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2026
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[2026] ZAGPJHC 394
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C.A.P. v P.M.F. (2026/071915) [2026] ZAGPJHC 394 (14 April 2026)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA,
GAUTENG DIVISION,
JOHANNESBURG
Case
No: 2026/071915
(1)
REPORTABLE:
NO
(2)
OF
INTEREST TO OTHER JUDGES: NO
(3)
REVISED
In the matter between:
C
[A…]
[P…]
Applicant
and
P
[M…]
[F…]
Respondent
JUDGMENT
Mia, J
Introduction
[1]
The background facts are necessary before the law can be applied to
the facts.
Facts
[2]
The applicant is the father of the minor child. The respondent is the
mother of the minor child. The parties are married
to each other and
resided in Kenya initially where the applicant was working. When the
parties became estranged in 2021, the minor
child remained with the
applicant and the respondent returned to South Africa. The parties
had planned to move to South Africa
together, however in view of the
deterioration in their relationship, the applicant moved to Zimbabwe,
his country of origin, with
the minor child. In Zimbabwe the
applicant was supported by his mother with the care of the minor
child.
[3]
During this time, the respondent exercised contact telephonically.
She pursued work opportunities in Asia which included
Vietnam and
Malaysia. She remained in Asia from 2023 until 2026 when she returned
to South Africa. The applicant during this period
travelled to South
Africa to ensure the child received necessary medical treatment. The
minor child is enrolled in the French international
School in
Zimbabwe. Whilst receiving in South Africa and during the period of
recuperation she continued to complete homework assignments
which
were returned to the school virtually.
[4]
In January 2026, the respondent contacted the applicant and requested
to see the child whilst she was in South Africa.
The applicant was in
Zimbabwe attending to his ailing mother. The minor child was in the
care of the helper, who is alleged to
be the applicant’s
girlfriend. The respondent was given access to the home. The
respondent informed the applicant that the
minor child complained
that she was abused by the applicant’s girlfriend and his
mother. The applicant disputes this. It
is noted that this was not
communicated to the respondent during the virtual contact over the
years. This was also not communicated
to the applicant.
[5]
The respondent returned to Limpopo to her parental home and took the
minor child with her as she did not have accommodation
in
Johannesburg. The removal was with the applicant’s consent to
enable the minor child to have access to the respondent.
The
applicant called for the return of the child shortly thereafter to
allow her to complete her schooling at the French International
School, in Zimbabwe. The respondent refused to return the minor child
citing the alleged abuse of the minor child by the paternal
grandmother and the applicant’s girlfriend. The respondent
wishes to retain the child in Limpopo and contends that since
she is
living with the child at her mother home in Limpopo this court does
not have jurisdiction. This despite the divorce having
been issued
out of this court. The applicant wishes to enrol the minor child at
the French International School in Sandton, despite
not having
accommodation or verifiable employment.
[6]
The child is entitled to have her best interests inform the decision
regarding education and relocation informed by section
28(2) of the
Constitution, which provides that:
“
A child’s
best interests are of paramount importance in every matter concerning
the child.”
This principle is
decisive, not merely one factor among many. It overrides procedural,
jurisdictional, and parental disputes where
necessary.
[7]
The enquiry
is further defined by section 7 of the Children’s Act 38 of
2005. This standard first espoused in
McCall
v McCall
[1]
and expanded in S v M (Centre for Child Law as Amicus Curiae).
[2]
These authorities require the enquiry encompass a holistic, child
centred evaluation.
[3]
This must
further ensure that the parenting prioritises the child’s
stability, emotional security, educational continuity
and their
developmental needs.
[8]
The minor child, approximately 10 years old, has been in the primary
care of the applicant for several years. He has been
the long-term
primary caregiver and applicant attended to the child’s daily
needs and enrolled the child at the French International
School in
Harare. The applicant supported the child’s instruction and
ensured the child received treatment in 2025. He ensured
that she was
medically cleared to resume schooling in March 2026. This
demonstrates structured support and active involvement.
[9]
The change in the child’s circumstances occurred after the
respondent returned to South Africa and removed the child
to Limpopo
in March 2026. The child has not returned to school. The respondent
does not show that the child has kept up with her
curriculum whilst
in Limpopo and sought to remove the child again to enrol her at the
French International School in Sandton, introducing
a further sudden
change in the child’s life.
[10]
The matter was referred to the Office of the Family Advocate to
investigate limited aspects and to revert with its findings.
Having
regard to the findings, there appears to be no substantial evidence
to support the respondent’s suggestion of abuse
by the paternal
grandmother or the applicant’s girlfriend. The Family Advocate
also expressed concern with the sudden change
in schooling.
[11]
The child’s established living arrangement would be disrupted
if she remained in Limpopo. It will not afford continuity
of care by
the applicant who has been the primary caregiver for a considerable
period. In contrast, the minor child’s removal
to Limpopo was
unilateral, recent and disruptive as the child stopped completing her
work for virtual submission.
[12]
In addition to continuity and stability of care which the applicant
has furnished, in an established relationship, the
educational
continuity is important. This is a critical factor in ensuring the
best interests of the minor child apart from her
physical and
emotional well-being. The child is enrolled in a specialised school
which requires physical attendance to ensure proper
academic
progression. The child’s right to schooling is immediately
realisable and cannot be subject to limitation in the
current
circumstances. The deprivation of education is ongoing and cumulative
and will be irreparable unless there is a return
to stability.
[13]
The recent relocation to Limpopo cannot determine the best interests
of the child. The tactical relocation does not defeat
the best
interests of the child or oust this court’s jurisdiction. Where
the relocation appears to be calculated to achieve
a self-created
fait accomplis
, i.e. an accomplished fact, the conduct does
not support a conclusion that the decision to relocate informed the
child’s
best interests and that it was given paramount
consideration.
[14]
Even if
there were any residual doubt regarding territorial jurisdiction or
the degree of urgency, neither contention can prevail
in
circumstances where the welfare of a minor child is directly
implicated. This Court is seized with jurisdiction as upper guardian
of all minor children, reinforced by the pending divorce proceedings
before it and the substantial connection between the child,
the
parties, and this forum; such jurisdiction, once established, is not
defeated by a recent, unilateral relocation. In matters
concerning
children, jurisdiction is determined with due regard to their best
interests rather than rigid territorial considerations,
[4]
and persists notwithstanding subsequent events. Likewise, urgency is
not to be assessed through the ordinary commercial lens: where
a
child’s right to basic education and developmental stability is
being impaired on a continuing basis, the harm is inherently
ongoing,
cumulative, and not capable of adequate redress in due course.
[5]
As emphasised in
S
v M
[6]
and subsequent authority, courts are enjoined to act without delay
where the child’s interests so require. In these circumstances,
both jurisdiction and urgency are properly established, and any
technical objection must yield to the paramountcy of the child’s
best interests.
[15]
In circumstances where the child is recovering from a significant
medical intervention, it is necessary to afford her
routine,
structure and peer interaction, in addition to parental support. A
disruption in her routine places her emotional and
academic
development at risk. The recommendation that the child return to
Zimbabwe to complete her schooling give weight to ensuring
stability
and removing uncertainty in her environment. The Family Advocate and
family counsellor’s recommendation has not
been displaced by
any contrary expert view.
[16]
The paramountcy of the child’s best interests compels an
outcome that restores stability, continuity, and access
to education.
The evidence demonstrates that the child’s established
caregiving arrangement and schooling have been disrupted
by a recent
unilateral relocation, resulting in ongoing deprivation of structured
education. The Family Advocate confirms that
the interruption of
schooling is contrary to the child’s welfare. In these
circumstances, the only order consistent with
the child’s best
interests is the immediate restoration of the status quo ante.
[17]
The above requires an immediate return to the applicant’s
primary care and resumption of schooling. The applicant
has indicated
a willingness to consider a change in schooling to enroll the minor
child at the French International School in Sandton.
The child shall
remain with the applicant pending a change in circumstances which
supports a different determination.
[18]
For the above reasons the following order was granted on 10 April
2026:
17.1
The minor child shall be returned to the applicant’s care and
residence immediately
pending any further investigation by the Office
of the Family Advocate. The parties may approach the court on
supplemented papers.
17.2
The applicant shall ensure that the child has access to the
respondent specifically during
the April - May 2026 school holiday.
17.3
In addition, the above access in paragraph 2 above the respondent
shall exercise reasonable
access to the minor child as agreed between
the parties which shall include regular virtual contact as agreed and
considering the
child’s educational commitments.
17.4
The costs herein to stand over for later determination during the
divorce proceedings.
S C MIA
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION,
JOHANNESBURG
Appearances:
On behalf of the
applicant:
MB Mhango
Instructed
by:
Bazuka and Company Inc
[email protected]
On behalf of the
respondent:
A Prinsloo
Instructed
by:
Martin Vermaak Attorneys Inc.
[email protected]
Date of
hearing:
10 April 2026
Date of
judgment:
14 April 2026
[1]
1994
(3) SA 201 (C).
[2]
(CCT
53/06) [2007] ZACC 18; 2008 (3) SA 232 (CC); 2007 (12) BCLR 1312
(CC); 2007 (2) SACR 539 (CC).
[3]
Id para [122].
[4]
In
S
v M
op cit n 2 at para [122], the court emphasises that “the
duties of the courts are to be imbued with a child centred approach,
and the courts must as a rule, judiciously consider a child’s
interests.”
[5]
F
v F
(9985/2022)
[2022] ZAGPJHC 202.
[6]
S
v M
op
cit n 2.