South Africa Case Law

H.G.W v M.W (nee B[...]) (RCC/MOS:84/23; A207/2024)

H.G.W v M.W (nee B[...]) (RCC/MOS:84/23; A207/2024) [2025] ZAWCHC 140 (26 March 2025)

Court

Western Cape High Court, Cape Town

Case number

RCC/MOS:84/23; A207/2024

Judges

P. S. Van Zyl, J. Lekhuleni

The appeal was upheld because the Mossel Bay Regional Court lacked jurisdiction to adjudicate the divorce action. The respondent failed to plead or prove that she or the appellant was domiciled or ordinarily resident within the court's jurisdiction at the time of institution of the action. The regional court erred by inferring jurisdiction from insufficient pleadings and by considering material not forming part of the pleadings or evidence, such as the Family Advocate's report. Jurisdiction in divorce actions must be established by clear allegations and supporting evidence in the pleadings, a…

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• Divorce Jurisdiction
• Domicile
• Special Plea
• Pleadings
• Divorce Act
• Magistrates Court Jurisdiction

Gross v D.M (2021/43212)

Gross v D.M (2021/43212) [2024] ZAGPJHC 767; 2025 (2) SA 172 (GJ) (6 August 2024)

Court

South Gauteng High Court, Johannesburg

Case number

2021/43212

Judge

Windell

High Court dismissed a peregrinus jurisdiction exception in a divorce action, holding the pleaded constitutional challenge and common-law development claim raised a triable issue.

• Divorce Jurisdiction
• Peregrinus Attachment
• Constitutional Invalidity
• Development Of Common Law
• Accrual Claim
• Access To Court

I.N.P v N.P (9117/2023)

I.N.P v N.P (9117/2023) [2023] ZAWCHC 210 (28 July 2023)

Court

Western Cape High Court, Cape Town

Case number

9117/2023

Judge

Van Zyl

The court found that the respondent is permanently resident in Portugal and is a foreign peregrinus. The funds and property in question are located outside South Africa, and the acts sought to be interdicted would occur in foreign jurisdictions. The court held that it does not have jurisdiction to grant interdictory relief against a respondent who is neither resident nor domiciled within its jurisdiction, and where the subject matter of the relief is situated abroad. The respondent's submission to jurisdiction in the divorce action does not extend to separate proceedings for interdicts instit…

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• Divorce Jurisdiction
• Interdict
• Peregrinus
• Superior Courts Act
• Divorce Act

O.B v L.B.D.S (20540/2018)

O.B v L.B.D.S (20540/2018) [2021] ZAWCHC 43; [2021] 2 All SA 527 (WCC); 2021 (6) SA 215 (WCC) (9 March 2021)

Court

Western Cape High Court, Cape Town

Case number

20540/2018

Judges

Saldanha, Henney, Cloete

The majority held that the appellant established, on a balance of probabilities, that she was domiciled within the Western Cape High Court's jurisdiction at the time the divorce summons was issued. The court interpreted section 1(2) of the Divorce Act to mean that the relevant date for jurisdiction is the date of issue, not service. The appellant's evidence showed she intended to settle in Caledon indefinitely, had made arrangements to live and work there, and only decided to return to Russia after the summons was issued. The court adopted a flexible approach to the domicile requirement, cons…

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• Divorce Jurisdiction
• Domicile Of Choice
• Civil Union Act
• Deeming Provision
• Forum Shopping

T.M.S.M v P.T.M (35304/2015)

T.M.S.M v P.T.M (35304/2015) [2018] ZAGPPHC 538 (25 January 2018)

Court

North Gauteng High Court, Pretoria

Case number

35304/2015

Judge

Tlhapi

The court held the plaintiff had not proved domicile of choice in Pretoria when divorce proceedings were instituted, so jurisdiction was lacking and the action was dismissed.

• Divorce Jurisdiction
• Domicile Of Choice
• Divorce Act Section 2
• Domicile Act Section 6a
• Divorce-jurisdiction
• Domicile-of-choice

V v V (5881/17)

V v V (5881/17) [2017] ZAGPPHC 324 (6 July 2017)

Court

North Gauteng High Court, Pretoria

Case number

5881/17

Judge

P M Mabuse

The court found that both parties are South African citizens with their domicile of origin in South Africa. The respondent failed to prove that either party had abandoned their South African domicile and acquired a domicile of choice in Dubai. The evidence showed that their residence in Dubai was for work purposes and contingent on employment, without permanent residency or intention to settle there indefinitely. The court held that mere residence abroad does not equate to a change of domicile, and the respondent did not discharge the burden of proving such a change. Accordingly, the South Af…

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• Divorce Jurisdiction
• Domicile Of Choice
• Interdict
• Divorce Act
• Domicile Act

M v M (A216/2014)

M v M (A216/2014) [2015] ZAFSHC 36 (5 March 2015)

Court

Free State High Court, Bloemfontein

Case number

A216/2014

Judges

Mocumie, Lekale

The regional magistrate erred in concluding that the regional court lacked jurisdiction to dissolve a marriage entered into in Lesotho where both parties were domiciled and resident in Bloemfontein, South Africa. South African law recognises foreign marriages as valid if there were no legal impediments at the time of celebration. Section 28(1A) read with section 29(1B) of the Magistrates’ Courts Act and section 2(1) of the Divorce Act confer jurisdiction on the regional court where either party is domiciled or ordinarily resident in its area and has been ordinarily resident in South Africa fo…

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• Divorce Jurisdiction
• Domicile And Residence
• Magistrates Courts Act
• Foreign Marriage Recognition

H.S.W v H.S.W (1694/08)

H.S.W v H.S.W (1694/08) [2009] ZAWCHC 159 (14 September 2009)

Court

Western Cape High Court, Cape Town

Case number

1694/08

Judge

Davis

The High Court upheld a special plea in a divorce matter, finding the plaintiff had not shown the required ordinary residence in Cape Town for jurisdiction.

• Divorce Jurisdiction
• Ordinary Residence
• Forum Non Conveniens
• Divorce-jurisdiction
• Ordinary-residence
• Forum-non-conveniens

S-W v S-W (14211/2008)

S-W v S-W (14211/2008) [2008] ZAWCHC 324 (1 December 2008)

Court

Western Cape High Court, Cape Town

Case number

14211/2008

Judge

Ndita

The court dismissed a jurisdictional challenge and held that the applicant had been ordinarily resident in Cape Town for more than a year under the Divorce Act.

• Divorce Jurisdiction
• Ordinary Residence
• Rule 43 Applications
• Private International Law
• Divorce-jurisdiction
• Ordinary-residence