Wheeler v Egglestone (HC 543 of 2016; HH 99 of 2016) [2016] ZWHHC 99 (29 January 2016)

Wheeler v Egglestone (HC 543 of 2016; HH 99 of 2016) [2016] ZWHHC 99 (29 January 2016)

The South African judgment cannot be enforced directly in Zimbabwe without compliance with internal processes or the Convention. The applicant is entitled to retain custody of the minor child pending proper application for return or enforcement, but the respondent must be granted access rights. The relief sought in the draft order is premature and contrary to the Convention's spirit.

Citation
[2016] ZWHHC 99
Parties
Applicant: Cherise Wheeler; Respondent: Timothy Egglestone
Court
Harare High Court
Jurisdiction
Zimbabwe
Judgment Date
29 January 2016
Case Number
HC 543 of 2016 ; HH 99 of 2016
Procedural Posture
Urgent Chamber Application / Ruling on Interim Interdict
Outcome
Interim interdict partially granted
Legal Topics
Child Abduction, Enforcement of Foreign Judgments, Custody, International Conventions
Source Language
English
Family Law Private International Law Child Abduction Enforcement of Foreign Judgments Custody International Conventions

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Parties

Cherise Wheeler

Applicant

Timothy Egglestone

Respondent

Procedural Posture

Urgent Chamber Application / Ruling on Interim Interdict

Legal Issues

  1. 1 Whether the South African High Court order is enforceable in Zimbabwe without compliance with internal processes
  2. 2 Whether the applicant is entitled to an interim interdict restraining removal of the minor child from Zimbabwe
  3. 3 Whether the custody of the minor child should remain with the applicant pending proper application for return or enforcement

Ratio Decidendi

The South African judgment cannot be enforced directly in Zimbabwe without compliance with internal processes or the Convention. The applicant is entitled to retain custody of the minor child pending proper application for return or enforcement, but the respondent must be granted access rights. The relief sought in the draft order is premature and contrary to the Convention's spirit.

Court Disposition

Interim interdict partially granted

Orders

  • Applicant shall retain custody of the minor child pending determination of an application for return or registration/enforcement of the South African judgment in terms of the Convention or law.
  • Respondent shall enjoy rights of access to the minor child whenever he visits Zimbabwe as may be agreed by the parties.