A nasty custody battle between a diplomat and a Polokwane mother looks set to drag on after an emotional court appearance this week.
Pretoria high court judge Pierre Rabie ordered that the child's biological mother return her son to the diplomat‚ who helped raise him. The mother is planning to appeal the judgment‚ said her advocate‚ Eliot Buthane.
This follows an urgent application that was brought by the diplomat on Tuesday‚ seeking the return of the minor to her care. She is due to return to her embassy post soon.
Rabie had to temporarily postpone reading his judgment when the biological mom of the eight-year-old burst into tears and walked out of the courtroom‚ followed by her attorney. He adjourned the case for five minutes‚ after which the mom returned.
According to testimony presented in court‚ the diplomat procured a high court order in September 2015‚ which granted her joint guardianship of the child in terms of Section 24 of the Children's Act. She secured the order because she wanted to take the child with her after she was posted to her ambassador post in 2015.
The court heard that from the time the child was six months old‚ he had been living with the diplomat. However‚ the child had been living with his biological mother since March‚ when the diplomat returned home after a family member fell ill.
The child is believed to have been born from a relationship the diplomat's partner had while he was married to her.
None of the parties can be named in order to protect the child.
Rabie said that at the time of the 2015 judgment‚ the biological mother fully supported the diplomat's application "in terms of which she relinquished guardianship over the child in favour of the second applicant".
"In her supporting affidavit‚ the respondent [the biological mother] stated that neither she nor the first applicant [the child's biological father] in the present application were in a position to adequately maintain or meet the needs of the child and therefore agreed that the child should be cared for by the second applicant [the diplomat]‚" said Rabie.
"It was acknowledged that the child will travel [with the diplomat]. [The biological mother] confirmed that the second applicant is the legal guardian of the child. The child proceeded to travel with the [diplomat]."
The judge said the child had been attending a school in the country where the diplomat was posted. However‚ trouble began in March after the diplomat returned to South Africa and the child stayed with his biological mother for a short while.
The diplomat had to secure another court order to force the biological mother to return the child to her by April 2. Rabie said it was clearly envisaged that the child would be returned. However‚ the diplomat was forced by circumstances to extend her stay in the country.
"There was no difficulty with the child staying longer with the [biological mother]‚" Rabie said.
However‚ by the end of May‚ when the diplomat was scheduled to return to her post overseas‚ it became clear that the biological mother was avoiding any contact with her.
The court heard that the biological mother's attorney refused to make known the whereabouts of the child. It was then that the diplomat launched the present application.
Rabie said: "She [the biological mother] says the child is in Limpopo but she does not state with whom the child is staying and where exactly the child is staying. [She] did not take this court into her confidence."
He said the biological mother accused the child's dad of being an absent father. He is a businessman who travels between South Africa and Europe. Rabie ordered the biological mother to immediately return the minor child to the diplomat.
"Should the respondent fail to immediately return the minor child‚ the applicant shall be entitled to apply for the respondent to be held in contempt of court‚" Rabie said.
The judge also ordered the sheriff or his deputy to take the child and hand him back to the diplomat if the biological mother failed to immediately do so.