Introduction

The recent High Court case of M v M and others (980/2023) [2023] SZHC 590 (3 October 2023) underscores Children’s Court power to place the best interests of a minor child in question in every matter involving a minor children, as enshrined in the Constitution of the Kingdom of Eswatini Act 1 of 2005 (‘the Constitution) as read together with the Children’s Protection and Welfare Act 2012 (‘the CPW Act’).

Background Facts

The applicant and first respondent were husband and wife and were both South African Nationals. The subject of the application was their minor female child aged just about 9 years old, who was also a South African National. The biological mother of the minor child (first respondent) had migrated to the Kingdom of Eswatini after an obvious impasse with the applicant, and their marriage had hit the rocks.

The biological mother of the child had previously approached the Johannesburg High Court for an order that she be granted custody of the minor child and be allowed to relocate with her to Eswatini. Accordingly, an order was issued by the Johannesburg High Court as per Manoim J, granting the biological mother custody and the right to travel with the minor child to Eswatini. Dissatisfied with the order, the biological father duly noted an appeal before the South African Supreme Court – which in effect, suspended the operation of the order.

Be that as it may, the biological mother duly travelled with the minor child to Eswatini without the consent of the biological father and without obtaining the minor child’s necessary travelling documents. Aggrieved with this, the biological father (applicant) duly approached the Eswatini High Court on an urgent basis, seeking a recovery order of the minor child in terms of section 78 (1) of the CPW Act on the basis that the minor child had been ‘abducted’ by the respondent, procured into Eswatini illegally without his consent and without the necessary travelling document.

The hearing

At the hearing of the matter, the biological mother, now respondent, duly opposed the application and raised various points in limine, namely:

1. Lack of urgency;
2. Failure to satisfy the requirements of an interdict;
3. Applicant has no right of audience in Eswatini because he is a peregrinus of the Court with no assets whatsoever;
4. Lack of jurisdiction and/or lis pendis.

The combined purport of these points in limine was to shut the applicant’s door and to deny him the right to be heard, in circumstances wherein he had approached the Honourable Court with prima facie proof that his minor child had been procured to Eswatini illegally without his consent and without the necessary travelling document(s). The applicant averred that at the time he deposed to the affidavit, the minor child’s travel document was in his possession in the South Africa, therefore, the presence of the minor child in Eswatini was left wanting and the reasonable suspicion was that, she was procured to Eswatini through an illegal entry point.

The Court’s analysis

His Lorsdhip N. Maseko J dismissed all of the first respondent’s points in limine. The Learned Judge reasoned as follows at paragraph 20 of the judgment:

“The proceedings in casu pertain to the best interests of the minor child, and as stated earlier in the ruling, this Court is the Upper Guardian of all minor children, and this one is no exception. There is no amount of legal technicalities that could stop this Court from enquiring into the well-being and interest of a minor child. During the arguments it transpired and was confirmed by Mr Simelane that when the minor child was brought into the country in February 2023 pursuant to the order of Manoim J, she was not issued with a passport and or any other documentation issued lawfully by the Department of Home Affairs in South Africa, this was in blatant violation of paragraph 4 of the order of Manoim J”.

The Court went on to also affirm that a child’s rights are constitutionally recognised and protected. As such, there is no Court that can turn a blind eye when the interest of the child are at stake. The Court also cited various provisions of the CPW Act which restate the position that courts are enjoined to always consider, as of paramount importance, the best interest of a minor child in every application involving a minor child.

The takeaways

This case underscores the general importance of courts upholding “the best interests” of a minor child in every case that involves a minor child. Therefore, in upholding this statutory and Constitutional obligation, Courts are not bound by legal technicalities so as to avoid the court from ventilating the merits of any application before it where the interests of a child are at stake. Be it a matter involving: maintenance, custody, access, guardianship or any other relevant matter.

Therefore, for future purposes, litigants should avoid raising frivolous legal technicalities so as to prevent courts from dealing with the merits of any case involving the welfare of a minor child.