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[2010] ZAECPEHC 71
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Lin v Director: Dept of Iinternational Relations Co-operation (3207/2010) [2010] ZAECPEHC 71 (30 November 2010)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE, PORT ELIZABETH)
CASE NO. 3207/2010
DATE
HEARD: 16/11/2010
DATE
DELIVERED: 30/11/2010
In
the matter between
ELIZE
LIN APPLICANT
and
THE DIRECTOR: THE DEPARTMENT OF
INTERNATIONAL RELATIONS AND
CO-OPERATION RESPONDENT
JUDGMENT
ROBERSON J
[1] The applicant is married to one
Wenkang Lin (Lin), a Chinese national. There is one child born of
the marriage, W K L (W),
a boy, born on 20 August 2005, in South
Africa. W currently resides in the People’s Republic of China
(China). The applicant
resides within the jurisdiction of this Court
and Lin currently resides in Durban.
[2]
The applicant has applied for an order in the following terms:
It is hereby declared that Elize Lin,
with identification number, is the holder of full parental
responsibilities and rights in
respect of the minor child W K L,
with identification number currently residing at Room 301 and Room
906, Hengpai Street, Shunan
Yanping District, Nanping City, Fujian
Province, in the People’s Republic of China and that the said
Elize Lin has the
right to have primary care of the said W K L in
South Africa.
The Registrar of the Eastern Cape
High Court, Port Elizabeth be requested to forward the order to the
Department of Justice, Pretoria.
The
Department of Justice, Pretoria is to request the Department of
International Relations, Pretoria, to deliver the order to the
relevant authorities of the People’s Republic of China.
The
Department of International Relations and Co-operation, Pretoria, is
requested to assist the said applicant to seek the co-operation
of
the People’s Republic of China for the return of the said child
to South Africa and to place the child in the primary
care of the
Applicant.
[3]
The application has been brought without notice to Lin. The
respondent (the Department) abides the decision of the Court.
[4]
In her founding affidavit, the applicant recounted the background
leading up to the application. She met Lin during 2002,
in South
Africa, and they were married in South Africa on 20 September 2003.
Not long after the marriage there was marital conflict
which the
applicant attributed to cultural differences between her and Lin.
[5]
During February 2006 Lin the applicant discovered that Lin was
involved in certain criminal activities. Lin warned the applicant
that if she reported his criminal activities to the police, he would
make sure she would never see W again.
[6]
During February 2008 the applicant, Lin, and W traveled to China to
meet Lin’s family. Lin told the applicant that
he intended to
purchase a house in China and that it was his mother’s wish
that W should live in China. The applicant told
Lin that she would
not agree to such an arrangement and that she intended to raise W
herself.
[7]
The family returned to South Africa during March 2008. Lin
continued to insist that W should move to China, because he was
of
the view that South Africa was dangerous and not conducive to
William’s wellbeing. He wanted W to live permanently in
China
and to be educated in China.
[8]
During May 2009, the applicant, Lin, and William, again traveled to
China to visit Lin’s family. Lin only booked a
one way ticket
to China for William, claiming that he had insufficient funds for a
return ticket. He promised that he would book
a return flight for W
to South Africa when he had the funds. He also told the applicant
that she and W could return to South Africa
if they were not happy in
China.
[9]
On 11 May 2009, the applicant accompanied Lin and his mother to an
office where Lin told her to sign certain documents which
would allow
W to attend school in China. The applicant was not given an
opportunity to read the documents and Lin threatened that
if she
refused to sign she would never see W again. The documents, together
with William’s passport, were given to Lin’s
mother and
locked in a cupboard to which the applicant had no access. Lin
eventually gave her copies of the documents, which turned
out to be
an agreement in terms of which the applicant and Lin agreed to Lin’s
mother being the “entrusted guardian
to the fostered person
before he is eighteen years old” (W was the fostered person
named in the document). Lin’s mother
was given the
responsibility of looking after William’s “daily life and
other matters” and the applicant and
Lin could not terminate
the agreement before W reached the age of eighteen years. The
agreement was notarised by a notary. A
document headed “Guarantee
of Foster” was signed by Lin’s mother, in which she
accepted the responsibility to
foster W and to be his guardian. She
stated in the document “because my son and daughter-in-law are
very busy in South Africa,
they sent their son back to China and
entrusted me to foster their son”. When the applicant received
the documents she noticed
the word “foster” in the
documents but because she was not fluent in English she did not
understand what “foster”
meant.
[10]
On 2 June 2009 Lin returned to South Africa. The applicant remained
in China with William, where W attended school. It became
clear to
the applicant that Lin’s mother wanted to take control of W and
they argued constantly about his upbringing.
[11]
The applicant approached the South African Embassy and the Consulate
in China for assistance, but to no avail because she
could not
communicate with them properly. As the date of her return to South
Africa approached, it became clear to her that Lin
had never intended
that W return to South Africa.
[12]
On 16 October 2009 Lin’s mother left to visit her niece,
taking W with her. She refused to allow the applicant to accompany
them, despite the applicant’s entreaties. That was the last
time the applicant saw William.
[13]
The applicant returned to South Africa on 23 October 2009 and lived
with Lin in Durban. When she told Lin that she wanted
W to return to
South Africa, he said that as William’s father he was able to
decide what was best for W and that the applicant
had no say in
William’s life. When the applicant communicated with William,
he would cry and tell her he wanted to return
to South Africa to be
with her. Since July 2010 she has not been allowed to have contact
with William.
[14]
On 2 April 2010 Lin traveled to China and told the applicant that if
she wanted to go as well she would have to pay for her
own ticket.
She was not able to do so because she was unemployed. Lin told her
that he was going to China to attend to William’s
visa and
other matters.
[15]
On 4 May 2010 she telephoned Lin (presumably he was still in China)
wanting to know why he had not contacted her, and his
response was to
swear at her and tell her to leave his home, and that she would never
see W again. She moved to live with her
parents in Humansdorp and
thereafter Lin refused to answer her calls.
[16]
Presently W attends school in China, and is cared for by his
paternal grandmother and his aunt. His visa expired on 13 May
2010
but the applicant believes that Lin had it illegally extended,
because he has contacts in the Department of Home Affairs in
South
Africa and China.
[17]
The applicant has requested help from the South African Police
Service, Interpol, the respondent, and the Office of the Family
Advocate, which office referred her to the Port Elizabeth Justice
Centre, her attorneys of record in this application.
[18]
The applicant fears that if Lin was given notice of this application
he would instruct his family to send W into the Tibetan
mountains,
which he has previously threatened to do, or to arrange for William’s
disappearance. The applicant says that
she cannot institute divorce
proceedings at this stage as it would be apparent from her
particulars of claim that she seeks an
order that she be William’s
primary caregiver.
[19]
The applicant maintains that W was born and raised in South Africa,
that South Africa is his country of habitual residence,
that he is
being wrongfully retained in China and that it is in his best
interests to be returned to South Africa.
[20]
The Department became involved in this matter following an approach
by the applicant’s attorneys. A Deputy-Director
of the
Department indicated that if a South African Court granted interim
custody of W to the applicant and requested the Chinese
authorities
to return the child to South Africa, such order and request would be
conveyed to Chinese authorities through diplomatic
channels.
[21]
The Hague Convention on the Civil Aspects of International Child
Abduction provides inter-country assistance for signatory
countries,
in instances where a child has been wrongfully removed from the
country of his/her habitual residence, to another country.
South
Africa is a signatory to the Hague Convention but China is not, and
this avenue of relief is therefore not open to the applicant.
Primary
care
[22]
By virtue of their marriage, the applicant and Lin both have full
parental responsibilities in respect of William. (Ss 19
and 20 of
the Children’s Act 38 of 2005 (the Act).) In seeking an order
that she be declared the primary caregiver of William,
the applicant
is effectively seeking an order in terms of s 28 (1)(b) of the Act,
namely a circumscription of Lin’s parental
responsibilities. S
29 (1) of the Act provides that such an application must be brought
in the court within whose jurisdiction
the child is ordinarily
resident, and s 29 (3) of the Act provides that the application may
be granted only if it is in the best
interests of the child. S 7 (1)
of the Act sets out factors which must be considered in determining
what is in the best interests
of the child.
[23]
W is not ordinarily resident in this Court’s jurisdiction and
on that ground alone the application cannot succeed.
The applicant’s
other difficulty is that a final order for primary care cannot be
obtained by way of an ex parte application.
In order for the Court
to consider the best interests of the child, the circumstances of
both parents, and William, have to be
fully investigated. There is
no point in even beginning to consider what William’s best
interests are, in view of the fact
that the only evidence available
is that of the applicant. One does not even know what her
circumstances are and whether or not
she is a suitable primary
caregiver. This is not, for example, a case where there is an
existing order for primary care and the
other parent has failed to
comply with its terms.
Return
of W to South Africa
[24]
The real purpose of the application is to ensure W’s return to
South Africa. This is apparent from prayer 4 to the
notice of motion
and from the applicant’s statement in her founding affidavit
that:
“
This
is an application for the return of our minor child, W K L, a boy
born of a marriage relationship between myself and Wenkang
Lin, on 20
August 2005, from the People’s Republic of China.”
By
involving the Department, the applicant seeks to try to enforce this
Court’s declaration that she is W’s primary
caregiver, in
China.
[25]
Even assuming that W was unlawfully removed by Lin to China, or is
being unlawfully retained there, the fact is that he is
not present
within this Court’s jurisdiction and this Court therefore does
not have jurisdiction to order his return to the
applicant in South
Africa. (See
Boberg’s
Law of Persons and the Family 2
nd
edition at 571, and
Di Bona
v Di Bona
1993(2) SA 682
(C) at 695E-F.)
The
applicant’s remedy seems to be to seek an order in China for
William’s return to South Africa.
[26]
There is no legal basis on which the applicant is entitled to any of
the relief prayed, in the manner in which she has brought
this
application. Perhaps the applicant should reconsider her decision
not to institute divorce proceedings and seek legal advice
in this
regard.
[27]
The application is dismissed and there is no order as to costs.
________________
J.M.
ROBERSON
JUDGE
OF THE HIGH COURT
Appearances:
Adv. V Naidu, instructed by the Port
Elizabeth Justice Centre.