H[…] S[…] B[…] v The Honourable Magistrate Mncube N.O. and Another

The applicant and the second respondent were divorced in March 2023 after a 20-year marriage. Their settlement agreement, made an order of court, provided that their 11-year-old daughter’s primary residence would be with the applicant. The applicant later sought to relocate from Johannesburg to Durban with the minor, which required the second respondent’s consent or a court order. Parenting coordinators and a ‘voice of the child’ expert supported relocation, albeit later. The second respondent opposed the move and initiated proceedings in the Children’s Court, seeking primary residence if the applicant relocated. After a series of contentious interactions, including criminal charges between the parties, the applicant unlawfully removed the minor to KwaZulu-Natal in September 2024, prompting urgent litigation and the minor’s return to Johannesburg. On 10 January 2025, the Children’s Court made an order adopting the Family Advocate’s recommendations and referring the matter to Living Links for a ‘consolidation’ of reports. The applicant launched an urgent High Court application to review and set aside that order and to obtain leave to relocate with the minor to Durban.

The matter was heard as urgent; the Children’s Court order dated 10 January 2025 was declared a nullity; the applicant was granted leave to relocate to Durban with the minor during the April 2025 school term break; detailed contact rights were granted to the second respondent; and no order as to costs was made.

The judgment clarifies the limits of the Children’s Court’s powers under section 62 of the Children’s Act, confirming that courts may not delegate their adjudicative function or appoint organisations rather than qualified individuals to perform statutory investigations. It also reinforces South African relocation jurisprudence by balancing the best interests of the child with the constitutional rights and bona fide life choices of the primary caregiver, even in the context of prior unlawful conduct.