By Bahle Gama
In a powerful affirmation of legal jurisdiction and parental rights, the High Court of Eswatini has ruled in favour of a mother who relocated to South Africa with her child, rejecting a father’s urgent bid to have the child forcibly returned to Eswatini.
The court found that it lacked the authority to intervene in the matter, as the child now resides permanently outside the kingdom — a position strongly advanced by the mother’s legal team and ultimately endorsed by the judge.
The application was brought by Lindumenzi Hlanze, who claimed that the mother of his child, Zukiswa Shabalala, had wrongfully kept their daughter in South Africa. He wanted the Eswatini courts to compel her return, arguing that the child was a citizen of the kingdom and had been enrolled in school locally before being taken away.
However, the court’s ruling made it clear: jurisdiction ends at the border. In his judgment, the presiding judge said the High Court could not issue orders involving people who no longer live within Eswatini’s territorial jurisdiction, especially in matters concerning custody and parental responsibilities.
The ruling emphasised that South African courts are now the appropriate legal forum, given that the child and mother reside there permanently.
Shabalala, represented by legal counsel, had firmly argued that the matter fell outside Eswatini’s jurisdiction. She confirmed that she and her daughter now live permanently in South Africa, in a secure environment with her husband, and that the child is enrolled at Pinnacle Private College — a reputable private school.
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She maintained that any decisions regarding custody, education, or welfare must be handled by South African courts, not by those in Eswatini. The High Court fully agreed with her position.
“The courts of Eswatini cannot issue custody orders affecting individuals who are no longer within the country,” the ruling stated plainly.
Hlanze had accused the mother of unlawfully removing the child and even raised allegations of abduction and potential human trafficking. But the court firmly rejected those claims, saying there was no evidence the child was in danger or being mistreated.
The judge referred to South African precedent — including the Di Bona v Di Bona (1993) case — which affirms that custody decisions should be made by the courts where the child physically resides.
The High Court also cited S v Emmanuel (2009) to underscore that for any claim of trafficking to succeed, there must be proof of abuse or exploitation, which, in this case, was completely absent. On the contrary, the child was found to be living in a safe, stable environment and receiving a good education.
Hlanze had based his application on Section 151 of the Constitution of Eswatini, which gives the High Court broad powers in civil and criminal matters. However, the judge clarified that those powers apply only within the kingdom.
“To interpret Section 151 as giving this court jurisdiction over citizens outside Eswatini would be a dangerous overreach,” the judge warned. “It would effectively allow the court to insert itself into foreign jurisdictions without legal basis.”
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The court also addressed whether the mother had submitted herself to the court’s jurisdiction by filing opposing papers. The judge dismissed this argument, stating that responding to a case does not mean one accepts the authority of the court, particularly when jurisdiction is being contested.
The court dismissed the father’s application and ordered each party to cover their own legal costs. In doing so, the High Court sent a clear message: custody disputes must be handled in the country where the child lives, and Eswatini’s courts will not act beyond their legal limits.
This ruling sets an important precedent for future cross-border parental disputes. It reaffirms the principle of jurisdiction, protects the rights of parents residing abroad, and ensures that legal decisions affecting children are made in the appropriate legal forums.
In this case, the mother’s rights, reasoned approach, and the best interests of the child prevailed — and rightly so.
