South Africa Case Law

Central Authority of Republic of South Africa and Another v C.M (2023/077002)

Central Authority of Republic of South Africa and Another v C.M (2023/077002) [2025] ZAGPJHC 99 (10 February 2025)

Court

South Gauteng High Court, Johannesburg

Case number

2023/077002

Judge

L R Adams

The High Court dismissed a Hague Convention return application, finding the father had consented to removal and that returning the child to Israel posed a grave risk.

• International Child Abduction
• Hague Convention
• Habitual Residence
• Grave Risk Exception
• Settled Child Exception
• International-child-abduction

EW and Others, Ex parte

EW and Others, Ex parte [2025] ZAGPPHC 109; [2025] 2 All SA 191 (GP); 2025 (4) SA 211 (GP) (24 January 2025)

Court

North Gauteng High Court, Pretoria

Case number

094062/24

Judge

Neukircher

The court found that EW had not established domicile or habitual residence in South Africa as required by the Children’s Act for confirmation of a surrogacy agreement. The evidence showed that EW and WG currently reside and work in Switzerland, with only an intention to return to South Africa contingent on future employment and redundancy. The property in Pretoria was purchased for EW’s parents and not intended as the applicants’ residence. There was insufficient corroboration from family members and uncertainty regarding the applicants’ financial stability and living arrangements in South Af…

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• Surrogacy Agreement
• Children's Act
• Domicile Requirement
• Habitual Residence
• Best Interests Of Child

K.C v Central Authority for the Republic of South Africa and Another (2024/047309)

K.C v Central Authority for the Republic of South Africa and Another (2024/047309) [2024] ZAGPJHC 1010 (7 October 2024)

Court

South Gauteng High Court, Johannesburg

Case number

2024/047309

Judge

Mahalelo MB

The court considered the grounds for leave to appeal and the submissions of both parties. It applied the test under section 17(1) of the Superior Courts Act, which sets a high threshold for granting leave to appeal. The court found that the applicant had not demonstrated reasonable prospects of success on appeal, as the findings regarding habitual residence and the Article 13(b) defence were properly made in the original judgment. The court concluded that there was no compelling reason for the appeal to be heard and dismissed the application for leave to appeal.

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• International Child Abduction
• Hague Convention
• Habitual Residence
• Grave Risk Exception
• Leave To Appeal

Central Authority for the Republic of South Africa and Another v K.Z-S (47309/2024)

Central Authority for the Republic of South Africa and Another v K.Z-S (47309/2024) [2024] ZAGPJHC 890 (10 September 2024)

Court

South Gauteng High Court, Johannesburg

Case number

47309/2024

Judge

Mahalelo

The court found that Germany was the habitual residence of the minor children immediately prior to their retention in South Africa, based on their residence, school enrolment, and family connections in Munich. The respondent's retention of the children in South Africa after the agreed holiday period was unlawful and breached the second applicant's rights of custody. The respondent failed to establish, on a balance of probabilities, that returning the children to Germany would expose them to a grave risk of physical or psychological harm or place them in an intolerable situation as required by…

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• Hague Convention Child Abduction
• Habitual Residence
• Best Interests Of Child
• Grave Risk Exception
• Shared Custody
• Psychological Harm

V.L v M.A.V and Others (B 39322/2022)

V.L v M.A.V and Others (B 39322/2022) [2024] ZAGPPHC 861 (27 August 2024)

Court

North Gauteng High Court, Pretoria

Case number

B 39322/2022

Judge

Swanepoel

Hague Convention child-abduction application dismissed because the child was not habitually resident in Switzerland and the applicant had acquiesced.

• Hague Convention Child Abduction
• Habitual Residence
• Parental Rights And Responsibilities
• Custody Disputes
• International Child Abduction
• Court Discretion

Family Advocate Welkom v C.M.C and Another (2452/2024)

Family Advocate Welkom v C.M.C and Another (2452/2024) [2024] ZAFSHC 208 (28 June 2024)

Court

Free State High Court, Bloemfontein

Case number

2452/2024

Judge

Van Rhyn

High Court dismissed a Hague Convention return application after finding insufficient proof of wrongful retention, custody rights, and habitual residence in Cyprus.

• Hague Convention Child Abduction
• Habitual Residence
• Custody Rights
• Best Interests Of Child
• Onus Of Proof
• Urgent Interdict

C.A.R v Central Authority of The Republic of South Africa and Another (737/2023)

C.A.R v Central Authority of The Republic of South Africa and Another (737/2023) [2024] ZASCA 103; [2024] 3 All SA 653 (SCA); 2024 (6) SA 351 (SCA) (21 June 2024)

Court

Supreme Court of Appeal

Case number

737/2023

Judges

M Molemela, B C Mocumie, Goosen, Molefe, Mbhele

The Supreme Court of Appeal found that the mother failed to discharge the onus of proving, on a balance of probabilities, that the return of the minor child to Canada would expose him to grave physical or psychological harm or place him in an intolerable situation as required by article 13(b) of the Hague Convention. The evidence did not establish that the child's developmental delays or medical issues could not be adequately addressed in Canada, nor that protective measures and undertakings offered by the father would be insufficient. The court held that the best interests of the child, in t…

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• International Child Abduction
• Hague Convention
• Article 13b Defence
• Habitual Residence
• Protective Measures
• Parental Acquiescence

Ad Hoc Central Authority for the Republic of South Africa and Another v DM (18862/2023)

Ad Hoc Central Authority for the Republic of South Africa and Another v DM (18862/2023) [2024] ZAWCHC 170 (19 June 2024)

Court

Western Cape High Court, Cape Town

Case number

18862/2023

Judge

J Cloete

The applicants failed to discharge the onus of proving that the children were habitually resident in Germany immediately before their retention in South Africa. The evidence did not support a mutual intention to relocate permanently to Germany, and the circumstances indicated the move was temporary and prompted by the pandemic. The father's actions, such as hiding the children's passports, further undermined the claim of habitual residence. Consequently, the Hague Convention does not apply. Even if habitual residence had been established, the mother did not meet the high threshold required fo…

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• Child Abduction
• Habitual Residence
• Hague Convention
• Children's Best Interests
• Interim Contact
• Jurisdictional Facts

Central Authority, Republic Of South Africa and Another v Y.R

Central Authority, Republic Of South Africa and Another v Y.R [2023] ZAGPPHC 376; 061066/2022 (29 May 2023)

Court

North Gauteng High Court, Pretoria

Case number

061066/2022

Judge

Neukircher

The court found that CJ was habitually resident in Canada immediately prior to his retention in South Africa, based on the family's established life, citizenship, and parental intentions. CR did not acquiesce to CJ's retention, as evidenced by his prompt legal actions in both Canada and South Africa. The Article 12(2) defence was unavailable, as the application was launched within one year of retention. The court considered the Article 13(b) exception and concluded that returning CJ to Canada would expose him to an intolerable situation, primarily due to his medical history and developmental…

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• Hague Convention Child Abduction
• Habitual Residence
• Grave Risk Exception
• Intolerable Situation
• Acquiescence
• Best Interests Of Child

Central Authority for the Republic of South Africa and Another v SC (2022/0001)

Central Authority for the Republic of South Africa and Another v SC (2022/0001) [2022] ZAGPJHC 700 (15 September 2022)

Court

South Gauteng High Court, Johannesburg

Case number

2022/0001

Judge

Dippenaar

Hague Convention child-abduction application dismissed after the court found return to Texas would expose the children to an intolerable situation.

• Hague Convention Child Abduction
• Habitual Residence
• Grave Risk Exception
• Best Interests Of Child
• Maintenance
• Parental Contact