus, the former
common home was rented out rather than sold , the plaintiff retained
her South Africa tax residency, the plaintiff retained and continued to
use her South African bank ac counts, the plaintiff retained her South
African-based medical practitioners, the plaintiff retained her Vodacom
account and South African mobile telephone number , and the plaintiff
retained her supermarket loyalty cards and pharmacy accounts.


[68] The plaintiff also testified that even if the trial period had been
successful, the maximum period that she would have stayed in the
Netherlands was for a period of 2 years. This, the plaintiff said, was to
mirror the happy 2-year period she had spent abroad as a 9 -year-old
child. This is in dispute between the parties . I return to this issue
below.

[69] The defendant’s uncontested evidence was that he arranged his
affairs in a manner consistent with his decision that his move to the
Netherlands was permanent or indefinite. This included resigning from
his employ ment in South Africa, stopping his contributions to his
medical aid and retirement annuity and cashing out his investments.

[70] The plaintiff accepted under cross -examination that the defendant
intended to leave South Africa for the Netherlands permanently.

[71] Once they had moved to the Netherlands, the parties took out medical
insurance in the Netherlands , rented a property in the Netherlands ,
attended a “Moms and Tots Group ” together with their daughter and
enrolled their daughter in a play school and in a primary school.

[72] The parties were happy in the Netherlands for the first few months
after their arrival.

[73] The previous iss ues that caused the conflict between the parties
resurfaced after the plaintiff’s mother visited them in the Netherlands
towards the end of March 2025. This was the point of no return.

[74] The plaintiff left the parties ’ rented accommodation on 14 April 2025
and instituted the divorce proceedings.

The parties’ submissions


The plaintiff’s submissions

[75] In respect of the test to be applied to determine whether the plaintiff
intended to settle in the Netherlands for an indefinite period ( i.e. with
the requisite animus manendi), the plaintiff’s counsel cited the
following dictum in Eilon v Eilon6


“… the onus of proving a domicile of choice is discharged once … it is
proved that the de cujus had at the relevant time a fixed and deliberate
intention to abandon his previous domicile, and to settle in the country
of choice. A contemplation of any certain or foreseeable future event
on the occurrence of which residence in that country would cease,
excludes such an intention. If he entertains any doubt as to whether
he will remain or not, intention to settle permanently is likewise
excluded”.7


[76] The plaintiff’s counsel also refer to the authorities which have held that
the following factors are relevant to considering whether a person has
acquired a new domicile of choice: the period of residence at the
alleged domicile (the longer the residence the greater the probative

6 Eilon supra.
7 Eilon supra at 721A.

value in regard to the element of amimus)8; the motive for residing
there9; the ownership of property there ( or the sale of property in the
previous domicile )10; any circumstantial evidence indicating the
presence or a bsence of an animus mandendi; direct evidence about
the subjective intention to be domiciled in a certain area 11; and
evidence of past expressions of intention.12

[77] The plaintiff’s counsel then submitted that the defendant has not
discharged the onus of establishing that the plaintiff acquired a
domicile of choice in the Netherlands for the following main reasons:

77.1 The plaintiff did not sell the property in Cape Town in which she
had an indirect interest.

77.2 The parties resided in the Netherlands for less than three
months.

77.3 When the parties separated, the plaintiff indicated that she
wanted to return to South Africa.

77.4 The plaintiff’s presence in the Netherlands was affected in
some way by compulsion and was effectively involuntary as the
plaintiff went to Netherlands to try and save her marriage and to
keep her family together.

77.5 The plaintiff went to the Netherlands because the defendant
accepted a job offer there.


8 Smith v Smith 1952 (4) SA 750 (0) at 750 C-D.
9 Holland v Holland 1973 (1) SA 897 (T) at 904D-F.
10 Smith supra at 755H-756A and Eilon supra at 722C-D.
11 Webber v Webber 1915 AD 239 at 250.
12 See also H.G.W v M.W ZACHC 65 (26 March 2025) at para 35, which cited the helpful
summary of the factors set out in Joubert et al, LAWSA vol. 7(1) 3 edn at para 328.

77.6 The plaintiff never intended to emigrate but only to return to
Cape Town after a few months to establish whether the
marriage could be saved or, even if it could, after two years.

77.7 The plaintiff contemporaneously expresse d her clear intention
not to leave Cape Town permanently.

77.8 The marriage was a troubled one . There was a conflictual
relationship between the defendant and the plaintiff’s extended
family. The defendant pressuri sed the plaintiff to ch oose
between him and her family.

77.9 Prior to the defendant accepting employment in the
Netherlands, the plaintiff indicated in numerous discussions
with the defendant that she did not want to go to the
Netherlands at all , alternatively later and in any event for a
limited period of time.

77.10 The only reason that the plaintiff is not presently residing in
Cape Town is because the defendant refused to give her their
daughter’s passport when she left their rented accommodation
and refuses to give his permission for their daughter to return to
Cape Town with the plaintiff.

The defendant’s submissions

[78] For reasons that are not difficult to discern, the defendant’s counsel
focused on the dicta in the authorities which state, in essence, that the
animus manendi requirement is satisfied where a person intends to
settle in a country for an open-ended or unlimited time period even if

that intention is not absolute, irrevocable or excludes all contemplation
of a move if circumstances change.13

[79] In particular, the defendant’s counsel placed much store on the dictum
in OB v LBDS , citing CF Forsyth Private International Law (5 ed) at
141, that “ the most apt description of an intention to reside in a
particular place for an indefinite period is 'until and unless something,
the happening of which is uncertain, occurs to induce the person to
leave’’”.14

[80] Like the plaintiff’s counsel, the defendant’s counsel also referred to
various factors set out above that should be considered in determining
whether a person has acquired a new domicile of choice.

[81] With reference to the above, the defendant ’s counsel submitted that
the defendant has discharged the onus of establishing that the plaintiff
acquired a domicile of choice in the Netherlands when she moved
there on 18 January 2025. This was for the following main reasons:

81.1 The parties had discussed and agreed both before and during
the marriage (in 2022 whilst in Mauritius, in 2024 whilst
overseas and in the discussion on 6 August 2024) that they
would emigrate . The defendant’s counsel submitted that I
must accept this evidence as the defendant was not cross -
examined on this issue by the plaintiff’s counsel.15

13 V v V (ZAGPPHC) 324 (6 July 2017) at para 14, quoting Udny v Udny (1869) LR 1 Sc
&C Div 44 (one of the leading older cases on domicile of choice in English law);
Chinatex supra at 1093J-1094C; Ley v Ley's Executors and Others 1951 (3) SA 186
(A); and Eilon v Eilon 1965 (1) SA 703 (A) at 721A.
14 At para 36.
15 As authority for this proposition, the defendant’s counsel relied on the principle in
Republic of South Africa v South African Rugby Football Union 2000 (1) SA 1 (CC) at
paras 61 to 63 to the effect that if a point in dispute is left unchallenged in cross-
examination, the party calling the witness is entitled to assume that the unchallenged

examination, the party calling the witness is entitled to assume that the unchallenged
witness’s testimony is accepted as correct.

81.2 Despite the plaintiff’s concerns and misgivings about going to
the Netherlands, she u ltimately decided to and did go to the
Netherlands. In so doing, she was doing no more or less than
giving effect to the parties’ agreement that they would
emigrate. It was therefore her actions and not her
protestations that demonstrate her intention to move
indefinitely to the Netherlands.

81.3 Although her stated motive in going to the Netherlands was to
try and save her marriage, she did not indicate with any
certainty that she placed a fixed time limit on her attempt to do
so. As a result, the decision to move to the Netherlands was
for an open -ended period. The defendant submitted that the
evidence of Mr S[...] was not relevant and that I should
therefore ignore it.

81.4 The plaintiff’s evidence that she in any event would move back
to South Africa after two years with or without the defendant
was unconvincing as she also sai d that she did not want to
break up her immediate family unit.

81.5 If the plaintiff’s true intention was to move to the Netherlands
temporarily, it is inconceivable that she would not tell her
husband that this was the case in circumstances where it was
clear that he was packing up his life in Cape Town and leaving
permanently.


Animus mandendi: the law

The common law

[82] The animus requirement to establish a domicile of choice has a long
and rich history in our law.

[83] Prior to the enactment of the Domicile Act the question that exercised
the minds of the Roman -Dutch writers, scholars and our courts was
the degree of permanence required to establish the necessary animus
to acquire a domicile of choice.

[84] Schoeman has usefully summari sed this history in her article titled
“Domicile of choice and animus : How definite is indefinite? ”16 It is not
necessary for present purpose s to recount this history and the lively
debates that divided the scholars and judges in full. I highlight only
those steps in the development of our law on the animus manendi
requirement relevant to the determination of the case before me.

[85] In Johnson v Johnson17 De Villiers CJ (who delivered the majority
judgment) held, adopting the views of Westlake, an English academic,
that the “all contemplation of any event on the occurrence of which the
residence would cease” excludes intention required to acquire a
domicile of choice.18

[86] In Ley v Ley ’s Executors19 Centlivres CJ held that “ excludes all
contemplation” in Johnson v Johnson meant the following:

“As I understand the expression, it means that if the state of mind of
the de cujus is something like this, 'I may settle here permanently, and
anyhow I'll stay for a time; but perhaps I'll move to another country' the
intention required to establish a domicile is not present. But if his state

16 (1999) THRHR 62 at 272-284.
17 1931 AD 391
18 At 398. De Villers CJ held that Westlake’s view accorded with Voet’s propositum illic
perpetuo morandi and thus our common law.
19 1951 (3) SA 187 (A).

of mind is like this, 'I shall settle here', that is enough, even though it is
not proved that if he had been asked, 'Will you never
move elsewhere?' he might not have said something like, 'Well, never
is a long day. Who kn ows? I might move if I change my mind or if
circumstances were to change.' Any doubt actually present to his mind
as to whether he will move or not will according
to Westlake's statement exclude the intention to settle permanently,
but the possibility that , if the idea of a move in the future had been
suggested to him, he might not at once have scouted it does not
amount to contemplation of an event on which the residence would
cease. It is only the former that has to be disproved by the person
alleging a change of domicile.”


[87] This dictum thus distinguishes between contemplation of a change o f
residence and mere speculation about such a change.

[88] As Schoeman states, the dictum meant that the required animus
would only be defeated by genuine doubt about the permanence of a
person’s stay in the country in question. This therefore qualified what
constituted “ any event” in the Westlake test adopted in Johnson v
Johnson in the sense that it includes the contemplation of an event
that will not necessarily occur but which was definitely contemplated.20

[89] In Eilon v Eilon 21 Potgieter AJA ( writing the majority judgment), held
that it seemed quite clear that the words “excludes all contemplation”
in Johnson v Johnson could never mean and were never intended to
mean that the person in question has excluded from hi s (or her) mind
all possibility that in future he (or she ) might leave the count ry.22 In
other words, the intention of permanent residence was not excluded i f
it was contingent on an unforeseen event.

[90] Potgieter AJA then held that:

20 Schoeman supra at 280.
21 Eilon supra.
22 At 720 C-E.

“… the onus of proving a domicile of choice is discharged once … it is
proved that the de cujus had at the relevant time a fixed and deliberate
intention to abandon his previous domicile, and to settle in the country
of choice. A contemplation of any certain or foreseeable future event
on the occurrence of which residence in that country would cease,
excludes such an intention. If he entertains any doubt as to whether
he will rema in or not, intention to settle permanently is likewise
excluded”.23

[91] Eilon v Ellon marked the end of the development of the common law
development of the animus requirement.

The Domicile Act

[92] The enactment of the Domicile Act was preceded by a report on
domicile by the South African Law Commission.24

[93] After considering the cases referred to above , the views of the leading
academic writers, including Kahn, Forsyth and Pollak, and the position
under English law and other foreign jurisdictions, the Commission
recommended that the legislature adopt the third meaning ascribed to
the animus requirement by Pollak, namely “the intention to reside in a
country for an indefinite period”.25

[94] Pollak’s views emanate from his article titled “ Domicile” in the 1933
South African Law Journal . As part of his analysis of the animus
manendi requirement, he stated that the i ntention of a person
regarding his or her future residence in a country may be one of the
following four types:


23 Eilon supra at 721A.
24 March 1990 (Project 60).
25 Para 3.44.

94.1 An intention to reside in the country for a definite period (e.g.
for the next 6 months, and then to leave).

94.2 An intention to reside in a country until a definite purpose is
achieved (e.g. until a particular piece of work is completed,
and then to leave).

94.3 An intention to reside in a country for an indefinite period (i.e.
until and unless something, the happening of which is
uncertain, occurs to induce the person to leave).

94.4 An intention to reside in a country forever.26


[95] Pollak states that it is perfectly clear that neither the first nor the
second type of intention is sufficient to constitute the animus manendi
and that the fourth type of intention is obviously sufficient . It is, as
Pollak correctly stated, in respect of the third type that differences of
opinion exist.27

[96] The legislature accepted the Law Commission’s recommendation and
incorporated the first part of Pollak’s third meaning of “intention” in
section 1(2) of the Domicile Act, 3 of 1992. Thus section 1(2) of the
Domicile Act , in relevant part, provides that the test for the requisite
intentions is having “…the intention to settle there for an indefinite
period”.

[97] The legislature did not, however, include Pollak’s tag in section 1(2).


26 1933 SALJ (vol 50) 449 at 465.
27 Pollak, loc. cit.

[98] After setting out all four types of intention in full, Forsyth in Private
International Law (5th edn) describes the adoption of Pollak’s third type
of intention in section 1(2) of the Domicile Act as a “great advance”.

[99] The version of Pollak’s third type of intention , including the tag ,
received judicial support in OB v LBDS which, as I have set out above,
stated that the most apt description of an “ intention to reside in a
particular place for an indefinite period ” for the purposes of section
1(2) of the Domicile Act is “until and unless something, the happening
of which is uncertain, occurs to induce the person to leave”.

[100] The question that arises is how, if at all, does the tag to Pollak’s third
type of intention square with the test for the requisite intention as per
Potgieter AJA’s dictum in Eilon.

[101] Although section 1(2) of the Domicile Act requires an intention to settle
“indefinitely” rather than “ permanently” as per Eilon, the remainder of
the dictum in Eilon referred to above remains applicable and good law
to determine whether a person has met the requirements of section
1(2) of the Domicile Act.

[102] The trigger f or the abovementioned question is the fact that the tag
does not contain any reference to the foreseeability of the uncertain
event.

[103] The answer to this question is important to the present case. On the
assumption that the plaintiff’s trial move to the Netherlands was not for
a fixed period (an issue to which I will return below) , then the plaintiff
moved to the Netherlands for an open-ended or indefinite period. The
success or failure of the trial period to try and save the parties ’
marriage is an uncertain event. On this test, it would appear that the
plaintiff has the requisite intention in terms of section 1(2) to acquire a
domicile of choice in the Netherlands.

[104] As a result of the precarious state of the relationship , it is fair to
assume that the plaintiff had doubts about whether the trial period
would succeed or fail. On the assumption that the plaintiff intended to
return to Cape Town if the trial failed ( an issue to which I shall also
return below), then it would appear that she would not, on the test in
Eilon, have the requisite intention to have acquired a domicile of
choice in the Netherlands.

[105] The point is that the absence of any element on foreseeability
regarding the uncertain event in the Pollak test means that it is at odds
with Eilon and matters.


[106] In the footnote to the third type of intention Pollak refers to and quotes
the following test for requisite intention set out in the old English law
case of Lord v Colvin28:

“That place is properly the domicile of the person in which he has
voluntarily fixed the habitation of himself and his family , not for a mere
special purpose, but with a present intention of making it his
permanent home, unless and until something (which is unexpected , or
the happening of which uncertain) shall occur to induce him to adopt
some other permanent home.”

[107] Pollak does not explain why he omitted to include “unexpected” in his
definition of the third type of intention. Regardless of whether this
omission was intentional or in error, there does not seem to me to be
any cogent reason in principle for the omission.

[108] Including “unexpected” in the definition is material . If a person’s
intention is that he or she would be induced to leave a cou ntry on the
occurrence of an expected event , the requisite in tention to acquire a
domicile of choice would be absent.

28 S.C 28 L.J Ch 361. Pollak incorrectly cites the case as Lord v Cobvin.

[109] The inclusion of “ unexpected” would also align Pollak’s test with the
test in Eilon as an expected event is necessarily foreseeable.

[110] For these reasons, I do not consider that OB v LBDS intended to, or
did, alter the law in respect of the test to be applied to determine
whether a person has acquired a domicile of choice in terms of section
1(2) of the Domicile Act.

English law

[111] Our courts have a long history of drawing on the helpful learning from
English law on the test to be applied to determine whether someone
has acquired of a domicile of choice. I intend to follow suit.

[112] Re Fuld (No 3) held that “… a domicile of choice is acquired when a
man fixes voluntarily his sole or chief residence in a particular place
with an intention of continuing to reside there for an unlimited time.”29

[113] IRC v Bullock held that the expression “unlimited time” required some
further definition . Buckley LJ did so with reference to the following
example. A man might move to another country because he had
obtained employment there without know ing how long that
employment would last but without intending to reside there after he
had ceased to be so employed. B uckley LJ held that whilst his
prospective residence in that country would be “ indefinite” it would not
be “unlimited” in the relevant sense.

[114] Regarding the intention to return to one’s domicile of origin on the
happening of an event or a contingency, Re Fuld (No 3) held that

"(1) The domicile of origin adheres -unless displaced by satisfactory
evidence of the acquisition and continuance of a domicile of choice;

29 [1968] P 675 at 682D-E.

(2) a domicile of choice is acquired only if it is affirmatively shown that
the propositus is resident in a territory subject to a distinctive legal
system with the intention, formed independently of external pressures,
of residing there indefinitely. If a man intends to return to the land of
his birth upon a clearly foreseen and rea sonably anticipated
contingency, e.g., the end of his job, the intention required by law is
lacking; but, if he has in mind only a vague possibility, such as making
a fortune (a modern example might be winning a football pool), or
some sentiment about dyin g in the land of his fathers, such a state of
mind is consistent with the intention required by law. But no clear line
can be drawn; the ultimate decision in each case is one of fact -of the
weight to be attached to the various factors and future contingenc ies
in the contemplation of the propositus, their importance to him, and the
probability, in his assessment, of the contingencies he has in
contemplation being transformed into actualities. (3) It follows that,
though a man has left the territory of his do micile of origin with the
intention of never returning, though he be resident in a new territory,
yet if his mind be not made up or evidence be lacking or unsatisfactory
as to what is his state of mind, his domicile of origin adheres….".30


[115] In a similar vein, Buckley LJ in IDC v Bullock held that where the
contingency is not itself of a doubtful or indefinite character (bearing in
mind that it is the characteristic of a contingency that it is doubtful
whether that event will or will not occur ), the question is this: is there a
“sufficiently substantial possibility of the contingency happening to
justify regarding the intention to return as a real determination to do so
on the contingency occurring rather than a vague hope or aspiration?”

[116] Dicey, Morris & Collins, The Conflict of Laws (16th edn) summarise the
position under English law regarding the acquisition of a domicile of

position under English law regarding the acquisition of a domicile of
choice and contingencies as follows:

“A person who determines to spend the rest of their life in a country
clearly has the necessary intention even though he or she does not
consider that determination to be irrevocable. It is, however, rare for
the animus manendi to exist in this positive form: more frequently a
person simply resides in a country without any intention of leaving it,

30 [1968] P 675 at 684F-685D. This statement of law was approved in Agulian & Anor v
Cyganik [2006] EWCA Civ 129 (24 February 2006) at para 6.

and such a state of mind may suffice for the acquisition of a domicile
of choice. The fact that a person contemplates that he or she might
move is not decisive: thus a person who intends to reside in a country
indefinitely may be d omiciled there although he or she envisages the
possibility of returning one day to their native country. If they have in
mind the possibility of such a return should a particular contingency
occur, the possibility will be ignored if the contingency is vag ue and
indefinite, for example making a fortune or suffering some ill -defined
deterioration in health; but if it is a clearly foreseen and reasonably
anticipated contingency, for example the termination of employment,
or the offer of an attractive post in the country of origin, succession to
entailed property, a change in the relative levels of taxation as
between two
countries, or the death of one’s spouse, it may prevent the acquisition
of a domicile of choice. If a person intends to reside in a country for a
fixed period only, they lack the animus manendi, however long that
period may be. The same is true where a person intends to reside in a
country for an indefinite time but clearly intends to leave the country
at some time.”31

[117] There are three important points to draw from English law relevant to
the determination of the present case.

[118] First, if a person moves to another country for an indefinite or open -
ended period this does not mean that the person acquires a domicile
of choice in that country in circumstances where he or she intends to
return to his or her country on the happening of an event.

[119] Second, foreseeability of an event or a contingency that would cause
a person to leave a country plays a central role in determining whether
a person intends to reside in that country indefinitely and thereby
acquires a domicile of choice in that country.

[120] Third, where a person says that he or she intend to return to his or her

[120] Third, where a person says that he or she intend to return to his or her
domicile of origin on the occurrence of a contingency, this will be
ignored where the contingency itself is va gue and indefinite. It will,
however, be taken into account (along with other relevant facts) where

31 At para 6-043 and the authorities cited in the footnotes to this paragraph.

the contingency is clearly foreseen and reasonably anticipated or
there is a sufficiently substantial possibility of the contingency
happening to justify the intention to return.

[121] In my view, these three points are consistent with P otgieter AJA’s
dictum in Eilon and with Pollak’s third type of intention, subject to the
rider that it includes the word “unexpected” in the tag.

[122] As a result, one can apply them to determine this case.

Contingency cases in South African law

[123] The Domicile Act is silent about contingencies. This, Schoeman says,
raises the question whether they are relevant to the animus
requirement at all. With reference to the cases of Ricketts v Ricketts32
and Quayle v Quayle33 she concludes that there seem to be very few
contingencies, if any, which should be considered seriously.34

[124] The question in Ricketts was whether the defendant had acquired a
domicile of choice in Cape Town or whether he was domiciled in Port
Elizabeth. The defendant lived in Port Elizabeth for some years before
his marriage and intended to live with his wife in Port Elizabeth after
his marriage. The defendant wa s itinerant after his marriage. He left
his wife and ultimately took up employment in Cape Town, where he
remained for a number of years. He considered Cape Town to be his
permanent home.

[125] On the back of an admission by the defendant that he would have no
hesitation of moving to Port Elizabeth or elsewhere if he was offered

32 1929 EDL 221
33 1949 SR 203
34 Schoeman, op cit at p333.

more lucrative employment, the court found that the defendant was
domiciled in Port Elizabeth.

[126] The case pre -dated both Ley and Eilon and does not apply the
principles regarding contin gencies I have set out above. In my view,
no relevant conclusions about contingencies in our law can be drawn
from Ricketts.

[127] The question in Quayle was whether the defendant retained his
domicile of origin in England or acquired a domicile of choice in
Southern Rhodesia. The parties ’ marriage was a troubled one. After
they moved to England, the plaintiff and the parties’ child moved back
to Southern Rhodesia.

[128] The defendant then joined his wife and child in Southern R hodesia.
The marriage broke down relatively shortly thereafter. The defendant
remained in Southern Rhodesia after the breakdown of the marriage
and continued to work there.

[129] The defendant’s evidence was that when he moved back to Southern
Rhodesia he had mental reservations that he only intended to settle
permanently in Southern Rhodesia provided the marriage was
successful and that he always contemplated the possibility that the
marriage might brea k down , in which case he would return to
England.35

[130] Based on various objective contemporaneous facts, including the
contents of letters and an application for assistance premised on
entering Southern Rhodesia on a permanent basis, the court rejected
the defendant’s evidence on the facts.


35 At 206.

[131] The enquiry and analysis of the evidence in Quayle is consistent with
the position that contingencies have a role to play in determining
whether a person had the requisite intention to acquire a domicile of
choice.

[132] The fact that the Domicile Act does not deal expressly with
contingencies does not render them irrelevant in the enquiry into the
animus requirement. It is evident from the legal pr inciples set out
above that they can and do, in appropriate cases, form part of the
inquiry into whether a person intended to settle in a country
indefinitely.

[133] As a general proposition, I do not think that Schoeman is correct to
conclude that there seem to be very few contingencies, if any, which
should be considered seriously. Each case must be decided on its
own facts with reference to the governing principles set out above.

Applying the law to the present case

[134] I turn now to apply the legal principles set out above to the present
case.

[135] On the facts, I accept the plaintiff’s evidence that she moved to the
Netherlands on a trial basis in an attempt to save her marriage. This is
for reasons set out directly below.

[136] The plaintiff’s evidence was supported by other cogent
contemporaneous evidence, being the fact that she told her father and
long-term friend that she was moving to the Netherlands on a trial
basis. She also made it clear to the defendant in the conversation on 6
August 2024 that if their relationship ended she did not want to be
stuck in the Netherlands and not be free to come back to South Africa.
Although not stated in express terms, this, in the context of the issues

in the parties ’ relationship and the fact that the plaintiff had recently
moved out of the common home, does imply a trial period.

[137] A move to the Netherlands on a trial basis in circumstances where the
parties’ relationship was, at b est, in a very precarious state, accords
overwhelmingly with common sense from the plaintiff’s perspective
and therefore with the probabilities.


[138] This conclusion is not gainsaid by any prior discussion or agreement
that the parties would “emigrate” after they had children. Although it is
perhaps unfortunate that the defendant was not cross -examined on
this issue, I do have both parties’ version s before me. The plaintiff’s
version is that “emigrate” in this context meant live abroad temporarily
rather than permanently and the defendant’s version was that it meant
to live abroad permanently. Both versions are logical and tenable. In
my view, it is not necessary to resolve this issue in order to decide this
case. Regardless of the content of the parties’ prior agreement , it is
clear on the facts that when the plaintiff left for the Netherlands on 17
January 2025 she did so on a trial basis for the reasons I have set out
above.

[139] Nor is the conclusion gainsaid by the fac t that the plaintiff did in fact
move to the Netherlands. That she did so does not itself erase the fact
that she did so on a trial basis.

[140] The Cambridge Dictionary defines “trial” as “ a test, usually over a
limited period of time, to discover how effective or suitable something
or someone is”.36


36 https://dictionary.cambridge.org/dictionary/english/trial

[141] This is precisely what the plaintiff did when she moved to the
Netherlands.

[142] Although the plaintiff did not have a clear and fixed time peri od for the
trial period in mind, I accept her evidence that it was for a relatively
short period measured in months. The trial was therefore for a limited
time period, albeit not a fixed one. As per the definition, the move to
the Netherlands nevertheless remains for a trial period in these
circumstances.

[143] The conclusion that I have reached is tha t the fact that the plaintiff
moved to the Netherlands for a trial period means that she did not do
so with the intention of settling there for an indefinite period in terms
section 1(2) of the Domicile Act. Expressed differently, she lacked the
required animus manendi to acquire a domicle of choice in the
Netherlands when she moved there (or at any time prior to the
institution of the divorce proceedings) . This is for the reasons set out
directly below.

[144] In the context of the precarious state of the parti es’ relationship, the
fact that it might end and that the plaintiff would return to South Africa
was unquestionably a “foreseeable future event on the occurrence of
which residence in that country would cease ” as per Eilon or, in the
language of Re Fuld (No 3), “ a clearly for eseen and reasonably
anticipated contingency” rather than a “ vague possibility”. On Pollak’s
test, as revised, this event was not “unexpected”.

[145] There was therefore , in the language of IDC v Bullock , a “sufficiently
substantial possibility of the contingency happening” to justify
regarding the plaintiff’s intention of returning to South Africa as a “real
determination to do so on the contingency occurring rather than a
vague hope or aspiration”.

[146] It also follows that the plaintiff had “ doubts” as per Eilon whether she
would remain in the Netherlands.

[147] On the facts of this case, my conclusion that the plaintiff lacked the
requisite animus manendi is not, as per IDC v Bullock, undermined by
the mere fact that the trial period was not fixed. In essence, this is
because the plaintiff nevert heless intended to return to South Africa if
the relationship ended regardless of the fact that the trial period was
an open-ended one.

[148] My conclusion that the plaintiff lacked the requisite animus manendi is
also supported by other facts in this case, such as the plaintiff’s very
close ties to her family in the Western Cape ; the fact that she did not
arrange her affairs on departure in a way that suggests that the move
to the Netherlands was a permanent or indefinite one; the plaintiff has
no other ties or connections to the Netherlands; and the fact that when
the relationship did end, the plaintiff wanted to return to South Africa
and did not do so because of the defendant’s refusal to permit their
daughter to return with the plaintiff.

[149] For the sake of completen ess, I reject the submission by the plaintiff’s
counsel that the plaintiff’s move to the Netherlands was affected by
compulsion and was effectively involuntary . This was never put to the
defendant and the facts do not support it.


[150] Although it is not necessary for me to decide this issue in light of the
conclusions I have reached , I would have rejected the plaintiff’s
evidence that she in any event intended to return to Cape Town after
two years even if the relationship had not ended. There is no
contemporaneous evidence to support this evidence. The plaintiff’s

evidence that this was to recreate for her daughter the happy two-year
period that she spent abroad as a 9 year old does not ring true given
that the parties’ daughter was just over one and a ha lf years only
when they moved to the Netherlands and would have little, if any,
memory of the experience.

[151] For these reasons, I find that defendant has not discharged the onus
of establishing that the plaintiff acquired a dom icile of choice in the
Netherlands when the divorce proceedings in this Court were
instituted.

[152] It follows that the plaintiff retained her domicile of origin in the Western
Cape, that this Court therefore has jurisdiction in the divorce
proceedings and that the special plea fails.


Costs


[153] The costs in this matter must follow the result.

[154] The parties both submitted that these costs should be awarded on
scale C. I agree.

[155] The plaintiff employed two counsel , including a senior counsel. The
defendant employed one counsel.

[156] This case was argued in very short order after the conclusion of the
evidence. The parties ’ heads of argument were , by agreement and
with my permission, submitted to me on the day of the argument. This
timetable was set in an attempt to accommodate the request from the
Dutch Court that a copy of this judgment be placed before them prior

to the hearing scheduled for 16 October 2025. When this case was
argued, I did not fully appreciate the complexity of the legal issues that
I have traversed in this judgment. Nor did counsel . These issues were
therefore not covered in either parties’ heads of argument. I am sure
that this was because the heads o f argument were prepared under
time pressure.

[157] Given the nature of the matter and the manner in which the case was
conducted and presented, my view is that it is fair to the parties that I
award the plaintiff the costs of her senior counsel only rather than the
costs of two counsel.

[158] The plaintiff’s counsel requested the matter to stand down at the
conclusion of the defendant’s evidence in chief on 18 September
2025. At the resumption of the hearing on 29 September 2025, the
plaintiff’s counsel c ross-examined the defendant in a very limited
manner. There was more than sufficient time on 18 September 2025
to complete that cross-examination. The hearing on 29 September
2025 was therefore not necessary. I therefore disallow the plaintiff all
her costs relating to the hearing on 29 September 2025.


Order


[159] In the circumstances, I make the following Order:

1. The defendant’s special plea in abatement is dismissed.
2. The defendant is ordered to pay the costs of the special plea on scale C,
including the costs of the plaintiff’s senior counsel only and excluding all
costs relating to the hearing on 29 September 2025.

3. The Office of the Family Advocate is directed to open a file and
commence an enquiry into the parental responsibi lities and rights in
respect of the parties’ minor child G[...], including regarding the
residence, care and contact arrangements which will be in her best
interests.
4. The parties are directed to cooperate with the enquiry of the Office of
the Family Advocate.


_____________________
MILLER AJ
Acting Judge of the High Court, Cape Town

APPEARANCES


Counsel for the Plaintiff: Adv T Dicker SC and Adv M
Bartman


Instructed by: Haude Attorneys Inc.



Counsel for the Defendant: Adv SM Stadler


Instructed by: Adams and Adams