IN THE HIGH COURT OF SOUTH AFRICA 
WESTERN CAPE HIGH COURT, CAPE TOWN
Case no: 17845/2012

In the matter between 

V

JUDGMENT

Introduction and legal framework

[2] The applicant also seeks an order that he or an appointee be granted leave in the event that the respondent elects not to return to the USA, to remove M from her care and to return her to the USA, together with the costs of this application.

[3] The basis of the relief sought by the applicant is that he did not consent to M residing in South Africa beyond 29 December 2012 and that accordingly she has been, or will be, wrongfully retained by the respondent if she is not returned to the USA by that date within the meaning of articles 3 and 12 of the Hague Convention.
[4] Article 3 provides that:
'The removal or the retention of a child is to be considered wrongful where -

(b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
The rights of custody mentioned in sub-paragraph (a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State. ’

[5] Article 3 thus sets out the jurisdictional prerequisites which an applicant is required to establish before a court may consider whether the removal or retention of a child is to be considered wrongful. These are that: (a) the child was habitually resident in the other State; (b) the removal or retention constitutes a breach of custody rights; and (c) the applicant was actually exercising such rights (either jointly or alone) at the time of removal or retention, or would have exercised such rights but for the removal or retention.

[emphasis supplied]

[10] As to a respondent’s version in motion proceedings it can only be rejected where the allegations made -

117 (SCA) at paras 40-41 Van Heerden AJA (as she then was) found as follows:

41]	
[12] The respondent opposes the application on the following grounds:
12.1. Even if the applicant’s version is to be preferred the application is premature since it is based on an anticipatory breach. This defence thus only requires consideration if the applicant’s version is indeed preferred;
12.2. The applicant consented to M remaining in South Africa until the respondent is granted an 0-1 Visa which will entitle her to both live and work in the USA and that such visa has not yet been granted (i.e. article 13(a));
12.3. There is a grave risk that M’s return to the USA, at least without the respondent, would expose her to physical and/or psychological harm or otherwise place M in an intolerable situation (i.e. article 13(b)).

“

[emphasis supplied]
[17] Accordingly whether the applicant consented to M remaining in South Africa beyond 29 December 2012 must be considered on a conspectus of all of the evidence including the applicant’s words and actions as a whole.
The factual matrix

[19] The respondent is a South African citizen who since her arrival with M in South Africa on 28 June 2012 has been residing at her mother’s home in Camps Bay, Cape Town.
[20] During August 2005 the respondent commenced a PhD program at Georgia Tech, having been the recipient of a Fulbright Scholarship. She entered the USA on a J-1 visa which allowed her to complete a PhD and certain post-doctoral work. Upon the expiry of a J-1 visa one is obliged to return to one’s domicile of origin for a two year period, which is a condition precedent for any further immigration or work visa application to the USA. The respondent’s J-1 visa expired on 1 September 2012.
[21] The respondent states that it has always been her intention to pursue and further her academic career in the USA and to seek employment as an associate professor at an appropriate institution there after completion of her PhD. On 3 November 2009 and prior to her dating the applicant the respondent applied for a J-1 visa waiver of the 2 year home residency requirement in order that she might, upon completion of her PhD, immediately commence such employment. These allegations are not denied by the applicant.
[22] The respondent also states that after meeting the applicant she decided to take a one year post-doctoral position at Georgia Tech so that they would not have to live apart. The parties were subsequently married in Atlanta on 3 April 2011. In July
2011,	after she had already commenced her employment at Georgia Tech, the respondent was informed that her J-1 visa waiver request had been denied.

Accordingly from this date the applicant knew that, upon expiry of her J-1 visa, the respondent would have to return to South Africa for a two year period in order to qualify for an immigration or work visa in the USA. Again these allegations are not denied by the applicant, in fact he concedes that upon expiry of her J-1 visa the respondent was obliged to return to South Africa.

[26] Marriage to the applicant does not waive any of the stipulated visa requirements for the respondent, of which the applicant is fully aware.
[27] The respondent states that it was always her intention to move to an institution other than Georgia Tech after graduating with her PhD. There is a dispute about why the respondent left Georgia Tech. What is not in dispute is that after numerous interviews she was offered a position as an assistant professor at the School of Information, University of Maryland, Washington DC as from 1 January 2013, subject of course to her visa requirements being regularised. Her employment contract was signed on 31 May 2012. It is also not in dispute that the respondent could not begin her application for an 0-1 visa until she had secured employment, since the 0-1 visa is employment sponsored. It is noted that the employment contact annexed to the respondent’s papers stipulates a term of employment from 1 January 2013 until 22 May 2016. The applicant was also successful in securing a position as a professor at the University of Maryland and commenced his employment there as from August 2012. As I have said the applicant states that he resigned from this employment in September 2012 and that he will be returning to Georgia Tech as from 1 January 2013.

[29] The respondent states that it was due to M’s condition and the respondent’s need for assistance in caring for M that she returned to South Africa sooner than planned. Although the applicant states that the respondent could have remained in the USA until expiry of her J-1 visa since he had offered to pay for assistance and that the early return was at the insistence of the respondent and her mother, nothing much turns on this since the fact of the matter is that the parties agreed that the respondent would travel to South Africa with M on 28 June 2012. Importantly, and for the first time in his replying papers, the applicant also states that:

[emphasis supplied]
[30] The respondent claims that it was expressly agreed between the parties that she would remain in Cape Town with M until she is issued with an 0-1 visa to allow her to return to the USA to take up her position as assistant professor at the University of Maryland. At the same time the applicant is well aware that if she does not obtain the necessary 0-1 visa, she will have to apply for an immigration or work visa. This being the case she will be unable to return to the USA for at least a two year period and will thus obviously not be in a position to take up any USA employment during that time.

[33] The respondent states that there are a myriad requirements in order to submit a successful application for an 0-1 visa, and that she, together with Hake, are in the process of accumulating the vast array of documentation and information that is required. Given the time constraints and the full time attention that M requires, she will only be able to make the application in January or February 2013. She states that she was accordingly left with no option but to inform the University of Maryland that she would not be able to take up the position on 1 January 2013 and it has now been agreed that, subject to the respondent being issued with the appropriate visa, her employment will instead commence with the University of Maryland on 23 August The revised contract annexed to the respondent’s papers reflects that she signed this document on 31 July 2012 and that it was signed by the university’s representative on 20 August 2012 2012. The revised term of employment commences on 23 August 2013 but still terminates on 22 May 2016.

[35] It seems therefore that the respondent did not consider that it was incumbent upon her to act promptly after her arrival in South Africa to take the necessary steps to process the 0-1 visa application in the hope that it would be issued by 29 December 2012. On the one hand this may be indicative of the respondent deliberately dragging her heels; however on the other, and from certain communications to the respondent from the applicant himself, it appears that although ideally he would have liked the respondent and M to return on 29 December 2012 there was no suggestion that if the respondent did not return with M by that date she would be in breach of any agreement between them.
[36] The communications to which I have referred are as follows:
36.1. On 19 July 2012 the applicant wrote:

36.2. On 21 July 2012 the applicant wrote:

36.3. On 26 July 2012 the applicant wrote:

[38] The applicant returned to the USA about four days later. On 28 August 2012 (i.e. a week after he had received the respondent’s divorce summons) the applicant himself instituted divorce proceedings out of the Superior Court of Fulton County,
Georgia. In the aforementioned petition the applicant:
38.1. incorrectly claimed that the respondent sought custody of M in the South African divorce proceedings (the respondent in fact sought orders that the parties would remain co-holders of parental responsibilities and rights albeit that she would be the parent of primary residence);

38.5. sought an order that M immediately be placed in his primary care in the USA.
[39] There is not a single allegation to be found in the applicant’s petition to the effect that the respondent has breached any agreement, let alone an express agreement that no matter what the respondent would ensure M’s return to the USA on 29 December 2012. On the contrary, the applicant says the following in the petition:
At paragraph 8 thereof:

At paragraph 12 thereof:

And at paragraph 17 thereof:

[40] Two weeks after instituting divorce proceedings in the USA the applicant launched the present application. He states that it was only upon receipt of the respondent’s answering affidavit that he became aware that she had signed a revised contract with the University of Maryland, extending her start date to August 2013. This is denied by the respondent who states that it was with the applicant’s full knowledge and consent, obtained on 26 July 2012, that she signed the revised contract. Although there is no written record of the applicant’s consent, he himself states that since 28 June 2012 and at least until the South African divorce summons was served on him, he and the respondent maintained not only email contact but also telephonic and Skype contact.

Whether a breach has been established
[42] The question that now needs to be answered is whether against this background the applicant has met the jurisdictional prerequisite of a breach of his rights of custody in the sense of a wrongful retention. Inextricably linked to this enquiry is whether the probabilities favour the version of the respondent since in accepting her version above that of the applicant’s there can be no wrongful retention and thus no breach of the applicant’s rights of custody.

[44] These factors, taken together with the respondent’s version as detailed above and the undisputed content of the applicant’s own communications to her of 19, 21 and 26 July 2012, which clearly indicate that it was also within the applicant’s contemplation that the respondent might not return with M on 29 December 2012,
lead me to conclude that the applicant’s contention that there was an express agreement that M would return to the USA on 29 December 2012 is without merit.
[45] Rather, the picture that emerges is that the applicant’s conduct subsequent to 21 August 2012 was really a knee-jerk act of retaliation against the respondent for having issued divorce proceedings against him.

[47] It is for these reasons that I find that the application must fail.
Costs
[48] The respondent’s counsel submitted that when one has regard to the totality of the evidence, the applicant’s assertions of abduction are patently false. These are very serious allegations with far-reaching consequences, not least of all an attempt by the applicant to bolster his position in the USA divorce proceedings. It is noted that in his founding papers the applicant stated:

[49] There is nothing to indicate that the applicant intends changing his stance and I agree with the respondent’s counsel that the allegations that he has made indeed have far-reaching consequences for the respondent, not only in regard to the pending proceedings in the USA but also in regard to her application for an 0-1 visa.
[50] That having been said however I am not satisfied that a punitive costs order is warranted. Time and again our courts are confronted with serious allegations and counter-allegations made by parties in disputes relating to their children. The seriousness of those allegations is invariably scrutinised in some detail but it is only in the most extreme cases of blatant untruths and misconduct that a court will be inclined to make a punitive costs order. It is my view that the present matter does not fall within that category. However there is no reason why the costs of this application should not follow the result.
Conclusion
[51] I accordingly make the following order:

J I CLOETE