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  • F.M v L.B (4078/2026) [2026] ZAGPJHC 18 (19 …

F.M v L.B (4078/2026) [2026] ZAGPJHC 18 (19 January 2026)

80 Reportability
Family Law
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Brief Summary

Family Law — Relocation — Application for relocation of children to Zimbabwe refused due to best interests of children. FM, a Zimbabwean national, sought to relocate her three children from South Africa to Zimbabwe while she returned to Ireland. The court found that the children were settled in South Africa, had a loving relationship with their caregiver LB, and lacked meaningful connections to Zimbabwe. The court emphasized the importance of maintaining contact between FM and her children.

Comprehensive Summary

Summary of Judgment


Introduction


The proceedings concerned an urgent relocation application relating to three minor children, brought shortly before the applicant’s planned departure from South Africa. The applicant, FM (the children’s mother), sought leave to relocate the children to Zimbabwe on an immediate basis. The principal opposing party was LB, the children’s paternal aunt, with whom the children had been staying following the death of their father, TC.


Procedurally, the court granted FM leave to enrol the relocation application on 15 January 2026, on conditions including notice to LB and service on the Family Advocate. LB opposed the relief and a full set of affidavits was filed. The Family Advocate considered the founding papers and indicated that it had no objection to the relief sought by FM.


The court heard argument on 15 January 2026 and interviewed the three minor children in chambers on the morning of 16 January 2026. The parties were requested to submit draft orders addressing possible outcomes by 17 January 2026, after which the court reserved judgment and indicated it would be delivered on 19 January 2026. The dispute’s general subject matter was the children’s residence, care, contact, and proposed cross-border relocation, framed as a best-interests enquiry in circumstances of recent trauma and contested family dynamics.


Material Facts


It was common cause that FM is a Zimbabwean national and was previously married to TC, also a Zimbabwean national, who held South African permanent residence. The three children, LN (9), LA (5), and LC (12), were all born in South Africa, raised there, and were being educated there. The court recorded that none of the children had a South African birth certificate or other document evidencing a right to live in South Africa, and that FM’s ability to live in South Africa had been dependent on TC’s permanent residence status. At the time of the application, FM was in South Africa on a visitor’s visa.


The family lived in Pretoria and later moved to Bronkhorstspruit. In 2023 FM obtained employment in Ireland, with the stated intention of settling there permanently with TC and the children. FM travelled to Ireland to work while TC remained in South Africa with the children and pursued a visa for relocation; that visa application was declined on 22 January 2025 due to insufficient supporting information.


The court accepted, as context rather than a determinative factual finding, that TC came to suspect FM of an affair and that this contributed to conflict during 2025. The court treated the factual truth of any alleged affair as not relevant to the core issue it was required to decide.


A central undisputed factual event was that on 25 November 2025 TC died by suicide in circumstances witnessed by the children. The court described those circumstances as particularly distressing, including that TC instructed the children to walk toward nearby construction workers, told them FM was having an affair, and then set himself alight after dousing himself with petrol. LC suffered burns requiring hospitalisation; the court noted that her physical injuries had substantially healed.


Following TC’s death, the children went to stay with LB and her husband. It was common cause that FM provided consistent financial support through LB and attempted consistently to speak to the children. FM returned to South Africa on 7 January 2026 and sought to visit the children at LB’s home.


A materially disputed issue concerned whether LB prevented FM from seeing or speaking to the children. LB’s position in argument was that she refused access to her house (where the children were staying), and that the children did not wish to speak to FM. The court rejected that characterisation and was satisfied on the papers that LB believed FM had an affair, blamed FM for TC’s death, and encouraged the children to do the same. The court concluded that LB had deliberately kept the children from FM during the period after TC’s death, until a two-hour contact session ordered for 15 January 2026.


After ordering immediate contact and meeting the children in chambers, the court formed the view that, despite their trauma, all three children wanted to live with FM, and that there had been no justification for preventing FM from seeing them. The court considered it necessary that the children continue to have as much contact with FM as possible and that restraint against further alienation was required in the short term.


The key factual premise underlying the relocation relief sought was that FM wished the children to be moved to Zimbabwe, but the court found that FM had no intention of living with them there. Instead, FM wished to return to Ireland for her employment and leave the children in the care of Zimbabwean relatives. On the evidence, the court was not satisfied that the children had any meaningful connection with Zimbabwe or with those relatives. Conversely, the court found that the children were settled in South Africa, had been registered at a school by LB, and had a close, long-standing, loving relationship with LB, with whom they were comfortable.


Legal Issues


The central legal question was whether it was in the best interests of LN, LA, and LC to grant FM leave to relocate them to Zimbabwe immediately, in circumstances where FM did not propose to reside with them there and intended to return to employment in Ireland.


The dispute primarily concerned the application of legal standards to facts and a value judgment inherent in a best-interests determination, rather than the resolution of a narrow point of law. The court was required to weigh competing considerations, including stability of residence, continuity of care, the children’s relationships with FM and LB, the risk of alienation, the children’s present integration in South Africa, and the practical realities of FM’s employment and proposed living arrangements.


Ancillary issues included the appropriate interim orders regarding primary residence and care, the establishment and enforcement of contact between FM and the children (including when FM was outside South Africa), the need for an interdict against conduct likely to alienate the children from FM, oversight over any future removal of the children from their school or place of residence, and the commissioning of an investigative report by the Family Advocate to inform possible future relocation or residence arrangements.


Court’s Reasoning


The court’s reasoning proceeded from an assessment of the children’s best interests on the information available at the time of the hearing and judgment. The court accepted that if it had been asked to make a “straightforward choice” between continued residence with LB and relocation so that the children would reside with FM, it would have been inclined to authorise relocation to enable the children to live with their mother. However, the court emphasised that this was not the decision it was asked to make.


Instead, the court characterised the application as seeking a temporary relocation to Zimbabwe while FM returned to Ireland, in the hope of later obtaining permission for the children to relocate to Ireland. The court considered this framing to make the decision “more finely balanced”, because it involved relocating the children to a country where FM did not intend to live with them, placing them with relatives with whom, on the evidence, the children had no meaningful connection.


The court weighed, on the one hand, concerns that the children’s continued residence with LB carried a risk of further alienation from FM, particularly given LB’s attitude to FM and the earlier prevention of contact. The court also acknowledged an uncertainty relating to the children’s documentation and immigration status in South Africa. On the other hand, the court placed substantial weight on the children’s present settlement and stability in South Africa, their established schooling and familiarity with their surroundings, and the existence of a loving, long-standing relationship with LB, under whose care they were comfortable.


In balancing these considerations, the court concluded that, for the time being, it was in the children’s best interests to remain primarily in LB’s care. The court considered the risk of continued alienation to be real but assessed that LB’s attitude was “yet to mature” and that, once the immediate shock of TC’s death passed, LB’s animus towards FM would likely subside to the extent necessary for LB to refrain from conscious efforts to set the children against FM. The court further reasoned that the undocumented status did not place the children at immediate risk, particularly because the court intended to continue overseeing the residence and contact regime, and any attempt to remove the children from South Africa would require the court’s approval.


Having found that FM’s proposed relocation to Zimbabwe would not entail FM residing with the children there, and given the absence of evidence of a meaningful connection between the children and Zimbabwean relatives, the court was not satisfied that relocation to Zimbabwe was presently in the children’s best interests. The court therefore refused relocation but crafted a set of orders aimed at safeguarding FM’s parental responsibilities and rights, ensuring robust and practical unsupervised contact, restraining alienating conduct by LB, and facilitating an informed reassessment through a Family Advocate report regarding possible future relocation to Ireland, Zimbabwe, or elsewhere.


Outcome and Relief


The court refused the application for leave to relocate the children to Zimbabwe.


The court declared that parental rights and responsibilities in respect of the children under the Children’s Act 38 of 2005 vest in FM. Pending a report by the Family Advocate, the court directed that the children remain primarily resident with LB and under LB’s primary care at her current address. The Family Advocate was directed to deliver a report within three months addressing whether it was in the children’s best interests to relocate to the Republic of Ireland, Zimbabwe, or elsewhere, whether to reside with FM or otherwise.


The court granted FM full unsupervised contact with the children, structured to apply both when FM is outside South Africa (requiring LB to facilitate unsupervised video or telephone contact at least three times per week) and when FM is in South Africa (unsupervised contact at reasonable times and reasonable periods to be arranged with LB, including removal of the children from LB’s care on agreed terms). A mechanism was included for either party to approach the judge in chambers for directives in the event of disputes concerning contact implementation.


LB was interdicted and restrained from taking any step that may foreseeably result in the alienation of FM from the children, and was directed to take reasonably necessary steps to support and encourage a positive, loving relationship between FM and the children. The court also ordered that no person may seek permanently to remove the children from their current school or residence without the judge’s leave, and that the matter would remain with the same judge pending the Family Advocate’s report and a further order regulating residence, care, and contact.


A confidentiality order was made prohibiting any person from seeking out or disclosing the identities of the children or the parties to the application.


The judgment extract did not record any costs order.


Cases Cited


No reported cases were cited in the judgment extract provided.


Legislation Cited


Children’s Act 38 of 2005.


Rules of Court Cited


No rules of court were cited in the judgment extract provided.


Held


The court held that it was not presently in the children’s best interests to be relocated to Zimbabwe, principally because FM did not intend to live with them there and the evidence did not establish a meaningful connection between the children and Zimbabwe or FM’s relatives there. The court held that, for the time being, the children’s best interests were served by remaining in South Africa in LB’s primary care, subject to strong protections for FM’s ongoing relationship with the children through unsupervised contact and an interdict preventing alienation.


The court further held that an informed, future determination regarding potential relocation or reunification should be facilitated through an expedited Family Advocate report, while maintaining judicial oversight to prevent unilateral changes to the children’s residence or schooling and to manage implementation disputes.


LEGAL PRINCIPLES


The judgment applied the principle that decisions concerning residence, care, contact, and relocation of minor children require a best-interests assessment grounded in the children’s present circumstances and welfare, including stability, existing attachments, and the practicability of proposed care arrangements.


It further reflected that a relocation proposal is materially affected by whether the relocating parent proposes to reside with the children in the destination country and whether the children have a meaningful connection to that destination and proposed caregivers. A relocation plan that contemplates separation from the parent seeking relocation may weigh against relocation where it undermines stability and does not demonstrably advance the children’s welfare.


The judgment also applied the principle that where there is evidence of conduct tending toward parental alienation, courts may craft protective relief, including contact enforcement mechanisms and interdictory provisions, to preserve and support the children’s relationship with the affected parent, while maintaining interim stability pending professional investigation and reporting by the Family Advocate.

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has to leave South Africa by no later than 19 January 2026, in order to settle
the children in Zimbabwe before returning to her employment in the Republic
of Ireland.
2 I granted FM leave to enrol the relocation application before me on 15 January
2026. I required that LB be given at least forty-eight hours’ notice of the
application, and that the application be served on the Family Advocate. In due
course, LB opposed the application, and a full set of affidavits was filed. The
Family Advocate’s office studied the founding papers and informed me that it
had no objection to the relief FM sought.
3 I heard argument on 15 January 2026, and interviewed FM’s three minor
children in my chambers for about an hour on the morning of 16 January 2026.
I asked the parties to submit further draft orders dealing with a range of
possible outcomes by no later than noon on 17 January 2026. I then reserved
my decision and indicated to the parties that I would hand this judgment down
at around 8am on Monday 19 January 2026.
4 On the information currently available to me, I have come to the conclusion
that it is not presently in the children’s best interests to be relocated to
Zimbabwe. This is chiefly because FM has no intention of living with them
there. FM instead wishes to return to Ireland, where she is presently
employed, and to leave the children in the care of her Zimbabwean relatives.
On the evidence as it stands, I am not satisfied that the children have any
meaningful connection with Zimbabwe or with any of FM’s relatives there.
They were born, brought up, and are being educated in South Africa. Save for
the fact that there is some evidence that LB has sought to alienate the children

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from FM, the children have a healthy and loving relationship with LB, and are
settled and comfortable in her care. I intend to make orders to ensure that LB
refrains from any conduct that might further alienate FM from her children, and
I intend to enforce a regime of contact between FM and her children which LB
will be bound to respect. In addition, I do not wish to close the door to the
children eventually rejoining FM, whether in Ireland, Zimbabwe or elsewhere.
I will make orders that facilitate the exploration of those possibilities. I am,
however, convinced that, for the time being, it is in the children’s best interests
that they remain under LB’s care. In what follows, I give my reasons for
reaching these conclusions.
FM, TC and the children
5 FM is a Zimbabwean national who was until recently married to a man I will
call TC. FM and TC had three children: two boys, who I will call LN and LA
(aged 9 and 5), and a girl (aged 12) who I will call LC. All three of the children
were born in South Africa, but none of them has a South African birth
certificate, or any other document evidencing a right to live here. TC was a
Zimbabwean national with South African permanent resident status. As far as
I can tell, FM’s right to live in South Africa was dependent on TC’s permanent
residence status. FM is currently in South Africa on a visitor’s visa.
6 FM and TC brought their three children up in Pretoria until around three years
ago, when the family moved to Bronkhorstspruit. In 2023, TC was unemployed
(according to LB, he was involved in some sort of business, but it does not
seem to have produced a regular or dependable income for the family) , but
FM managed to find a job in Ireland. FM says that she hoped to settle there

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permanently with TC and the children. FM travelled to Ireland to carry out her
work, while TC applied for a visa to allow him and the children to join FM. On
22 January 2025, however, that application was declined, on the basis that
the supporting information TC had provided was insufficient.
7 At some point thereafter TC began to suspect that FM was having an affair
with one of her Irish colleagues. TC had apparently seen pictures on a social
media account which he took to be evidence of FM’s infidelity. In her founding
papers, FM says that the pictures were entirely innocent, and that she was not
having an affair. Still, TC and FM apparently argued about the pictures for
much of 2025. I do not know – and I do not regard it as particularly relevant –
whether FM was having an affair. But it is a fair inference from the papers that
TC felt resentful, powerless and lonely, left with the parties’ children in South
Africa while FM supported the family from Ireland.
8 These feelings ran deeper than anyone could have known. On 25 November
2025, TC committed suicide. The circumstances in which TC took his own life
are particularly distressing. Apparently deeply disturbed about what he
believed was FM’s infidelity, TC had driven himself, LN, LA and LC to Louis
Trichardt. The suggestion seems to have been that he was on his way to
Zimbabwe. Whatever his intentions, it appears the TC’s mental state broke
down completely on the journey. He pulled his car over. He gave each of the
children their birth certificates and told them to walk towards a group of
construction workers nearby. He also told them that FM was having an affair.
He then dowsed himself with petrol in front of the children and set himself
alight. He died from his injuries. LC ran toward TC and tried to extinguish the

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flames. She suffered burns requiring hospitalisation, but her physical injuries
appear now substantially to have healed.
9 Between her last telephone conversation with TC on 23 November 2025, and
learning of TC’s death at 1am on 27 November 2025, FM spent what must
have been many anxious hours trying to contact TC and the children.
Eventually, TC’s sister, LB, told FM that TC had died. After a short stay in
hospital, all three children went to stay with LB and her husband.
After TC’s suicide
10 It is not clear from the papers what FM’s movements were immediately after
TC’s death. It seems that she was unable immediately to leave Ireland,
whether because of her employment commitments or because of problems
with her Irish visa. I am unable to say whether FM returned to Zimbabwe or
how long she spent there if she did. It is common cause, however, that FM
kept open a consistent line of financial support to the children through LB, and
that she attempted consistently to speak to them. FM arrived back in South
Africa on 7 January 2026, and sought to visit the children at LB’s home.
11 Nevertheless, between TC’s death on 25 November 2025, and a two-hour
contact session that I ordered take place on 15 January 2026, LB steadfastly
refused to permit FM to talk to or visit her children. During argument, Mr.
Matshidzha, who appeared before me for LB, submitted that LB had not in fact
prevented FM from seeing her children, but had rather refused FM access to
LB’s house, where the children were staying. Since the children did not wish
to speak to FM, LB was, Mr. Matshidzha implied, able neither to encourage

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the children to come out of the house to talk to FM, nor to have a telephone or
video call with her.
12 I reject that submission. In the circumstances of this case, it was a particularly
cynical one to make. I am satisfied on the papers that LB believed that FM
was having an affair, that LB blamed FM for TC’s suicide, and that LB
encouraged the children to do the same. In her answering affidavit, LB
annexes what she says are intimate messages between FM and her Irish
colleague that prove the affair. She says FM’s lack of contact with the children
is her own fault and is due in large part to what LB calls FM’s “physical and
emotional detachment” from her family. Given the irrelevance of FM’s
involvement in any extramarital affair, I need not consider the authenticity of
the messages. However, the fact that LB chose to produce them, and the
terms in which LB chose to criticise FM in her answering affidavit, plainly
disclose LB’s true attitude. I have no doubt that LB has sought deliberately to
keep the children from FM.
13 Though LB’s conduct in this respect was wrong, I do not mean to criticise her
too harshly for it. Anger is the predictable product of grief, especially in a case
as tragic as this one. Nonetheless, Mr. Matshidzha’s attempt to paint LB as a
disinterested observer who was only carrying out the wishes of the children
was as unhelpful as it was unconvincing.
FM’s contact with the children
14 Once this picture had emerged fully from the papers and argument presented
to me, I made an order requiring that FM have immediate contact with the
children. I also ordered that the children be made available to meet with me in

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my chambers to discuss their relationship to FM and what they feel about the
prospect of relocating to Zimbabwe.
15 As far as contact is concerned, and notwithstanding the obvious and extreme
trauma they have endured, I am satisfied that all three of the children want to
live with their mother, even though LB has clearly told them that living with FM
will also mean living with a “stepfather” with whom they have been encouraged
to believe FM has been unfaithful. Nonetheless, that the children have not
been alienated from FM by the events of the past two months was clear both
from how they talked about FM in their meeting with me, and from the fact that
LA and LC sat in court huddled up to FM during the short hearing the followed
my meeting with them. There was never any justification for preventing FM
from seeing the children, and I am satisfied that it was never really their wish
to be separated from her.
16 It follows that all three children should continue to have as much contact with
FM as they possibly can. It also follows that relief aimed at restraining LB from
discouraging or interfering with that contact is necessary, at least in the short
term.
Relocation
17 However, the core dispute in this case is about whether the children should
immediately be relocated to Zimbabwe. Were I asked to make a
straightforward choice between directing that the children remain with LB or
directing that they relocate to live with FM, whether in Ireland or in Zimbabwe,
I would have had little hesitation in granting an order authorising FM to relocate
the children so that they can reside with her.

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18 But that is not the choice that faces me. The decision I am asked to make is
whether the children should be immediately if perhaps only temporarily
relocated to Zimbabwe while FM returns to Ireland with the hope of obtaining
the permission of the Irish government to relocate the children to live with her
there. Framed in that way, the decision is far more finely balanced. On the one
hand there remains a risk that LB will persist in her attempts to al ienate the
children from FM if they continue to reside with LB. There is also the fact that,
although they were born in South Africa, and have lived their whole lives here,
the children are not presently documented, and their immigration status
remains to be determined, given that TC was a South African permanent
resident and FM is not.
19 Nevertheless, the children are as a fact settled in South Africa. LB has
registered them at a school. LB has a close, long-standing and loving
relationship with them. They are in familiar surroundings and are clearly
comfortable where they are for now. They know that living with FM is not likely
to be practical in the immediate future.
20 On balance, I am satisfied that it is in the children’s best interests to remain
where they are for now. In the absence of residence with FM being a realistic
imminent prospect, the advantages to the children from continued residence
with LB outweigh the disadvantages I have set out. I think that there is a small
risk that LB will continue to alienate the children from FM. In my judgement,
however, LB’s attitude to FM is yet to mature. On the information I presently
have, it seems more probable than not that once the immediate shock of TC’s
death passes, LB’s animus towards FM will subside, at least to the extent

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necessary to enable LB to refrain from conscious efforts to set the children
against FM. Though the children remain undocumented in South Africa, that
status does not place them at any immediate risk, especially since I intend to
continue to oversee the residence and contact regime applicable to them. In
other words, any attempt to remove the children from South Africa will have to
be approved by me.
21 For all these reasons, leave to relocate the children to Zimbabwe will be
refused. However, I will make orders which will ensure FM’s continued contact
with the children, and will facilitate an investigation of the circumstances under
which FM will ultimately be able to reside with her children, wherever she may
choose permanently to settle.
Order
22 At the hearing of this matter on 16 January 2026, I asked the parties to try to
reach agreement on a draft order to be made in the event that I was not
inclined to order the relocation FM sought. On 17 January 2026, two draft
orders were uploaded to Caselines. One was clearly FM’s preferred draft. The
second draft, which appears to have been prepared by Mr. Matshidzha or his
attorney, was presented as an “order by agreement”. It turned out that the
“order by agreement” was not, in fact, agreed, as became clear from
correspondence forwarded to me during the early evening of 18 January 2026.
The order I shall make is not in any material sense agreed between the parties,
but it does contain elements of both parties’ proposals.
23 Accordingly –

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23.1 The application for leave to relocate LN, LA and LC to Zimbabwe is
refused.
23.2 It is declared that parental rights and responsibilities over and for LN,
LA, and LC (“the children”) under the Children’s Act 38 of 2005 vest
in FM.
23.3 It is directed that the children are to remain primarily resident with LB
and under LB’s primary care at her current residential address
pending the delivery of a report from the Family Advocate, setting out
whether, in the view of the Family Advocate, it is in the children’s best
interests to relocate to the Republic of Ireland, Zimbabwe or
elsewhere, whether to reside with FM or otherwise.
23.4 The Family Advocate is directed to deliver that report to the
chambers of Wilson J and to the parties, within three months of the
date of this order.
23.5 FM is to have the right to full unsupervised contact with the children.
23.5.1 When FM is not present in South Africa, that contact may
be by video or telephone call at any reasonable time that is
arranged with LB. LB is to take the necessary steps to
facilitate unsupervised contact between the children and
FM at least three times per week, including by ensuring that
the children have access the equipment necessary to make
unsupervised contact with FM.

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23.5.2 When FM is present in South Africa, her contact with the
children will be unsupervised for such reasonable periods
and at such reasonable dates and times as are arranged
with LB. FM will be entitled to remove the children from LB’s
care for such reasonable periods and on such reasonable
terms as FM and LB may agree.
23.5.3 In the event that any dispute arises as to the
implementation of the contact regime set out above, either
party may approach Wilson J in chambers for an
appropriate directive, having given reasonable notice to the
other.
23.6 LB is interdicted and restrained from taking any step whether herself
or through the agency of any other person which may foreseeably
result in the alienation of FM from the children. LB is directed to take
such steps as are reasonably necessary to support and encourage
a positive, loving relationship between FM and the children.
23.7 No person is to seek permanently to remove the children from their
current school or place of residence without the leave of Wilson J.
23.8 The matter is to remain with Wilson J until the Family Advocate has
issued their report, and a further order regulating the residence, care
and contact regime to be applicable to the children has been made.
23.9 No person is to seek out or disclose to any other person the identit ies
of the children or of the parties to this application. From the date of

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