THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
CASE NO: 262/06
Reportable
In the matter between
CENTRAL AUTHORITY
Appellant
and
BRIDGET KNEPPERS VAN HANXLEDEN HOUWERT
Respondent

Coram:
Farlam, Heher, Van Heerden, Maya JJA et Hancke AJA
Heard:
17 May 2007
Delivered:
4 June 2007
Summary:
Minor – wrongful retention of – Hague Convention on the
Civil Aspects of International Child Abduction (1980) –
defences – article 13(a) – consent to retention – onus on
parent raising the defence – no real or genuine dispute of fact
raised on consent issue – expeditiousness essential at all
stages of the Convention process, including appeals
Neutral citation: This judgment may be referred to as Central Authority v
Houwert [2007] SCA 88 (RSA)

JUDGMENT

VAN HEERDEN JA:

Introduction
[1] This appeal concerns a little boy (Noë) who was born on 1 May 2002
and is now five years old.  He was brought to South Africa by his mother, the
respondent, from Zandvoort, the Netherlands, in September 2003.  Both he and
his mother are still in South Africa, presently living in Pretoria with the maternal
grandparents.
[2] On 24 June 2004, the appellant applied to the Pretoria High Court in
terms of the Hague Convention on the Civil Aspects of International Child
Abduction (1980) (the Convention), as incorporated into South African law by
the Hague Convention on the Civil Aspects of International Child Abduction Act
72 of 1996 (the Act), 1 for an order directing the immediate return of Noë to the
Netherlands.
[3] On 14 June 2005, Van Oosten J in the Pretoria High Court made an
order in, inter alia, the following terms:
‘1. That the respondent [the mother], if oral evidence is required:
1.1 Be ordered to return to the Netherlands for the purpose of attending and/or
opposing the custody hearing in respect of the minor child, Noë van Hanxleden Houwert
(“the minor”).
1.2 Return to the Netherlands seven days prior to the hearing of the custody hearing.

1 Which came into operation on 1 October 1997. Section 2 of the Act provides that the
Convention (the full text of which is annexed to the Act as a Schedule) applies in South Africa.
Thus, in terms of s 231(4) of the Constitution of the Republic of South Africa, 1996, the
Convention has the force of law in this country.

2. That the father of the minor child shall give the respondent’s attorneys 30 days notice prior to
the date of the hearing in the Netherlands of such date.
3. That the father of the minor child is ordered to:

3.1 Purchase a return ticket for the respondent and the minor child.
3.2 Provide free accommodation for the respondent and the minor child at 85 Keesom
Street, Zandvoort and the father will move out from such address for the duration of the
respondent’s stay aforementioned in the Netherlands.
3.3 Pay the respondent 500 euro maintenance upon her arrival in the Netherlands and
which amount will be a maintenance payment for a period of 10 days.  If the matter
should proceed after this period he shall be obliged to pay a further amount of
maintenance in the amount of 50 euro per day.
4. If the custody hearing is postponed for any reason whatsoever the respondent and Noë will
return to South Africa.
5. In the event of the respondent and the minor child having to return to the Netherlands for a
continuation of the custody hearing, the provisions as set out in paragraph 3 above will apply.
6. Each party to pay their own costs.’
This order was more or less identical to a draft order prepared by counsel for
the mother at the request of the court a quo.  In fact, it appears from the
judgment that, after hearing argument, the learned judge requested counsel for
the parties to each prepare a draft order providing for Noë’s return to the
Netherlands ‘for the purpose of determination of the custody dispute’ and that
both duly complied with his request.

[4] On 28 June 2005, the appellant applied to the Pretoria High Court for
leave to appeal to the Full Court, which application was refused on 28
September 2005.  On 23 February 2006, this Court condoned the late filing of
the appellant’s application for leave to appeal and granted leave to appeal to
this Court, ‘conditional upon the appeal against the order of the Haarlem Court
dated 27 September 2005, succeeding’.  I will return in due course to the
significance of the proceedings in the Dutch courts.  Suffice it at this stage to
say that the appeal against the said order of the Haarlem Court did indeed
succeed, on 23 March 2006, hence the present proceedings.
Background
[5] The father, who is presently 31 years old, is a citizen of the Nether-
lands.  He met Noë’s mother, who was born and bred in South Africa and who
is now also 31 years old, in 1998 in the Netherlands, where she was working as
an au pair.  After living together for several years, first in Haarlem and then in
Zandvoort, they were married in Pretoria on 15 July 2000 and thereafter
returned to the Netherlands.  Their son, Noë, was born in Zandvoort on 1 May
2002 and is also a citizen of the Netherlands.  The mother has dual South
African and Dutch citizenship.
[6] On 25 September 2003, the mother and Noë left the Netherlands for
South Africa, travelling on return tickets.  It is common cause that the father
consented to his wife’s taking Noë to South Africa at that time.  However,
according to the father, the agreed purpose of the visit to South Africa was an

extended holiday, for no longer than three months, as the mother was homesick
and needed some time to herself.  The mother’s version is that they had jointly
decided to emigrate to South Africa and make their permanent home there with
Noë; that it was agreed that she and Noë would travel to South Africa by
themselves in September 2003, leaving the father behind to wind up the family’s
affairs in Holland, and that the father would join them in South Africa ‘by
December 2003’.
[7] In about January 2004, the mother informed the father that she was not
returning to the Netherlands, but would remain in South Africa with Noë on a
permanent basis.  The mother says that the father informed her during
December 2003 that he would be joining them in South Africa only in March
2004 and that, after December, it became apparent to her that their marriage
relationship, which had been deteriorating for some time, had broken down
irretrievably.  In consequence, she telephonically discussed the question of
divorce with him in January 2004, only to be told that he had already consulted
a lawyer in Holland in that regard.  According to her, they agreed that they
should be divorced and that she would have custody of Noë and stay with the
child in South Africa.  It is her case that there is no question of a ‘wrongful

removal’ of Noë from the Netherlands or a ‘wrongful retention’ of Noë in South
Africa within the Convention meaning of these concepts.2
[8] The father’s version is again quite different.  He states that, when he
asked his wife, in about December 2003, exactly when she would be returning
to the Netherlands with Noë, she indicated that she wanted to stay in South
Africa a little longer.  He did not agree to this and, in the weeks that followed, he
realised that she had misled him and that she had in fact ‘abducted’ his son by
retaining him in South Africa after the period of the agreed holiday visit had
expired.  It was at this stage (in about February 2004) that he consulted the
Dutch Central Authority with a view to effecting Noë’s return to the Netherlands
under the auspices of the Convention.  His case is that, sometime in December
2003, the mother wrongfully retained Noë in South Africa and that it was this
wrongful retention that gave rise to the application to the Pretoria High Court.
[9] It is common cause that, at the time of the alleged wrongful retention of
Noë in South Africa in December 2003, the little boy was habitually resident in
the Netherlands.  It is clear from the extract from the Dutch Civil Code annexed
to the appellant’s founding affidavit, as well as from the correspondence

2 The removal (or retention) of a child under the age of 16 years is considered to be ‘wrongful’
for the purposes of the Convention where it is in breach of custody rights attributed to a person,
an institution or any other body under the law of the state in which the child in question was
habitually resident immediately prior to the removal or retention, provided that those custody
rights were actually being exercised at the time of the removal or retention, or would have been
so exercised but for the removal or retention:  articles 3 and 4 of the Convention (see further
Sonderup v Tondelli & another 2001 (1) SA 1171 (CC) para 10, Pennello v Pennello 2004 (3)
SA 117 (SCA) para 4, esp n 4).

addressed by the Dutch Central Authority to the (Acting) Chief Family Advocate
of South Africa which forms part of the record, 3  that both parents were
exercising equal custody rights in respect of their child at that time.
[10] On 3 February 2004, the father completed and signed the necessary
documentation to request the Dutch Central Authority for its help in securing
Noë’s return.  That Central Authority in turn transferred the father’s application
under the Convention to the (Acting) Chief Family Advocate of South Africa4 in
terms of article 9 of the Convention.5  On 6 April 2004, the latter delegated her
Convention powers and duties in respect of this return application to Mr
Gerhard van Zyl, then a family advocate based in Pretoria. 6  Mr van Zyl
attempted to correspond with the mother by registered mail dated 19 April 2004,
but this letter was returned unclaimed.  A few days later, upon receipt of a copy
of the divorce summons issued by the mother against the father in the Pretoria

3 See article 14 of the Convention, in terms of which the judicial or administrative authorities of
the requested State may, ‘in ascertaining whether there has been a wrongful removal or
retention within the meaning of Article 3 . . . take notice directly of the law of, and of judicial and
administrative decisions, formally recognised or not in the State of habitual residence of the
child, without recourse to the specific procedures for the proof of that law or for the recognition
of foreign decisions which would otherwise by applicable.’
4 Article 6 of the Convention requires every Contracting State to designate a Central Authority to
discharge numerous duties imposed on Central Authorities by the Convention.  In terms of s 3
of the Act, the Chief Family Advocate is designated as the Central Authority for the Republic of
South Africa.
5 Article 9 provides that ‘[i]f the Central Authority which receives an application referred to in
Article 8 has reason to believe that the child is in another Contracting State, it shall directly and
without delay transmit the application to the Central Authority of that Contracting State and
inform the requesting Central Authority or the applicant, as the case may be.’
6 The Chief Family Advocate, as the Central Authority for South Africa, may delegate or assign
any of her powers or duties under the Convention to any Family Advocate appointed in terms of
the Mediation in Certain Divorce Matters Act 24 of 1987: see s 4 of the Act, read with regulation
3 of the regulations promulgated under s 5 of the Act in Government Notice R1282 of
Government Gazette No.18322 dated 1 October 1997.

High Court, he ascertained that she was represented by attorneys, with whom
he immediately made telephonic contact and arranged a meeting with the
mother and her local attorney for 28 April.  Pursuant to that meeting, Mr van Zyl
informed the mother’s attorneys in writing that she was ‘retaining Noë wrongfully
in South Africa’ and put her to terms to agree to a voluntary return with Noë to
the Netherlands.  Shortly thereafter, Mr van Zyl resigned from the Office of the
Family Advocate and, on 10 May 2004, Ms Cheryl Grobler, also a family
advocate based in Pretoria, was delegated by the Acting Chief Family Advocate
to deal with this matter in Mr van Zyl’s stead.  The latter’s delegation was
withdrawn on the same day.
[11] By letter dated 9 June 2004, Ms Grobler informed the mother’s
attorneys that an application under the Convention for the return of Noë to the
Netherlands was about to be launched against her.  Ms Grobler requested the
attorneys to suspend the South African divorce proceedings instituted by the
mother against the father in March 2004 – in which she was claiming inter alia
custody of and maintenance for Noë – as well as her subsequent application in
terms of Uniform Rule 43, pending a decision in the forthcoming return
application.7

7 In terms of article 16 of the Convention, ‘after receiving notice of a wrongful removal or
retention of a child in the sense of Article 3, the judicial or administrative authorities of the
Contracting State to which the child has been removed or in which it has been retained shall not
decide on the merits of rights of custody until it has been determined that the child is not to be
returned under this Convention or unless an application under this Convention is not lodged
within a reasonable time following receipt of the notice.’

[12] As indicated above, the return application was instituted in late June
2004.  Ms Grobler deposed to the main founding affidavit.  For some
(unexplained) reason, the father was not joined as a co-applicant, as is usually
the case when a return application under the Convention is instituted by the
Central Authority. 8   The application was opposed by the mother.  In her
answering affidavit, filed only on 15 November 2004, she relied mainly upon her
allegation that the father had consented to the permanent removal of Noë to
South Africa and that her retention of Noë in this country after December 2003
was therefore not ‘wrongful’ for the purposes of the Convention.  In essence,
she raised a defence in terms of article 13(a) of the Convention, which provides
as follows:
‘Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of
the requested State is not bound to order the return of the child [in other words, it has a
discretion in this regard] if the person, institution or other body which opposes its return
establishes that –
(a) the person, institution or other body having the care of the person of the child was not
actually exercising the custody rights at the time of the removal or retention, or had consented
to or subsequently acquiesced in the removal or retention . . .’(Emphasis added.)

8 See eg Sonderup v Tondelli & another above n 2 para 3; Chief Family Advocate & another v G
2003 (2) SA 599 (W) at 604I-605B; Senior Family Advocate, Cape Town, & another v Houtman
2004 (6) SA 275 (C) para 1.  Article 8 of the Convention provides that any person, institution or
other body who claims that a child has been removed ‘in breach of custody rights’ may apply
either to the Central Authority of the child’s habitual residence or to the Central Authority of any
other Contracting State for assistance in securing the return of the child.  In terms of art 7(f), one
of the obligations imposed upon Central Authorities is to ‘initiate or facilitate the institution of
judicial or administrative proceedings with a view to obtaining the return of the child’.

[13] The appellant’s replying affidavit was filed on 21 November 2004,
provoking a supplementary answering affidavit by the mother which was filed on
8 June 2005.  As already indicated, the Pretoria High Court delivered its
judgment on 14 June 2005, ultimately giving rise to the present appeal.
[14] In the meantime, the father had instituted divorce proceedings against
the mother in the Haarlem District Court on 9 February 2004, claiming inter alia
custody of Noë.  This claim was opposed by the mother who counterclaimed for
sole custody of and maintenance for Noë.  On 12 October 2004, the Haarlem
court granted a divorce order, but stayed the proceedings in respect of the
custody and maintenance issues because of the then pending return application
in South Africa. Subsequently, on 27 September 2005, the Haarlem court
declared that it did not have jurisdiction ‘to hear the requests for relief
separately submitted by both parties in respect of the parental authority and
establishment of the principal residence of’ Noë.
[15] On 23 March 2006, on appeal to it from the Haarlem Court, the Full
Bench Division for Family Matters of the Amsterdam Court of Appeal held that –
‘ . . . the District Court wrongfully concluded that the case had little connection with the
jurisdiction of the Netherlands in order to be able to properly judge the interest of the child.’
The Appeal Court thus ‘annulled’ the judgment of the Haarlem District Court in
this regard and referred the case for further hearing and judgment back to that
court.  The effect of this judgment is, as explained by the Dutch Central

Authority in a letter to the Acting Chief Family Advocate dated 9 June 2005,
that:
‘the last mentioned Court [the Haarlem District Court] will await the outcome of proceedings
before the Supreme Court [of Appeal] in South Africa before it will re-initiate proceedings.  After
it has been decided in South Africa whether the applicant father’s request for return will succeed
or whether it will be dismissed, the Court of Haarlem will decide upon the issues of parental
custody and habitual residence.’
The object of the Convention and the proper approach to the
article 13(a) ‘defence’
[16] As has been pointed out by this Court more than once, the purpose of
the Convention is to protect children from the harmful effects of their wrongful
removal from the country of their habitual residence to another country or their
wrongful retention in another country.  This the Convention does by establishing
a procedure to secure the prompt return of any such child to the country of his
or her habitual residence so that custody and similar issues in respect of the
child can be adjudicated upon by the courts of that country.9
[17] In terms of article 12 of the Convention, where the removal or retention
of the child in question is indeed wrongful within the meaning of articles 3 and
410 and, at the date of commencement of the return proceedings before the
judicial or administrative authority of the requested State, a period of less than a
year after the wrongful removal or retention has elapsed – as is the case with

9 See Smith v Smith 2001 (3) SA 845 (SCA) para 6 and Pennello above n 2 para 25.
10 See n 2 above.

Noë – then the authority concerned is obliged to order the immediate return of
the child.  Even if a period of longer than a year has elapsed, the authority
concerned is still obliged to order the return of the child unless it is
demonstrated that the child is settled in its new environment.
[18] There are, however, certain limited exceptions to the mandatory return
of the child, one of which is contained in article 13(a).11  Once the applicant for a
return order under the Convention has established that the child was habitually
resident in the Contracting State from which he or she was removed
immediately prior to the removal or retention and that the removal or retention
was wrongful, then the onus is on the party resisting return to establish one or
other of the defences referred to in articles 13(a) or (b), 12  or that the
circumstances are such that the return of the child ‘would not be permitted by
the fundamental principles of the requested State relating to the protection of
human rights and fundamental freedoms’.13  Even if the requirements of one or
more of these ‘defences’ to a mandatory return of the child are satisfied, the
relevant authority may still in its discretion order the return of the child.

11 See para [12] above.
12 On the ‘defence’ referred to in article 13(b), see Pennello above n 2 paras 29-35 and the other
authorities there cited.  The authority hearing the return application may also refuse to order the
return of the child if it finds that the child objects to being returned, and has attained an age and
degree of maturity at which it is appropriate to take his or her views into account (article 13).
13 Article 20.

[19] As indicated above, the central issue in this case revolved around the
article 13(a) defence of consent.  In her heads of argument filed before this
Court, the mother’s counsel submitted that, because of the lengthy period of
time that Noë has been in South Africa, a return to the Netherlands at this stage
would place him in ‘an intolerable situation’ within the meaning of article 13(b) of
the Convention.  Although counsel did not pursue this argument at the hearing
before us, it must be pointed out that the question of the inordinate delay
adversely impacting on Noë and creating an ‘intolerable situation’ in the event of
his return to the Netherlands was not specifically raised as an issue for
determination nor adequately canvassed in the affidavits before the court a quo.
Had the mother thought it necessary for this Court to consider that issue, even
at this late stage of the proceedings, it was open to her to launch an appropriate
application to place before us such additional information as may have borne
upon that issue.  Had this been done, then the appellant would of course have
been entitled to reply. 14   The mother did not, however, follow this route.
Although I will return later in this judgment to the systemic delays which have
plagued these Convention proceedings, there is in my view no basis for
deciding the matter other than on the central issue of consent.
[20] As was pointed out by Hale J in Re K (Abduction: Consent):15
‘ . . . the issue of consent is a very important matter:

14 See in this regard Pennello above n 2 paras 17-18 and the other authorities there cited.
15 [1997] 2 FLR 212 (FD) at 217.

“It needs to be proved on the balance of probabilities, but the evidence in support of it
needs to be clear and cogent.  If the court is left uncertain, then the ‘defence’ under Art
13(a) fails.”
. . . [i]t is obvious that consent must be real.  It must be positive and it must be unequivocal.’16
In that case, Hale J expressly approved the following view expressed by
Holman J in Re C (Abduction: Consent):17
‘If it is clear, viewing a parent’s words and actions as a whole and his state of knowledge of
what is planned by the other parent, that he does consent to what is planned, then in my
judgment that is sufficient to satisfy the requirements of Art 13.  It is not necessary that there is
an express statement that “I consent”.  In my judgment it is possible to infer consent from
conduct.’18
Consent by the father?
[21] The main dispute of fact arising from the affidavits relates to whether or
not the father consented, either expressly or tacitly, to the continued residence
of the mother and Noë in South Africa on a permanent basis.  As stated
already, the onus of establishing such consent rests on the mother.  As neither
party sought to have the matter referred for the hearing of oral evidence,
whether or not the ‘defence’ of consent will succeed depends upon the
uncontested facts in this regard in the appellant’s founding affidavit and the
respondent’s (the mother’s) version in her answering papers in respect of those

16 See further Re P (Abduction: Consent) [2004] 2 FLR 1057 (CA) para 33.
17 [1996] 1 FLR 414 (FD) at 419.
18 See also Re A (Abduction: Habitual Residence: Consent) [2006] 2 FLR 1 (FD) paras 70-88.

facts which are the subject of a ‘real, genuine or bona fide dispute of fact’.19  In
a situation where such a dispute exists, the court may well be obliged, in
appropriate circumstances, to refer it for oral evidence if there is no other way of
deciding the issue.  However, any such reference to oral evidence would have
to be strictly circumscribed by the essential elements of the defence and the
hearing would have to take place as a matter of urgency.  It should always be
borne in mind that, as pointed out in Pennello:20
‘[T]he Convention is framed around proceedings brought as a matter of urgency, to be decided
on affidavit in the vast majority of cases, with a very restricted use of oral evidence in
exceptional circumstances.  Indeed, there is direct support in the wording of the Convention
itself for return applications to be decided on the basis of affidavit evidence alone, and courts in
other jurisdictions have, in the main, been very reluctant to admit oral testimony in proceedings
under the Convention.  In incorporating the Convention into South African law by means of Act
72 of 1996, no provision was made in the Act or in the regulations promulgated in terms of s 5
thereof indicating that South African courts should not adopt the same approach to proceedings
under the Convention as that followed by other Contracting States. In accordance with this
approach, Hague proceedings are peremptory and “must not be allowed to be anything more
than a precursor to a substantive hearing in the State of the child’s habitual residence, or if one
of the exceptions is satisfied, in the State of refuge itself”.’ (Footnotes omitted.)

19 Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 634E-
635C.  This rule has been held to apply even in cases where the onus of proving facts in dispute
rests on the respondent and not only when the onus rests on the applicant: Ngqumba v
Staatspresident; Damons NO v Staatspresident; Jooste v Staatspresident 1988 (4) SA 224 (A)
at 259C-263E.  It should be mentioned that, in the judgment of this Court in ABSA Bank Ltd t/a
Bankfin v Jordashe Auto CC 2003 (1) SA 401 (SCA) para 23, there was an oblique indication
that the correctness or otherwise of the Ngqumba  case might have to be reconsidered at some
stage.
20 Above n 2 para 40 and the other authorities there cited.

[22] In her answering affidavits, the mother alleged that she and the father
discussed the question of a permanent move to South Africa from about May
2003 and that these discussions had resulted in a joint decision that the family
would emigrate to South Africa.  However, in a document written by her on 15
April 2004, which was annexed to the appellant’s replying affidavit as Annexure
‘G’,21 she made the following statements:
‘My decision to come to S.A. in Sept. 2003 was firstly my concern for Noë’s emotional stability
and safety and also to remove myself from the emotional and verbal abuse and neglect from
Nico [the father] during our short marriage . . .
After the outburst from Nico’s mother [in September 2003] I started making plans and
discussing (I thought) with Nico, that I needed time to think and find myself again.  I told him I
was taking Noë with, and going home to S.A. for an indefinite period, until I could make a
decision . . .
. . . I at that stage [immediately prior to her departure for South Africa on 25 September 2003]
just had in mind that I needed time and space to think, and decide whether I still wanted this
marriage and to be a part of that family . . .
It was during this time [in December 2003] that I came to the decision that things would never
work out between Nico and I.  In January ’04 I informed him of my decision and proceeded to
get an appointment with my lawyer 12th Feb.  On this visit I asked what the legal position was
and what my rights were . . .’. (Emphasis added.)

21 Although not deposed to under oath, this document is admissible in the present proceedings
in terms of article 30 of the Convention which provides as follows: ‘Any application submitted to
the Central Authorities or directly to the judicial or administrative authorities of a Contracting
State in accordance with the terms of this Convention, together with documents and any other
information appended thereto or provided by a Central Authority, shall be admissible in the
courts or administrative authorities of the Contracting States.’

[23] In support of her ‘defence’ of consent, the mother also relied quite
heavily on the signature by the father of a so-called ‘change of address form’ at
the Zandvoort municipal offices on the day before she left with Noë for South
Africa.  However, in this regard too, the mother’s version as set out in her
answering papers conflicts in material respects with her version as set out in the
abovementioned Annexure ‘G’.  There are also other uncontested facts set out
on the papers which detract from the mother’s version, and favour the father’s
version, on the issue of consent.  So, for example, the mother and Noë came to
South Africa in September 2003 on return tickets; the mother travelled with only
two suitcases, leaving behind in Zandvoort the bulk of her personal belongings
such as clothing, photo albums and video tapes of Noë, make-up and personal
letters, as well as almost all Noë’s belongings such as his clothing and toys; in
the few weeks leading up to her departure from the Netherlands with Noë, she
and the father purchased several bulky items of furniture for their home (eg a
king-size bed, a dining table and chairs etc), all of which would have had to be
shipped to South Africa at considerable expense had the couple really been
planning to ‘sell up’ in Zandvoort and emigrate to South Africa.
[24] It must also be borne in mind that, after the alleged wrongful retention of
his son in South Africa in December 2003, the father wasted little time in
approaching the Dutch Central Authority for its assistance in securing Noë’s
return under the Convention.  By no later than 3 February 2004, he had
completed all the necessary documentation in this regard.  Whilst not decisive,
this conduct certainly provides support for the father’s version and is

inconsistent with the notion that he had consented to a permanent removal of
the child to South Africa.
[25] In my view, the material contradictions in the mother’s version, against
the backdrop of the papers as a whole, makes it evident that the mother did not
raise a real or genuine dispute of fact on the key issue of the father’s consent.
There was thus no sustainable ‘defence’ based on article 13(a).
[26] As none of the exceptions justifying the non-return of Noë to the
Netherlands was established on the papers, the court a quo was obliged in
terms of article 12 of the Convention to order Noë’s return to that country.  This
it did not do, instead ordering the mother to return to the Netherlands ‘for the
purposes of attending and/or opposing the custody hearing in respect of’ Noë,
and that only ‘if oral evidence is required’.  That order clearly does not comply
with the Convention and must be set aside.
[27] Prior to the hearing of the matter before us, counsel for the appellant
filed a draft order, setting out conditions for Noë’s return to the Netherlands
intended to ameliorate any potential hardships to which Noë might be exposed
on his return.  Counsel for both parties were requested to comment on the draft
order during the course of the hearing, and also to consider certain aspects of
the order and revert to this Court in writing.  In formulating the conditions which I
intend to impose, I have carefully considered the oral and written submissions

made by counsel in this regard.  However, before dealing with the return order,
there are two important aspects which need to be addressed.
Delays
[28] The primary object of the Convention is to secure the swift return of
children wrongfully removed to or retained in any Contracting State, to restore
the status quo ante the wrongful removal or retention as expeditiously as
possible so that custody and similar issues in respect of the child can be
adjudicated upon by the courts of the country from which the child was
removed.  Not only is this explicitly stated in article 1 of the Convention, but
article 11 expressly enjoins the relevant authorities to ‘act expeditiously in
proceedings for the return of children’ and provides that –
‘If the judicial or administrative authority concerned has not reached a decision within six weeks
from the date of the commencement of the proceedings, the applicant or the Central Authority of
the requested State, on its own initiative or if asked by the Central Authority of the requesting
State, shall have the right to request a statement of the reasons for the delay.’
[29] So too, the Guide to Good Practice under the 1980 Convention drafted
by the Permanent Bureau of the Hague Conference on Private International
Law states as one of its ‘key operating principles’ that ‘expeditiousness is
essential at all stages of the Convention process including appeals’.22  At the
fifth meeting of the Special Commission to review the operation of the

22 See Guide to Good Practice (2003) Part II Implementing Measures para 1.5.

Convention, held in late 2006, the Commission reaffirmed the following
important recommendations made by its 2001 meeting:
‘3.3 The Special Commission underscores the obligation (Article 11) of Contracting States to
process return applications expeditiously, and that this obligation extends also to appeal
procedures.
3.4 The Special Commission calls upon trial and appellate courts to set and adhere to
timetables that ensure the speedy determination of return applications.
3.5 The Special Commission calls for firm management by judges, both at trial and appellate
levels, of the progress of return proceedings.’23
The South African government was represented at this fifth meeting of the
Special Commission.
[30] Unfortunately, the proceedings in the present case were anything but
expeditious.  Some three and a half years have elapsed from the time of Noë’s
wrongful retention in South Africa in December 2003.  Noë is now five years old
and has spent most of his young life in this country.  In a recent decision of the
House of Lords in Re D (A child), 24 Baroness Hale of Richmond expressed the
view that the object of the Convention ‘is negated in a case such as this where
the return application is not determined by the requested State until the child
has been here [in the United Kingdom] for more than three years.’25  She
pointed out, however, that –

23 See March [2007] International Family Law 38 at 41.
24 [2006] UKHL 51.
25 Para 48.

‘ Article 12 of the Convention caters for delay in making the application for return.  If an
application is launched more than 12 months after the wrongful removal or retention, the child is
nevertheless to be returned “unless it demonstrated that the child is now settled in its new
environment”.  The choice of the date of application rather than the date of decision is
deliberate: the left behind parent should not suffer for the failings of the competent authorities . .
. It is not possible, therefore, to argue that cases such as this fall outside the Convention
altogether.’26
In the Re D case, the return application ultimately failed before the House of
Lords on the ground that the father did not have ‘rights of custody’ for the
purpose of the Hague Convention when the minor child was removed from the
country in question (Romania), that the removal was accordingly not wrongful,
and that no obligation to return the child arose under article 12 of the
Convention.  Although the question of delay thus did not arise for decision in
that case, Baroness Hale pointed out that the passage of time had contributed
to a situation in which the child concerned was adamantly opposed to returning
to Romania,27 and the child had reached an age and state of maturity where it
could not be taken for granted that it was inappropriate for him to be given the
opportunity of being heard.28  She thus expressed the view that, in that context:
‘ . . .a delay of this magnitude in securing the return of the child must be one of the factors in
deciding whether his summary return, without any investigation of the facts, will place him in a
situation which he should not be expected to have to tolerate.’29

26 Para 49.
27 Paras 51-54.
28 Paras 57-62.
29 Para 53.

[31] In the present case, the retention of Noë in South Africa was wrongful.
Moreover, unlike in Re D, there was no evidence before us that the delay has
been such that the return of Noë to the Netherlands would indeed place him in
an intolerable situation.30  It is also significant that the present circumstances
were caused by the mother’s unlawful conduct in retaining the child in South
Africa and systemic delays which cannot be attributed to the father.  A court in
the Netherlands is anxiously awaiting the outcome of these proceedings and, in
my view, justice will brook no further delay.
[32] We were nevertheless so troubled by the inordinately lengthy delays in
finalising this matter that we asked the Chief Family Advocate for an
explanation in this regard.  It appears from the affidavit deposed to by the Chief
Family Advocate in response to our request that one of the main reasons for the
lapse of more than two months between her receipt of the request for Noë’s
return from the Dutch Central Authority on 5 April 2003 to the institution of the
return application on 24 June was the resignation of Mr van Zyl from the Office
of the Family Advocate, necessitating the delegation of Ms Grobler to deal with
the matter in his stead.  This does not, however, explain the subsequent delays
in the course of the proceedings in both the Pretoria High Court and in this
Court.

30 The minor in Re D was more than seven and a half years old when the proceedings were
heard by the trial judge and more than eight years old when the appeal was heard by the House
of Lords.  By contrast, Noë is only five years old and it has never been suggested that he has
attained an age and degree of maturity at which it would be appropriate for the court to take
account of his views.

[33] This Court must bear some of the blame.  The record of the
proceedings was lodged with the Registrar on 23 August 2006.  In the practice
note filed on behalf of the appellant on 23 October 2006, it was pointed out that
the matter, being in terms of the Convention, was ‘inherently of an urgent
nature’.  However, it was only some time after the filing of the respondent’s
practice note on 24 November 2006 that the urgency of the matter came to the
attention of the President of the Court.  By then it was too late to set the matter
down for hearing for the first term of 2007 and it was therefore only set down for
hearing in May.  In a letter dated 14 February 2007 addressed to the Registrar
of this Court, the State Attorney pointed out that its client, the appellant, ‘was
under tremendous pressure from the Dutch Central Authority regarding
finalisation of this matter given its international status’ and that ‘all Hague
Convention applications are urgent in their nature’.  Had this letter accompanied
the appellant’s practice note, there is no doubt that the matter would have been
set down for hearing at an earlier stage.  Procedures have now been put in
place to ensure that matters such as this one, which are described as ‘urgent’ in
a practice note filed with the Registrar of this Court, are immediately brought to
the attention of the President of the Court.
[34] Both the Chief Family Advocate, in her capacity as the South African
Central Authority, and the South African courts are obliged by the Convention to
act expeditiously in return proceedings.  There has been a dismal failure in this
matter to give effect to our Convention obligations.  This is no doubt due in
considerable measure to the fact that the resources (including training and

proper procedures) currently available to the Chief Family Advocate and the
various regional offices of the Family Advocate are insufficient to enable the
former effectively to carry out the functions of and obligations imposed on
Central Authorities under the Convention. 31   The training of South African
judicial officers in the principles and procedures underpinning the Convention
also appears to be less than that required by South Africa’s obligations under
the Convention.  It is to be hoped that these shortcomings will receive the
prompt and proper attention of the relevant authorities.  To that end, I intend to
direct that a copy of this judgment be sent to the Minister for Justice and
Constitutional Development, as well as her Director-General.
Non-joinder of the father
[35] As indicated above, the father was not joined as a co-applicant in the
return application and is, therefore, not a party to the present proceedings.  This
means that the conditions which I intend to impose to govern Noë’s return to the
Netherlands, insofar as they impose obligations on the father, will not be binding
upon him unless he consents in some way to be bound by our judgment
notwithstanding the fact that he has not been cited as a party.  This problem
was raised with counsel for the appellant during the hearing before us.
Subsequent to the hearing (and pursuant to our request), an affidavit was
deposed to by the father on 23 May 2007 in the Netherlands stating that a copy
of the draft order prepared by counsel for the appellant has been forwarded to

31 See in this regard Brown v Abrahams 2004 (4) BCLR 349 (C) paras 49-56.

him by electronic mail; that he is aware that if an order is made in terms of the
draft order or any variation thereof, he will be subject to certain obligations; and
that he –
‘ . . .being fully aware of the obligations that may be placed on me by an order of the SCA, I
hereby confirm that I am fully aware of the issues placed before the SCA for its consideration
and I freely, voluntarily and unequivocally consent to and submit myself to the jurisdiction of the
SCA in this appeal with full and complete acceptance and adherence to any order that may be
issued in this appeal by the SCA.’
A copy of this affidavit was filed with the Registrar of this Court.  In order to
ensure that the father is indeed bound by the order which I intend to make, this
order will only be issued once the original of such affidavit is filed with the
Registrar.
The appellant does not seek an order for costs and, in my view, the most
equitable outcome is that each party should pay its or her own costs, both in
this Court and in the court below.
Order
[36] The following order is made:
A.
The appeal is upheld.
B.
The order of Van Oosten J in the Pretoria High Court dated 14
June 2005 is set aside and replaced with the following order:

‘1. It is ordered and directed that the minor child, Noë Jean Paul
Joseph van Hanxleden Houwert (Noë) be returned forthwith, but
subject to the terms of this order, to the jurisdiction of the
Central Authority for the Netherlands.

2. In the event of Bridget Kneppers van Hanxleden Houwert
(the mother) notifying Mr Chris Maree of the Office of the Family
Advocate, Pretoria (the Family Advocate) within one week of
the date of issue of this order that she intends to accompany
Noë on his return to the Netherlands, the provisions of
paragraph 3 shall apply.

3. Nicolas Christian Bernard Paul van Hanxleden Houwert (the
father) shall within one month of the date of issue of this order,
institute proceedings and pursue them with due diligence to
obtain an order of the appropriate judicial authority in the
Netherlands in the following terms:

3.1 The mother is awarded interim custody of Noë pending
the final adjudication and determination by the appropriate
court in the Netherlands of the issues of custody and care
of and access to Noë, which adjudication and determination
shall be requested forthwith by the father.

3.2 Until otherwise ordered by the appropriate court in the
Netherlands:

3.2.1 The mother and Noë shall reside at 85 Keesom
Street, Zandvoort, the Netherlands, until the matter of
the custody and care of and access to Noë has been
resolved in the Netherlands. The father shall move out
from the said address during such period, but shall
continue to pay the full rent and other expenses in
respect of the lease of such accommodation.

3.2.2 The father is ordered to pay the mother
maintenance for herself and Noë from the date of
Noë’s arrival in Zandvoort at the rate of 350 euros per
week.  The first pro rata payment shall be made to the
mother on the day upon which she and Noë arrive in
Zandvoort and thereafter weekly in advance on the
first Monday of every week.

3.2.3 The father is ordered to pay any medical and
dental expenses reasonably incurred by the mother in
respect of herself and Noë.

3.2.4 The father is ordered to provide a roadworthy
motor vehicle equipped with a child seat for Noë, for
the use of the mother and Noë from the date of their
arrival in Zandvoort, and to pay all reasonable
expenses in respect of the running of the motor
vehicle, including petrol and oil.

3.2.5 Pending such further determination as to access
as may be made by the appropriate court in the
Netherlands, the father shall have reasonable access
to Noë, the details of such access to be arranged
between the parents under the supervision of the
Central Authority for the Netherlands.

3.2.6 The father and the mother are ordered to co-
operate fully with the Family Advocate, the Central
Authority for the Netherlands, the relevant court or
courts in the Netherlands, and any professionals who
are approved by the Central Authority for the
Netherlands to conduct any assessment to determine
what future custody, care and access arrangements
will be in the best interests of Noë.

3.2.7 The father is ordered to purchase and pay for
economy class air tickets, and if necessary, pay for rail
and other travel, for the mother and Noë to travel by
the most direct route from Pretoria, South Africa, to
Zandvoort.

4. In the event of the mother giving the notice to the Family
Advocate referred to in paragraph 2, the order for the return
of Noë shall be stayed until the appropriate court in the
Netherlands has made the order referred to in paragraph 3

and, upon the Family Advocate being satisfied that such an
order has been made, he shall notify the mother accordingly
and ensure that the terms of paragraph 1 are complied with.

5. In the event of the mother failing to notify the Family
Advocate of her willingness to accompany Noë on his return
to the Netherlands, it is to be accepted that the mother is
not prepared to accompany Noë, in which event the Family
Advocate is authorised to make such arrangements as may
be necessary to ensure that Noë is safely returned to the
custody of the Central Authority for the Netherlands and to
take such steps as are necessary to ensure that such
arrangements are complied with.

6. Pending the return of Noë to the Netherlands, as provided
for in this order, the mother shall not remove Noë on a
permanent basis from the Province of Gauteng and until
then she shall keep the Family Advocate informed of her
physical address and contact telephone numbers.

7. Pending the return of Noë to the Netherlands, the father is
to have reasonable access to Noë, the details of which
access shall be arranged between the parents under the
supervision of the Family Advocate.

8. There is no order as to costs.’

C.
The Family Advocate is directed to seek the assistance of the
Central Authority for the Netherlands in order to ensure that the
terms of this order are complied with as soon as possible.
D.
In the event of the mother notifying the Family Advocate, in terms
of paragraph B.2 above, that she is willing to accompany Noë to
the Netherlands, the Family Advocate shall forthwith give notice
thereof to the Registrar of the Pretoria High Court, the Central
Authority for the Netherlands and to the father.
E.
In the event of the appropriate court in the Netherlands failing or
refusing to make the order referred to in paragraph B.3 above, the
Family Advocate and/or the father is given leave to approach this
Court for a variation of this order.
F.
In respect of this appeal there is no order as to costs.
G.
This order shall not be issued until the original of the affidavit
deposed to by the father on 23 May 2007 has been filed with the
Registrar of this Court.
H.
A copy of this order once issued shall forthwith be transmitted by
the Family Advocate to the Central Authority for the Netherlands
and to the father electronically or by telefacsimile.

I.
The Registrar is directed to send copies of this judgment to the
Minister for Justice and Constitutional Development and to her
Director-General.

B J VAN HEERDEN
JUDGE OF APPEAL
Concur:
Farlam JA
Heher JA
Maya JA
Hancke AJA
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal

Date:
Monday, 4 June 2007

Status:
Immediate

Please note that the media summary is intended for the benefit of
the media and does not form part of the judgment of the Supreme
Court of Appeal

CENTRAL AUTHORITY v HOUWERT

In a judgment delivered today, the Supreme Court of Appeal has
upheld an appeal by the Family Advocate against a judgment of
the Pretoria High Court concerning a 5-year old boy, N, who was
removed from the Netherlands by his mother (the respondent) in
September 2003. The father then set in motion the provisions of
the Hague Convention on the Civil Aspects of International Child
Abduction (1980), which has been incorporated into South African
law by the Hague Convention on the Civil Aspects of International
Child Abduction Act 72 of 1996. The father invoked the assistance
of the Family Advocate in order to secure the immediate return of
N to the Netherlands.

The High Court ordered the mother to return to the Netherlands for
the purpose of attending a custody hearing in respect of N, should
oral evidence be required. The court did not, however, order the
return of N.

In a unanimous judgment, the SCA set aside the judgment of the
High Court and ordered that the child be returned to the Nether-
lands so that the issues of custody and care of and access to N
can be determined by the appropriate court in that country. The
Court rejected the mother’s defence that she had removed N from
the Netherlands on a permanent basis with the consent of the
father and accordingly held that N’s retention in South Africa was
wrongful in terms of the Convention.

In its judgment, the SCA laid stress on the fact that the primary
object of the Convention is to secure the swift return of children
wrongfully removed and to restore the status quo as expeditiously
as possible so that custody and similar issues in respect of the
child can be adjudicated upon by the courts of the country from
which the child was removed. The Court expressed strong criticism
of the delays that had occurred in the present case and issued
directions that a copy of the judgment be forwarded to the Minister
for Justice and Constitutional Development, as well as the
Director-General of the Department, for their attention.