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[2019] ZAGPJHC 127
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W J v S C (43927/2018) [2019] ZAGPJHC 127; 2019 (6) SA 168 (GJ) (11 April 2019)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
CASE
NO: 43927/2018
In
the matter between
:
W
J
Applicant
and
S,
C
Respondent
J
U D G M E N T
Van
der Linde, J
:
[1]
In this application the 26 year old mother of a minor boy who turns 4
years old on 20 April 2019, applies for the consent of
the
respondent, who is the biological father of the boy, which consent is
otherwise required in terms of section 18(3)(c)(iii)
of the
Children’s Act, 38 of 2005, be dispensed with. The
minor boy, S S, was born from a brief romantic relationship
between
the applicant and the respondent when she was 22 years old and the
respondent was 29 years old. Their relationship
was not a
serious one and they separated just after the boy was born.
[2]
The applicant has since 2017 been living on a permanent basis with Mr
J E, who has just obtained a job in New Zealand, and a
12-month Visa
to relocate there. The applicant and Mr E are engaged to be
married and they want to relocate to New Zealand
taking the minor boy
with them.
[3]
The respondent opposes the relief sought. He does not put up a
case that he is able himself properly to care for the minor
boy,
although in a single sentence he does say that if the applicant
wishes to emigrate with Mr E to New Zealand, the minor boy
could
always stay with him. This is the way he puts it:
“
If the applicant wishes to
emigrate I would happily look after our son for as long as it would
be required.
”
[4]
His real case however is that he does not believe that the
relationship between the applicant and Mr E will see the distance,
and in any event he believes that the application is lacking for want
of proper expert opinions supporting the applicant’s
proposition that it is in the best interest of the minor child to
accompany the applicant and her fiancé in their new life
in
New Zealand.
[5]
Section 18(3)(c)(iii) of the Act provides that a parent of a child
must give or refuse any consent required by law in respect
of the
child, including consent to the child’s departure or removal
from the Republic. In terms of section 18(4) of
the Act,
whenever more than one person has guardianship of a child, each of
them is competent to exercise independently and without
the consent
of the other party, any right or responsibility arising from such
guardianship.
[6]
Finally, section 18(5) of the Act provides as follows:
“
Unless a competent court
orders otherwise, the consent of all the persons that have
guardianship of a child is necessary in respect
of matters set out in
subsection (3)(c).
”
[7]
The application therefore comes under section 18(5) of the Act.
[8]
In the LexisNexis publication, A Practical Approach to the Children’s
Act, 2
nd
edition by Bosman-Sadie and Corrie, the learned authors say that the
motivation for wishing to leave the country must be clearly
explained, as must the motivation for refusing to give consent,
before the court will substitute its own consent. The authors
suggest that it must be shown that the consent is being withheld
wilfully, intentionally and
mala
fide
, thus rendering the
withholding thereof unreasonable.
[1]
Having regard to the judgment referred to below, I am not sure this
is correct; the standard seems too high.
[9]
Further, the authors suggest that the court must follow a neutral
approach and formulate a structured value judgment about what
it
considers will be in the best interests of the child.
[2]
Some of the factors that the authors recommend should inform the
exercise of the judicial discretion include “
the
impact of refusing the relocation on the child and on the other
parties, in the context of his/her extended family, education
and
social life
”. I
suggest that this proposition is unimpeachable.
[10]
Both parties relied on the judgment of
LW v DB
, 2015 JR 2617
(GJ), a judgment by Satchwell, J in this Division delivered on 16
November 2015. In that matter a mother applied
for permission
to relocate her 4 year old child from Vanderbijlpark to Cape Town,
where she had been offered a job with a better
salary, and with hours
that allowed her more time with her child.
[11]
In that matter too the parents were not married but had a boy.
Stressing the requirement of the best interests of the
child, the
court underscored that it sits as the upper-guardian of minors; and
that the discretion which is to be exercised is
not circumscribed in
the narrow or strict sense of word. No
onus
, in the
conventional sense, needs to be satisfied when the court determines
whether or not a child can accompany a parent who leaves
the
jurisdiction of the court.
[12]
The learned judge underscored the requirement of section 28(2) of the
Constitution which proclaims that a child’s best
interests are
of paramount importance in every matter concerning the child.
She stressed that the facts of each case are
critically important,
referring to
Jackson v Jackson
,
2002 (2) SA 303
(SCA), and
said (at paragraph [19]):
“
The increasing numbers of
relocation disputes referred to in psychological and legal literature
as also in South African jurisprudence
and that of other
jurisdictions, is a reflection of the increasing trend of
geographical mobility particularly in relation to work,
coupled with
a higher rate of separation or divorce after which former partners go
their different ways.
”
[13]
Listing “
Principles applicable to relocation of children”,
the learned judge said (at paragraph [20]):
“
Where a custodial parent
wishes to emigrate, a court will not likely refuse leave for the
children to be taken out of the country
if the decision of the
custodial parent is shown to be bona fide and reasonable.
”
The
learned judge then went on to consider whether the decision of the
applicant in that case to move to Cape Town from Vanderbijlpark
was
bona fide
and reasonable. I propose to adopt that same
approach in the present matter.
[14]
The two parents of S were – as I have noted - very young when
he was conceived in around the middle of 2014; the applicant
was but
22 years old. Their relationship was a passing one; they
separated just after the boy was born. S has resided
with the
applicant primarily and she is the primary care-giver of the boy, not
in the sense as defined in the Act, but in every
other sense of the
word. It is true that the respondent has exercised contact with
S on a regular basis, but it is equally
true that between the
applicant’s fiancé and S there has developed a very
close and strong and loving bond.
The fiancé loves S and
treats him as if his own son.
[15]
The founding affidavit records a discussion between the fiancé
and the respondent via social media when the applicant
and her fiancé
began making plans to emigrate. That discussion includes the
following text from the respondent to
the fiancé:
“
Thanks bud agreed …
look New Zealand is the way … I just need to make sure that I
am protected as we’re talking
about my son … so just
formalities.
”
[16]
In judging whether the applicant’s decision to emigrate to New
Zealand is reasonable and
bona fide
, I must ask whether that
decision is driven by a desire to exclude the respondent from access
to S, or whether the applicant has
taken that decision reasonably,
having regard to her own future and the future of S.
[17]
In her founding affidavit the applicant explains why she and her
fiancé are keen to emigrate to New Zealand. It
is to
“
create a better life for both ourselves and S. I am
of the real and genuine belief that our life will be far better in
New
Zealand
”. She then sets out the reasons that have
persuaded her and these include generally the quality of life that
the two adults
anticipate in New Zealand. She expects that her
fiancé’s career will grow at a much faster rate in New
Zealand,
and she explains that she stays at home and will continue to
be a stay-at-home mother once they have emigrated.
[18]
She expresses concern about the high crime rate in South Africa (in
an affidavit deposed to before the shocking massacre recently
in New
Zealand) and apart from these considerations says the following:
“
27. Aside from the above, I
want to live with my new husband and have a life with him. We
cannot be expected to have a marriage
and extend our family if we
live in two different countries. It would be unjust in law if I
could not do this because I was
forced to stay behind as a result of
the respondent’s refusal to allow S to travel to New Zealand
with me.
”
[19]
In my view it cannot be said that the applicant’s decision is
unreasonable. She is young and has her life ahead
of her.
She is at an age when it is not uncommon for young people to wish to
enter into a permanent life partner relationship,
so as to secure
stability for the future of their lives. My reading of the
applicant’s case is that she has been afforded
an opportunity
of the kind that do not present often in a young person’s life;
and that if she does not avail herself of
this opportunity, for the
benefit of both herself and her minor son, then she will have missed
the chance to establish a solid
future for her and her boy.
[20]
So far as concerns the question whether she is acting
bona fide
,
the applicant says that the respondent too intends to relocate to New
Zealand in the near future and that his contact with S will
only be
affected for a brief period. In response to that assertion, all
that the respondent says is “
I note the contents of this
paragraph
”.
[21]
Apart from this assertion, the applicant also says that she would
encourage daily telephonic or Skype contact between the respondent
and S, and she says:
“
I give an express
undertaking to promote and encourage the relationship between the
respondent and S whilst we are waiting for him
to reach New Zealand.
”
She
says that as soon as the respondent arrives in New Zealand contact
can occur on a more frequent and structured basis, and that
the
applicant and the respondent’s respective families will come
and visit them in New Zealand on a frequent basis; and that
she will
encourage this. She also says that she and her fiancé
will return to South Africa from time to time to visit
family at
which time the respondent’s family would be able to see S.
[22]
In response to these assertions, the respondent says that he does not
have enough money to enable him to visit New Zealand
four times a
year with annual leave of only 15 days a year. He then goes on
to say:
“
Should I travel to New
Zealand to visit our son I would obviously be required to pay for
airline flights and taxes, accommodation,
food, travelling,
entertainment etc. I dispute the fact that the applicant and my
son would be able to travel back for a
visit or holiday at all in the
foreseeable future, my understanding of these regulations and
citizenship requirements are that
S S would not get a Visa under J’s
name.
”
[23]
It is a matter of some concern that the respondent does not issuably
challenge the assertion that he too has his eyes set on
New Zealand.
[24]
But, as I have said before, ultimately the opposition to the
emigration is that expert evidence has not been put up by the
applicant to explain how the emigration will affect the minor boy;
and the issue as to the stability of the relationship of the
applicant with her fiancé.
[25]
In this regard it was submitted on behalf of the applicant that the
respondent has not identified the particular feature which
ought to
be investigated by such experts; all he has done is to have asserted
generally that the court is the upper guardian and
in South Africa it
relies heavily on experts such as the family advocate and other
professionals to furnish it with, and to be
guided by, their
recommendations after they will have held inquiries and conducted
assessments.
[26]
Generally that proposition is no doubt sound. It does assist,
sometimes immensely, to have an independent third party
interview
minor children and assess the circumstances and living arrangements
of a minor child with both the guardians. But
in this case the
boy is barely 4 years old and it has not been proposed why, as a
matter of some urgency, an assessment –
if a need for one could
be identified – could not already have been conducted at the
instance of the respondent. The respondent’s
point seems to be
rather an obstacle put up as an afterthought, than a real concern.
[27]
Further, it seems to me that the respondent’s expressed concern
is more focussed on whether the applicant’s relationship
with
her fiancé is a steady one. That is of course a valid
consideration; but two points are relevant. The first
is that
it is difficult if not impossible to tell whether a life partner
relationship will stand the test of time. There
is no
suggestion that thus far the relationship concerned has been stormy
in any way.
[28]
The next point is that if it should turn out that the relationship
between the applicant and her fiancé does not lead
to a
marriage and a steady one at that, then there is a real possibility
that the applicant and the son will return to South Africa;
and in
that event contact between the son and the respondent will be more
frequent than it is anticipated it will be having regard
to the
intended emigration.
[29]
In my view, accordingly, absent it having been identified whether S
has a particular concern or aspect that needs to be addressed
by
experts in view of the anticipated emigration of his mother, it seems
to me to be unnecessary to endanger the practical arrangements
that
the applicant needs to take in order to emigrate. These are set out
in the urgent application papers (as opposed to the main
application
papers).
[30]
The applicant explains there that she and S are to arrive in New
Zealand within a period of three months, or a maximum period
of six
months, after her fiance’s arrival in New Zealand. And he has
to arrive in New Zealand no later than 23 April 2019.
The
applicant explains that since both S and she only qualify to relocate
to New Zealand under the auspices of her fiance’s
Visa, it is
evident that neither S nor she will be able to relocate to New
Zealand on their own volition. It follows that
they have to
arrive in New Zealand by latest on 20 October 2019 and a lot has to
be done before that date.
[31]
She sets this out in paragraph 10 of her founding affidavit in the
urgent application. These include applying for S’s
passport
which can take 12 weeks to process; a medical examination upon
receipt of S’s passport, to be submitted to the New
Zealand
authorities; and then the Visa for S and the applicant will take 6
weeks to be processed and issued.
[32]
The applicant anticipates that barring any problems, that entire
process would take approximately 5 months; and says that if
she is
not in New Zealand by 20 October 2019, S and she will no longer be
able to travel to New Zealand as her fiance’s dependants.
[33]
These last-mentioned circumstances also persuaded me that the matter
was urgent and that I should hear it out of term despite
the
respondent’s opposition to it.
[34]
In the result I am persuaded that the application must succeed, and I
make an order in terms of the draft which I have marked
“X”,
initialled and dated, and in which I have deleted the proposed
paragraph 6 dealing with costs.
____________________
WHG van der Linde
Judge,
High Court
Johannesburg
Date
argued: 9 April 2019
Date
judgment: 11 April 2019
For
the applicant: Adv W J Bezuidenhout
Instructed
by: McCabe Burnett Inc
Applicant’s
Attorneys
Tel:
(012) 941 2260
Fax:
086 5567 686
Email:
emma@mccabeattorneys.co.za
Ref:
Ms Burnett/M441
3
rd
Floor, 476 Kings Highway
Lynnwood
Pretoria
c/o
Kern Attorneys
95
– 7
th
Street
Parkhurst
Johannesburg
For
the respondent: Adv N Terblanche
Instructed
by: M J Lombard Inc Attorneys
Respondent’s
Attorneys
c/o
Louw da Silva and Du Preez Attorneys
Suite
16, Aloe Building
Savannah
Office Park
Corner
9
th
Avenue and Ruby Street
Weltevreden
Park
Tel:
(012) 346 4612
Ref:
FAM271
[1]
See page 43
[2]
See page 372