THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Reportable / Not Reportable
Case no: 2026-105403
In the matter between:
S C Applicant / Respondent
and
L J H Respondent / Applicant
and
CENTRAL AUTHORITY FOR THE Second Respondent
REPUBLIC OF SOUTH AFRICA
(as delegated in terms of section 277 of act 38 of 2005)
In re: The unlawful abduction of minor children:
A J H
H C H
B R H
Coram: Honourable Justice HM Slingers
Heard: 21 July 2026
Delivered: 31 July 2026
ORDER
(i) the application for leave to appeal is dismissed with costs, which costs shall
be on scale C;
(ii) in the application brought in terms of s18(3), the following orders are made:
(a) in respect of the execution order, the applicant may take steps in
accordance with paragraph (vi) and (vii) of such order, to travel to
South Africa for the purpose of securing the children’s return to
Australia with him;
(b) the respondent is directed to ensure that the children have access to
their mobile phones at all times, and that they have the necessary sim
cards, data and / or access to WIFI in order for the applicant to have
unfettered and unmonitored contact with them on a Wednesday,
Friday and Sunday between 15h30 and 16h30 (South African Time);
and
(c) the costs of the section 18(3) application shall be borne by respondent,
SC on scale C.
JUDGMENT
Introduction
[1] On 29 June 2026 the court handed down judgment in the main application in
terms whereof the parties ’ minor children were to be returned to Australia.
On 01 July 2026 the first respondent launched an application for leave to
appeal and on 6 July 2026 the applicant launched an application in terms of
section 18(3) of the Superior Court’s Act, Act 10 of 2013 . The two
applications were heard together and stand to be determined.
[2] For ease of convenience, I will refer to the parties as they were cited in the
main application.
[3] Both Ms Jansen and Ms Alves made submiss ions to the court during the
application for leave to appeal and the section 18(3) application . The court is
indebted to them for their assistance and input.
[4] I deal firstly with the application for leave to appeal.
The test for granting leave to appeal
[5] Section 17(1)(a) of the Superior Courts Act provides that leave to appeal may
only be granted if the appeal would have reasonable prospects of success or
if there is some other compelling reason why leave t o appeal should be
granted.1 The application for l eave to appeal must show that there is a
measure of certainty that another court will differ from the judgment in respect
of which leave to appeal is being sought.2
1 Section 17(1)(a)
2 Mont Chevaux Trust v Goosen 2014 JDR 2325 (LCC)
[6] In Ramakatsa and Others v African National Congress and Another 3 the
Supreme Court of Appeal stated that the test of reasonable prospects of
success
‘postulates a dispassionate decision based on the facts and the law that a
court of appeal could reasonably arrive at a conclusion different to that of the
trial court. In other words, the appella nts ... need to convince this Court on
proper grounds that they have prospects of success on appeal. Those
prospects of success must not be remote, but there must exist a reasonable
chance of succeeding. A sound rational basis for the conclusion that there
are prosects of success must be shown to exist.’
[7] Furthermore, in determining whether or not there are other compelling
reasons why leave to appeal should be granted, the prospects of success
remain relevant in deciding whether to grant leave or to refus e same and
often are decisive.4
[8] The respondent seeks leave to appeal on both the prospects of success, and
any other compelling reason why leave to appeal should be granted.
The grounds of appeal
[9] The respondent cites 23 individual grounds and 2 overarching grounds of
appeal. As conceded by the respondent’s counsel during the hearing of the
applications, various grounds of appeal are repeated.
3 Ramakatsa and Others v African National Congress and Another (Case No. 724/2019) [2021]
ZASCA 31 (31 March 2021)
4 Minister of Justice and Constitutional Development and Others v Southern Africa Litigation Centre
and Others 2016 (3) SA 317 (SCA)
[10] The respondent grouped and addressed various grounds of appeal together
in her heads of argument . I mimic her approach in this judgment which will
serve to avoid addressing grounds of appeal that are repeated.
[11] I deal firstly with the overarching grounds of appeal which are that the court
erred in placing a decisive weight upon the objects of the Convention and the
principle that an abducting parent should not benefit from the consequences
of removal to the exclusion of a child- centred assessment of the grave risk
to, and the best interests of the children (‘the overarching grounds’).
[12] In determining an application for the return of children under the Convention,
the court is obliged to consider the object ives and the requirements thereof .
On the contrary, a failure to consider the object ives and the requirements of
the Convention would amount to a misdirection . Inherent in the objectives of
the Convention is the best interests of the children principle which the court
duly considered.
[13] The factual circumstances of and the role of the respondent in the abduction
of the minor children to South Africa are relevant factors and cannot be
ignored or wished away. However, these factors were not considered in
isolation nor were they afforded more relevance than the other factors
considered by the court.
[14] Although the respondent cited the overarching grounds in the application for
leave to appeal, they were not addressed in the written nor oral argument
presented. Therefore, the respondent’s reasoning underpinning these
grounds for leave to appeal are unknown. However, as self-standing grounds
of appeal, they have no merit.
[15] I de al now with the first nine (9) grounds of appeal , as grouped by the
respondent.
[16] The respondent incorrectly states that the whole of the judgement’s
reasoning in respect of AJH is contained in a single paragraph which rests on
the ‘best interests of the child principle.’ The paragraph identified by the
respondent sets out the conclusion pertaining to A JH.5 This is a
misunderstanding of the judgment . The judgement itself addresses inter alia
AJH’s relationship with his parents, his attitude towards both his parents, the
shared contact regime to which he was subjected, his social life and
schooling and took into consideration his views . All these factors were
relevant to and determinative of the best interests of the child principle.
[17] During the court’s engagement with A JH and from the papers itself, it was
evident that the views expressed by A JH revolved around the respondent’s
interests and not his . Therefore, while A JH’s views were considered, they
were not decisive.
[18] While AJH’s return was not made in terms of the Hague Convention , the
principles underpinning the Hague Convention remained a relevant factor and
were considered by the court.
[19] The respondent acknowledges that the judgement states that the Order by Mr
Justie Cohen was merely a factor. However, she goes on to argue that this
does not accord with the judgment itself . Furthermore, if the judgment only
dealt with the Order by Mr Justie Cohen as a factor, it would mean that the
return of A JH was entirely reliant on the best interests’ assessment which
was based on limited information before the court . As set out in paragraph s
17 and 18 above, sufficient information was placed before the court to make
this determination.
5 Paragraph 83 of the judgment.
[20] I turn now to grounds 10 to 18 of the application for leave to appeal. The
respondent argues that the court failed to apply the decision of the SCA in L
D v Central Authority (RSA) and Another 6 in terms of which the separation of
the children from their primary carer and the consequent break -up of the
family unit could itself constitute a grave risk of psychological harm or an
intolerable situation within the meaning of Article 13(b) and that the conduct
of the abducting parent is irrelevant to that inquiry as the focus should be on
the best interests of the children. The respondent’s reliance the case of LD is
misconstrued. The minor child in that matter had been residing in South
Africa for more than 3 years and was 4 years old when she was abducted to
South Africa. At the time of the hearing of the matter the minor child had living
as part of the family unit with her mother, stepfather and step sibling for more
than three years and the minor child’s return would have resulted in her being
separated from the only family unit she knew. The facts in the present matter
are clearly distinguishable from those in LD.
[21] During the argument, the respondent’s counsel conceded that as the
respondent remained adamant that she would not be returning to Australia
the grounds of appeal directed at the protective -measures inquiry were not
applicable. Consequently, I will not address these in this judgement.
[22] The respondent argues that the court erred in ‘treating the grave risk relied
upon as the product of impermissible self -help... in circumstances where ... a
defence under Article 13(b) may be established even in the absence of an
objective risk where the primary carer’s return would subject her to anxieties
of such intensity as to destabilise her parenting to the point that the children’s
6 LD v Central Authority (RSA) and Another [2022] ZASCA 6
situation becomes intolerable’ and in ignoring the judgment of Re S (A
Child)7.
[23] Therefore, the respondent relies on the case of In Re S (A Child) to argue
that a primary carer’s anxieties about return may found a defence in terms of
Article 13(b) where the effect of the anxieties would create an intolerable
situation on the child.
[24] In Re S (A Child) the parents’ marriage was characterised by domestic
violence and the mother (the abductee parent) placed medical and
psychological evidence before the court. Furthermore, a psychiatrist was
appointed during the Convention proceedings to conduct an evaluation of the
mother’s psychiatric and psychological condition at that time, the psychiatric
or psychological impact on the mother of a return to Australia and what, if any
protective measures would be required to safeguard the mother’s mental
health in the event of a return to Australia.
[25] The respondent admits that she did not produce objective evidence of her
mental state but argues that the respondent presented evidence that she was
assaulted in 2020 and that the respondent was being investigated for murder.
These factors were comprehensively dealt with in the judgment . On the
papers filed on record, the respondent did not establish a defence in terms of
Article 13(b) and did not establish the nature and existence of any anxieties
she suffers from nor how and/or if these would bear on her parental role to
such an extent that it would create an intolerable situation for the children .
The respondent told the court that she was fearful and that she was
assaulted in 2020 by the app licant. This was considered, as was the fact that
7 S (A Child) (Abduction: Rights of Custody) [2012] UKSC 10
the respondent and the applicant had a shared care regime for a period of 3
years and that in 2025 the respondent told the applicant that he was the best
father to their children . On the evidence presented, the 2020 assault and the
allegations of the respondent being investigated for murder failed to assist the
respondent to discharge her onus.
[26] The respondent avers that the court erred in failing to weigh the
vulnerabilities of H CH and B RH and their respecti ve diagnosis and the
heightened importance of stability and the presence of their primary
attachment figure in its assessment of grave risk and intolerability under
Article 13(b). This argument fails to consider that the children were subject to
a shared care regime in terms whereof they were regularly placed in the sole
care of the respondent in terms of the shared care regime.
[27] The argument is also premised incorrectly on A JH remaining in South Africa
while BRH and HCH are returned to Australia.
[28] In respect of the costs order , it is trite that costs are within the discretion of
the court. It has not been shown that the discretion was incorrectly exercised
nor established a basis on which that discretion should be interfered with.
[29] In respect of another compelling reason, the respondent states that the
appeal raises discrete questions of law. These questions are:
(i) the reconciliation of LD with NM and Koch on whether separation from
a primary carer who cannot safely return may itself constitute a grave
risk; and
(j) whether, and upon what enquiry, a court may order the summary
return of a child to whom the Hague Convention, by virtue of Article 4,
does not apply.
[30] Any legal question can only be answered within a factual matrix. In the
present matter the respondent has not presented any facts on which another
court would come to a different conclusion in respect of the return of all the
children to Australia or in finding that the respondent failed to establish a
defence in terms of Article 13(b).
[31] After duly considering the grounds of appeal against the test for granting
leave to appeal, I am not convinced that the respondent has shown any
prospects of success that another court would come to a different conclusion
on this aspect. Furthermore, the respondent has not shown that there are any
other compelling reasons why leave to appeal should be granted.
[32] Therefore, the application for leave to appeal is dismissed with costs, which
costs shall be on scale C.
The s18(3) application
[33] The applicant seeks an order:
(i) in terms of section 18(3) of the Superior Court’s Act 10 of 2013, that the
provisions of the order of the court, delivered on 29 June 2026, shall be
executed forthwith and pending the outcome of such applications for leave
to appeal/ petitions for leave to appeal and/or such appeal processes as
may take place before the South African courts in respect of the order of
29 June 2026 (‘the order’);
(ii) directing that, in respect of the execution of the order , the applicant
may take steps in accordance with paragraph (vi) and (vii) of such
order, to travel to South Africa for the purpose of securing the
children’s return to Australia with him;
(iii) pending the children’s return to Australia, the respondent is interdicted
and restrained from removing the minor children from the geographical
jurisdiction the Western Cape High Court for any reason without the
authorisation of this Court; and
(iv) the respondent is directed to ensure that the children have access to
their mobile phones at all times, and that they have the necessary,
sim-cards, data and / or access to WiFi in order for the applicant to
have unfettered and unmonitored contact with them on a Wednesday,
Friday and Sunday between 15h30 and 16h30 (South African time).
[34] During the hearing of the applications, the parties were invited to address the
court on whether it may still entertain the section 18(3) application in the
event that the application for leave to appeal be dismissed. The parties were
also afforded an opportunity to place an additional note on this issue.8
The jurisdictional issue
[35] In Ntlemeza v Helen Suzman Foundation and Another 9 the Supreme Court of
Appeal determined that a court could grant an execution order,
notwithstanding the dismissal of an application for leave to appeal . The
Supreme Court of Appeal found that the dismissal of an application for leave
to appeal prior to a decision on the execution application did not remove the
jurisdictional underpinning for an execution order.
[36] Therefore, notwithstanding the dismissal of the application for leave to
appeal, the s18(3) application remains to be determined by this court.
8 Section 18(3) of the Superior Court’s Act provides that:
9 2017 (5) SA 402 (SCA)
Urgency
[37] The respondent challenges the urgency of the application . The s18(3)
application pertains to the implementation of a Hague Convention return
order of three minor children. It is common cause that matters of these nature
must be determined expeditiously. It is trite that any matter involving children
are also inherently urgent 10. These factors, in my view, render the application
inherently urgent.
Section 18(3)
[38] Section 18(3) provides that:
‘A court may only order otherwise as contemplated in subsection (1) or (2), if
the party who applied to the court to order otherwi se, in addition proves on a
balance of probabilities that he or she will suffer irreparable harm if the court
does not so order and that the other party will not suffer irreparable harm if
the court so orders.’
[39] In order to obtain the relief he seeks, the applicant would have to establish ,
on a balance of probabilities , the existence of exceptional circumstances that
warrant t he granting of the execution order ; that he will suffer irreparable
harm if the execution order is not granted and that the respondent will not
suffer irreparable harm should the execution order be granted.
The requirements for section 18(3)
[40] While the existence of exceptional circumstances is a jurisdictional
requirement for the exercise of a court’s discretion in terms of section 18, the
10 Although the degrees of urgency may differ from case to case.
requirements for the relief are not separate, distinct, and self -standing
requirements that should be approached in a compartmentalised fashion.11
[41] It is trite that the inquiry into whether or not exceptional circumstances exist is
a factual and case specific inquiry.12
[42] It is the applicant’s case that the requirement of exceptional circumstances
are met as a result of the fact that the children have a very small window
within which they may return to Australia and within which they are able to
fully resume their lives as it were before they were removed from Australia .
Given the short period they have been in South Africa, the children are at this
stage, able to return to their schools and grades with their classmates and
resume friendships and relationships which have not at this stage been too
affected by the children’s removal to South Africa.
[43] Furthermore, HCH will be able to resume / return to his known and familiar
therapist. The court was also informed that HCH has also been approved for
approximately R191 111,45 National Disability Insurance Scheme Funding
for 12 months from 16 June 2026 to 15 June 2027. Thus, a delayed return to
Australia may result in HCH forfeiting this benefit.
[44] The applicant readily conceded that he will not suffer irreparable harm.
However, as correctly highlighted by the applicant this matter concerns the
children. Therefore, the court should consider whether they will suffer
irreparable harm if the execution order is not granted.
[45] The Convention records that it is not in children’s best interests to be
wrongfully removed from their country of habitual residence and that it is in
their best interests to be returned without undue delay. This would
11 Tyte Security Services CC v Western Cape Provincial Government and Others 2024 (6) SA 175
(SCA)
12 Norwich Union Life Insurance Society v Dobbs 1912 AD 395 as quoted in Tyte
undoubtedly apply to the return of B RH and HCC. Similarly, the overarching
principle applicable to the Convention would also apply to A JH, even though
his return is not ordered in terms of the Convention.
[46] It is noteworthy that there has been a change in the children’s attitude
towards returning to Australia after the Convention judgement was handed
down. Prior to judgment , although the children expressed not wanting to be
separated from the respondent, none of them objected to returning to
Australia. Post the judgement, the children have become adamant and
steadfast that they will not return to Australia . AJH has gone so far as to
depose to an affidavit wherein states that he will not return to Australia
notwithstanding any court order directing him to do so . It is noteworthy that
Esna Bruwer (‘Bruwer’) in her addendum to the Voice of the Child Report
(‘addendum’) records that AJH speaks to his father 3 times a week . There
does not seem to be a breakdown in his relationship with his father
notwithstanding a hardening of his approach not to return to Australia . This is
consistent with Bruwer’s recordal in her addendum recorded that A JH’s
refusal to remain in South Africa should be seen as his wish not to be
separated from his mother, rather than as a rejection of his father.
[47] In respect of H CH, Bruwer reported that he believes that they (the children)
won’t be able to talk with the respondent should they be returned to Australia
as the applicant will restrict their mother’s access to them. This concern is not
borne out by the record.
[48] Bruwer summarises the position in respect of HCH as:
‘HCH’s account remains broadly consistent with the themes recorded in the
Report – Loyalty toward his father alongside a clear preference to remain with
his mother – but reflects, since the Report, a more explicit and firmly stated
position regarding what he believes will occur if the children are returned,
particularly his fear of losing contact with his mother, and a clear statement o f
intended non-compliance with a return order.’
[49] Thus, post judgment the children have become more intent on not returning
to Australia, notwithstanding any court order. The longer they remain in South
Africa, the more entrenched this behaviour and intent would become. It is
apparent from both A JH and HCH that they do not consider any court order
binding on them. The children’s loyalty to the respondent may intensify and
transform into hostility towards any further court processes, and to the
applicant as a result thereof.
[50] The opportunity of the applicant and the children restoring their relationship
diminishes with each day they remain in South Africa . This cannot be ignored
when considering the irreparable harm, they are likely to suffer.
[51] The court was informed that the respondent obtained an ex-parte domestic
violence interdict in very sweeping terms on 24 June 2024 against the
respondent. The court was informed that she obtained this order because she
believed the applicant would be travelling to South Africa to fetch the children.
The sweeping terms of the domestic violence interdict are such that it would,
as it stands, prevent the applicant from being able to fetch the minor children
should same be necessary. This does raise concern, especially when viewed
with H CH’s views that he believed his father would come and fetch the
children, should the court order their return but that he would not comply if his
father arrived to collect him. Similarly, AJH’s states that he does not intend to
obey any court order to return to Australia.
[52] The respondent obtained the domestic violence interdict after the hearing of
the main application on 15 June 2026 . The respondent had to have been
alive to the possibility that the court may order the return of the children . The
timing of the respondent obtaining the family violence interdict and her
reasons for doing so leads to the conclusion that it was done to prevent the
applicant from fetching the children in South Africa.13
[53] It is apparent from the respondent’s affidavit that she has been discussing the
merits of these applications with A JH and that she has had insight into his
discussions with both Ms Jansen and Ms Bruwer. This is concerning,
especially as A JH has previously recorded that he feels as if he is in the
middle of his parents and that he does not want to choose between them and
that he has taken on the role of the respondent’s protector.
[54] AJH presented an affidavit to the court wherein he again expressed his
position that he will not be returning to Australia. The applicant (LJH),
argues that the tone and contents of this affidavit does not reflect A JH’s voice
but that of the respondent, who in turn denies assisting A JH with the content
of his affidavit. She does admit assisting with the formatting of the affidavit . I
make no determination in respect of whether or not the contents of A JH’s
affidavit reflect his or the respondent’s voice. However, the respondent was
aware that she had previously been accused of unduly influencing the
children. Her actions do nothing to dispel these concerns.
[55] In opposing the section 18(3) application, the respondent states that the
children had all settled in and are stable in South Africa . However, she also
states that A JH speaks daily with his girlfriend in Australia and that he
remains in contact with his friends in Australia with whom he regularly games.
These are not actions of someone settled in South Africa.
13 At the time of coming to South Africa the respondent had no similar protection order in Australia
[56] It is noted that the respondent does not aver that she will suffer irreparable
harm if the execution order is granted.
[57] The respondent has provided input from their schools in respect of A JH and
HCH.
[58] In respect of AJH, it reports that he is progressing well and that he has settled
in. However, during the main application A JH reported that he was
dissatisfied with being placed in a grade lower than he would have been in
Australia and that he would have preferred to be homeschooled . No
explanation has been placed before the court for the difference in A JH’s
attitude nor what brought it about in the period between handing do wn the
convention judgment and the application for leave to appeal.
[59] In respect of H CH, the school reports that he has integrated into the school
environment and adapted to both the school and the community . This is not
consistent with Jansen’s report filed in the main application in which H CH is
reported as stating that he is ‘pretty sure’ that he is failing all his exams
because he does not understand a single thing . He also expressed the belie f
to Jansen that he still thought they would only be staying in South Africa for 3
months or less.
[60] The respondent’s application for leave to appeal was dismissed as there
were no reasonable prospects of success.
[61] After considering the facts and circumstances, I am satisfied that the
cumulative effect of the poor merits of the application for leave to appeal, the
change in the children’s attitude to returning to Australia, the small window of
opportunity to integrate into their lives pre -abduction and the apparent
motivation of the respondent in obtaining the domestic violence interdict
constitute exceptional circumstances. Save for the interdictory relief sought,
the applicant has made out a case for the relief he seeks . Consequently, I
make the following orders:
a. the application for leave to appeal is dismissed with costs, which costs
shall be on scale C;
b. in the application brought in terms of s18(3), the following orders are
made:
(i) in respect of the execution order, the applicant may take steps
in accordance with paragraph (vi) and (vii) of such order, to
travel to South Africa for the purpose of securing the children’s
return to Australia with him;
(ii) the respondent is directed to ensure that the children have
access to their mobile phones at all times, and that they have
the necessary sim cards, data and / or access to WIFI in order
for the applicant to have unfettered and unmonitored contact
with them on a Wednesday, Friday and Sunday between 15h30
and 16h30 (South African Time); and
(iii) the costs of the section 18(3) application shall be borne by the
respondent, SC on scale C.
____________________
H M Slingers
Judge of the High Court
31 July 2026
Appearances
For Appellant: Adv. Alma De Wet
Instructed by: Maurice Phillips Wisenberg Inc.
For the First Respondent: Adv. Janet McCurdie SC
Instructed by: Clarks Attorneys / Catto Neething Wiid Inc.
For the Second Respondent: Adv. Reeva Alves / Adv. FC Sader
For the Children: Adv. Janine Janssen