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IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN
Case number: 4146/24
In the matter between:
J[…] J[…] S[…]
Applicant
and
R[…] S[…]
Coram: Acting Justice A Montzinger
Heard: 31 July 2024
Delivered electronically: 02 August 2024
Respondent
REASONS FOR ORDER
Montzinger AJ
1. When estranged or divorced parents claim to act in the best interest of the
child, yet engage in conflict, they inadvertently subject the child to emotional turmoil.
Our courts have on numerous occasion 1 expressed views to the effect that such
conflicts d isrupt the child's stability and security, causing confusion, anxiety, and
divided loyalties. True consideration for the child's best interests requires parents to
collaborate and shield the child from their disputes, prioriti sing the child's emotional
and psychological well-being above their own conflicts.
2. The matter came before me as a postponed urgent application seeking relief
concerning the respective parties’ parental rights and responsibilities regarding their
minor child born of the failed marriage between them. Although the parties
concluded a settlement agreement incorporating a parenting plan that regulates their
parental responsibilities, rights, and access to the minor child, the applicant alleged
that the respondent was unreasonable in withhold ing her consent when he wishes to
exercise his right to take the minor child on overseas holidays.
3. Initially, when the matter came before Sidaki AJ on 5 March 2024, the
applicant sought quite extensive relief. In the notice of motion, an order in more or
less the following terms was sought:
3.1 Limiting alternatively suspending the respondent’s parental right s and
responsibilities as envisaged in sect ions 18 and 19 of the Children’s Act 2 until
the minor child reaches the age of majority.
3.2 Declaring the applicant the sole decisionmaker regarding holiday
arrangements outside the Republic of South Africa for holiday purposes.
3.3 Authorising the applicant a s the sole signatory in respect of any
documentation or application submissions required for the minor child to leave
the Republic for holiday purposes.
1 See for similar sentiments: F v F 2006 (3) SA 42 (SCA)
2 38 of 2005
4. In the alternative the applicant sought the following relief:
4.1 The respondent’s consent to the removal of the minor child as required
by s 18(3)(c)(iii) read together with s 18 (5) of the Children’s Act be dispensed
with.
4.2 The respondent’s consent to travel in respect of the minor child in
terms of Regulation 6(12B) of the Immigration Regulations iss ued in terms of
section 7 of the Immigration Act, 13 of 2002 (the “Immigration Act”) be
dispensed with.
4.3 The respondent’s consent and / or signature and / or presence be
dispensed with if required, for the signing of:
(i) Any travel documents (including visas ) or application
submissions required for the minor child to leave from the Republic of
South Africa for holiday.
(ii) Any documentation that may be required for the minor child to
travel internationally for holiday.
(iii) All such necessary documentation as may be required by the
minor child from time to time in relation to any travel visas and / or
renewal of his passport to enable him to travel to other countries on
holiday.
4.4 Authorising the applica nt to be the sole signatory and applicant in
respect of any docum entation or application submitted in terms of Regulation
6(12B) of the Immigration Regulations issued under section 7 of the
Immigration Act.
5. At the beginning of March 2024 the applicant envisaged the relief to be
granted in respect of all future holidays he was entitled to under the agreed parenting
plan until the minor reaches the age of majority.
6. I mentioned earlier, t he matter came before Sidaki AJ on 5 March 2024, and
he made the following order, which was by agreement between the parties . Dul y
paraphrased the order provided for the following:
6.1 Suspending the respondent’s parental rights and responsibilities
envisaged in s 18 and 19 of the Children’s Act, 38 of 2005 , solely for the
purposes set out in the order, from 5 March 2024 until 3 April 2024 (the
“March-April 2024 holiday”).
6.2 Declaring the applicant the sole authorised caretaker and signatory
solely for purpose of the holiday arrangements outside the Republic of South
Africa for the scheduled March-April 2024 holiday in terms of the itiner ary
attached as annexure JS 5 to the founding affidavit.
6.3 Further authorising the applicant as sole signatory in respect of any
documentation or application submissions required for the minor child to leave
the Republic for the March-April 2024 holiday purposes and dispensing with
the respondent’s need to consent to travel in respect of the minor child in
terms of Regulation 6(12B) of the Immigration Regulations issued in terms of
section 7 of the Immigration Act3, for the March-April 2024 holiday.
6.4 The applicant was obliged to ensure the respondent has a direct line of
communication with the minor child between 20 March 2024 and 2 April 2024.
7. The Sidaki AJ order also made provision for the filing of further papers and
postponed the matter for hearing on the semi-urgent court roll for hearing on 12 June
2024.
8. According to the papers, and as informed from the bar, the March -April 2024
holiday occurred without incident.
3 13 of 2002
9. Long after the March-April 2024 holiday had come and gone, the respondent
filed an answering affidavit. As is common in these types of proceedings, where the
resolution of the divorce was steeped in acrimony, every post -divorce engagement
or court intervention by either of the parties to assert their rights is always seen by at
least one of the parties as an opportunity to air every possible grievance he or she
may have had with each other in the past. In this case, it was no different, with the
respondent taking it upon herself to provide the court with a mountain of information
that on the face of it was not pertinent to relief the applicant was seeking. Also, it was
evidently an attempt to focus the court’s attention on the historic issues, even prior to
their acrimonious divorce, between her and the applicant.
10. The respondent’s intention was demonstrated by the filing of a n answering
affidavit with annexures consisting of almost 200 pages on 12 June 2024. The
applicant, on 15 May 2024, filed a terse replying affidavit i n an attempt to focus on
the issue he initially approached the court for, albeit with some variation.
11. Not being deterred, the respondent launched an application on 2 June 2024 to
be allowed to file a further supplementary answering affidavit. This affidavit and
annexures consist of 332 pages.
12. The respondent’s answering affidavit and the intended supplementary affidavit
made wide-ranging allegations regarding possible abuse by the applicant of the
minor. A high -level overview of the respondent’s answering and supplementary
affidavits puts me at ease that most of the allegations are deductions and
conclusions which the respond ent hopes the court will see from her perspective.
There is nothing, in my view, that raises immediate concern about the manner the
applicant conducted himself in respect to the minor child. Criticism of how parents
interact and manage their relationship w ith their children after a divorce, especially
an acrimonious one, should be seen for what it is: an attempt at self -justification and
vindication.
13. While a court cannot disregard the concerns raised by either parents, and
while every case requires a consi deration of its own context and f acts, I am of the
view that in this case the relief the applicant sought was fairly focussed. Considering,
the history between the parties, the age of the minor child and the existent parental
arrangement between the partie s in respect of the minor child, the court has to be
cautious to simply adhere to a voluminous complaint where the respondent has not
used her right to complain and approach a court earlier.
14. It is rather ironic, that the applicant is complaining that the respondent is being
obstructive by not providing her consent, and instead of providing the consent the
respondent reacted with a barrage of allegations against the applicant. This
approach by the respondent is ironic as she has consented to at least three oversea
holidays previously without raising the issues which she has now raised in the
answering and supplementary affidavits.
15. The matter came before Acting Judge President Goliath on 12 June 2024.
She decided to direct the office of the Family Advocate to do an investigation. It is
implicit in the order that the AJP rather decided to act prudently, having regard to the
allegations. An order was issued directing the Family Advocate to report to the court
in respect of:
15.1 Alleged parental alienation or abu se in respect of the minor child by
either of the parties.
15.2 The future implementation of the settlement agreement between the
parties.
15.3 Whether the respondent’s parental rights and responsibilities should be
suspended insofar as they relate to the Responden t having to authorise the
applicant’s proposed travel (presumably meant to read ‘with the minor child’)
outside of South Africa.
16. The Acting Judge President postponed the matter to 31 July 2024 for hearing
and the Family Advocate was also required to file its report before the
aforementioned date.
The proceedings on 31 July 2024
17. On this date I was informed by the legal representatives that the Family
Advocate’s report was not ready. Given this development, the parties took two
diverse approaches regarding the further conduct of the matter. Mr. Pincus SC, who
appeared for the respo ndent, impressed upon me that the matter should be
postponed, while Ms. Van Zyl for the applicant insisted that the matter be heard.
18. I was tasked with having to decide the applicant’s application as set out in the
notice of motion. There was no counter -application before me that required me to
first determine the eligibility of the parents to exercise their respective parental rights
and obligations . The A cting Judge President’s order also d id not appear to me to
limit me from continuing to consider the initial basis for the application.
19. It may be that the Family Advocate may make a finding that will have an
impact on the applicant and respondent’s ability to exercise their parental rights.
While in normal circumstances the approach would be to simply roll the matter down
the road and wait for the outcome of the Family Advocate’s investigation, I do not
believe that in this matter it would be rational for me to simply take the easy way out.
So, while I seriously considered Mr. Pincus SC’s submissions tha t a postponement
would be the most prudent approach, I declined to do so.
20. One of the motivations for the applicant approaching the court is that the
administrative requirement to travel is demanding and unpredictable, and it is for that
reason that he rather wants certainty to make the necessary travel arrangements.
21. After hearing the parties legal representatives and having considered the
papers filed, I decided to issue the order that was marked ‘X’ . In addition to the
argument in court and prior to me issuing the order both counsel submitted additional
notes on 1 August 2024.
22. I was of the view that it would be a good use of the court’s resources to
decide the issue that is before me. This will also p rovide a degree of certainty to the
applicant, although there is the possibility that the court could at any time intervene if
subsequent investigations reveal serious concerns about the parties’ conduct in
respect of the minor child.
23. I first address the legal considerations that I took into account and then I
address the facts in support of the application.
The legal considerations
24. As mentioned, the applicant approached this court in terms of sections 18, 19
and 28 of the Children’s Act read with regulation 6(12B) of the Immigration
Regulations issued in terms of s 7 of the Immigration Act.
25. Section 18 outlines the comprehensive parental responsibilities and rights
that a person may have concerning a child. These i nclude the responsibilities and
rights to care for the child, maintain contact, act as guardian, and contribute to the
child's maintenance. The section emphasises the independence of each guardian in
exercising these rights, except where a competent court dictates otherwise,
particularly in crucial decisions where all guardians' consent is necessary.
26. For present purposes the focus is on ss 18(5). The relevant subsection
provides that:
“(5) Unless a competent court orders otherwise, the consent of all the p ersons
that have guardianship of a child is necessary in respect of matters set out in
subsection (3)(c).”
27. The matters covered by subsection 3(c) includes at (iii) the consent to the
child’s departure or removal from the Republic.
28. Section 19 focuses on the parental responsibilities and rights of biological
mothers, granting them full parental responsibilities and rights irrespective of marital
status.
29. Regulation 6 of the Immigration Regulations provides detail for the admission
and departure of children traveling into or out of the Republic of South Africa.
Relevant for this matter t he key points regarding traveling with children are as
follows:
29.1 When parents are traveling with a child, they must produce an
unabridged birth certificate that includes the particulars of the child's parents.
29.2 If only one parent is traveling with a child, the following documents are
required:
(i) An unabridged birth certificate.
(ii) An affidavit from the other parent authorizing travel.
(iii) A court order granting full parental responsibilities and rights or
legal guardianship, if applicable.
(iv) A death certificate if the other parent is deceased.
30. Regulation 6 mandates that a parent traveling alone with a child or a non -
biological companion must provide affidavits of consent, court orders, or death
certificates to establish their right to travel with the child. This regulatory framework
ensures that no child can leave the country without the explicit and verified consent
of their legal guardians, thereby safeguarding the child's inte rests and preventing
unauthorised or potentially harmful travel.
31. However, what if one parent wants to travel with a minor child and the other
parent is unreasonable in the manner in which he/she withhold its consent. In this
case the applicant complies wit h two of the three requirements prescribed by
regulation 6. He presumably has the unabridged certificate and has a court order
granting him parental responsibilities. What he requires is the consent from the
respondent to be able to allow him to travel with the minor child . That consent is not
only necessary when the applicant actually arrive at the immigration counters at an
airport, but also when application is made for a visa to be able to travel.
32. The applicant alleged that the respondent is unreasonab le in refusing her
consent to allow him to travel with the minor child. He therefore requires the court to
intervene and order as the upper guardian of all minors consent for the applicant to
depart the Republic and travel with the minor child.
33. Subsection 28(1) of the Children’s Act provides for certain interested persons 4
to apply to the High Court for an order suspending for a period, or terminating, any or
all of the parental responsibilities and rights which a specific person has in respect of
a child; or extending or circumscribing the exercise by that person of any or all of the
parental responsibilities and rights that person has in respect of a child.
34. In a recent judgement 5, Moshaoana J expressed the view that his
understanding of the co nstruction of s 18 of the Children’s Act is that the notion of
the best interest of the child does not feature so prominent in a s 18(5) decision. He
held that the obligation to give or refuse consent lies solely with the parent or
guardian. While this responsibility affects the minor child, the Children’s Act does not
mandate the application of the best interests standard in such decisions.
35. He went further and found that u nlike ss 28(4) of the Children’s Act, which
explicitly requires the best interests of the child to be considered, ss 18(5) does not
prescribe this standard. S ubsection 29(1) of the C hildren’s Act lists the statutory
applications that require the court to be guided by the principles set out in Chapter 2
of the act , but a ss 18(5) application is notably absent from this list. This absence
indicated to Moshaoana J that the best interests standard is not a requisite
consideration in deciding whether to give or refuse consent under ss 18(3) of the
Children’s Act.
36. I do not believe that it is nece ssary for such a debate. Suffice to briefly
express my view that while ss 18(3) of the Children's Act places the obligation on
4 Listed in ss 28(3)
5 LA v EFV (2024-017275) [2024] ZAGPPHC 213 (11 March 2024)
parents or guardians to give or refuse consent for significant decisions affecting the
child, including the child's departure fro m the Republic, it is imperative to interpret
these provisions in conjunction with ss 31(1) of the Children’s Act.
37. Subsection 31(1) mandates that any person making a decision within the
contemplation of s s 18(3) must give due consideration to the views an d wishes
expressed by the child, taking into account the child’s age, maturity, and stage of
development. It seems to me that this requirement inherently involves assessing
what is in the best interests of the child.
38. Even though ss 18(5) does not explicitly prescribe the best interests standard,
ss 31(1) ensures that the child's views are considered, which aligns with the broader
principle that the best interests of the child always reign supreme. This principle is
reinforced by ss 28(2) of the Constitution and embedded throughout the Children's
Act, which unequivocally states that a child's best interests are of paramount
importance in every matter concerning the child.
39. Thus, in my view any application under ss 18(5) must be interpreted in light of
the overarching mandate to prioriti se the child’s best interests. The court, as the
upper guardian of all minors, must ensure that the decision to give or refuse consent
is not merely a procedural exercise of parental rights but a substan tive evaluation of
the child’s welfare. This includes safeguarding against decisions motivated by spite
or personal interest, as these could detrimentally impact the child’s well-being.
40. In conclusion, while a ss 18(5) application will focus on the procedur al aspect
of obtaining consent from all guardians, the best interests of the child remain a
crucial consideration. The court’s intervention to override unreasonable refusal of
consent should inherently involve an assessment of what serves the child’s best
interests, ensuring that this fundamental principle is upheld in all decisions affecting
the child.
41. In light of the above considerations, I have reviewed the allegations,
submissions, and evidence presented by both parties, as well as the preliminary
report of the Family Advocate. Despite the respondent's extensive allegations, there
is nothing in the record that indicates any immediate risk or harm to the child from
the proposed travel arrangements. The evidence does not suggest that the minor
child's best interests would be diminished by granting the order requested by the
applicant.
42. On the contrary, the order ensures that the child can enjoy overseas holidays
without unnecessary administrative obstacles, while also maintaining a line of
communication with the respondent during such trips. Therefore, I find that granting
the order aligns with the child’s best interests, ensuring stability and continuity in the
child’s life while respecting the parental rights and responsibilities of both parents.
The factual considerations
43. There is already an agreement embodied in a court order authorising the
applicant to travel with the minor child outside the Republic . This is evident from
paragraph 4.7.9 of the parenting plan the parties concluded when their final dec ree
of divorce was granted on 4 March 2021. The parenting plan was incorporated into
the settlement agreement and made an order of court. It was therefore not
necessary for me to redetermine the issue of whether the applicant had the right to
take the minor child on oversees holidays.
44. On this aspect, Mr. Pincus SC, in his further note, points out that
subparagraph 4.7.10 of the settlement agreement, which was made an order of
court, requires the applicant to provide the respondent with the necessary letter of
consent for signature withi n 30 days prior to the departure date. Mr. Pincus further
submits that since the aforementioned requirement is contained in a court order, I
cannot circumvent the condition of the settlement agreement, which is an order of
court, by granting a further orde r. I do not agree with the submission for at least the
following factual and legal reasons:
44.1 Subsection 18(4) read with s s (5), allows a court to make an order
regarding specific parental responsibilities and rights concerning a child. The
applicant is simply doing that; instead of taking the law into his own hands, he
approached the court to assist in the form of a court order.
44.2 The respondent has made pertinently clear that she does not want to
assist the applicant with any of the travel arrangements requi red. In an e-mail
by her dated 14 December 2022 and addressed to the applicant she said the
following in response to the applicant’s request to assist in arranging the
necessary administrative requirements for the minor’s child travel:
“…I do not want to be in personal contact or close proximity to you or your
side kick in crime. Exchange of documents, signing of the affidavit together
with the signing of the consent to travel form in front of a commissioner of
oaths cannot take place as per your demand. These kind of encounters
cannot happen at all, So, an alternative arrangement will have to be made.”
44.3 It is pertinently stated in this communication that the respondent does
not want any encounter with the applicant. Unfortunately, the applicant was
unable to get the respondent to agree to the ‘alternative arrangement’ as
suggested by the respondent.
44.4 The applicant then tried numerous attempts to get the respondent to
agree. It was only when this application was launched during March 202 4 that
the respondent acceded to this request for the March-April 2024 holiday.
44.5 Furthermore, the relief is only in respect of a specific holiday.
45. In any event, ss 34(5) of the Children’s Act provides that a parenting plan that
was made an order of court may be amended or terminated only by an order of court
on application by the co -holders of parental responsibilities and rights who are
parties to the plan 6. That is what the applicant is seeking to do with the application
before me.
46. Continuing wit h the facts. The applicant has travelled with the minor child
three times overseas since the divorce, the latest being the March -April 2024
6 See also PF v MD 2013 (1) SA 366 par 28
holiday. It strikes me that the respondent consented to that order and did not insist
on an investigation into the abuse or alienation of the minor child.
47. Although the Family Advocate could not file a comprehensive report as
ordered by AJP Goliath, it did file a preliminary report. The preliminary report
indicated that there was consultation with the applicant, respond ent, and the minor
child. The following is evident from the report:.
47.1 The applicant and respondent should be ordered to attend mandatory
Parenting Skills Classes for more effective co -parenting and communication
pending the investigation. This puts me at ea se as it does not appear that the
immediate fear of the Family Advocate is that of monumental abuse of the
minor child or of the parental responsibilities by either the applicant or the
respondent. At this early stage, the Family Advocate is rather concern ed that
the applicant and respondent are not communicating effectively.
47.2 Recommendations are made regarding possible interim contact
arrangements and reuniting the minor child with the mother, not the possibility
of suspending the parental rights of either party.
47.3 Also, if there was the possibility that the respondent’s allegations might
have some persuasion, the minor child did not use the opportunity to impress
upon the Family Advocate that he felt unsafe or abused by the applicant or
that he is being denied seeing or spending time with the respondent.
48. It is apparent from the papers that the respondent has taken an approach of
rather having limited contact with the minor child. The respondent’s justification for
doing so is not always clear but seem s to be based on sweeping allegations and
conduct by the applicant that is open to many interpretations.
49. There is nothing in the interim report that raises a concern why the applicant
should not be able to travel with the minor child.
50. Moreover, the applicant has a court order that entitles him to travel oversees
with the minor child. That settlement agreement was negotiated and concluded after
15 years of an ongoing divorce.
51. The respondent has agreed to a similar request in respect of the March-April
2024 holiday. If there was a real concern about the applicant’s motives that would
have been the time to rather raise suspicion and not consent to an order allowing the
applicant exactly what he is asking for with this application.
52. The respondent has indicat ed that she wants nothing to do with the applicant
and refuses to engage with him to make arrangements for traveling for the minor
child.
53. There was also reference to a domestic violence interdict. However, it
appears from the papers that it was a 2006 dormant interdict, which the respondents
revived during February 2024, in response to the applicant’s request for her consent
to travel with the min or. It appears to me at the respondent only revived this process
in an attempt to limit the applicant’s to exercise his parental rights and
responsibilities. Furthermore, no substantive information regarding this interdict was
provided, so it is impossible for me to properly engage with as a basis to deny the
applicant his relief.
54. It is better that the applicant rather has certainty regarding the status of his
possible travelling arrangements for himself, his new family and the minor child.
55. These were the factual bases that warranted the issuance of the order in the
terms provided.
The nature of the order to be issued
56. Mr. Pincus SC also alerted me to the fact that should I grant an order while
there may be a future finding on the parental responsibilities and rights of the parties,
the parties will not be able to circumvent the provisions of the order I will grant.
57. In my view the order is simply a temporary suspension and circumscribing of
the respondent’s rights in terms of the parental agreement a s contemplated in
section 28 of the Children’s Act.
58. However, to cater for Mr. Pincus SC’s concern I will make the order subject
thereto that either of the parties as well as the Family Advocate can approach this
court on supplementary papers, if there ar e change circumstances or new facts that
would convince the judge hearing the matter on the postponed date to vary or even
rescind the order I issued.
59. In any event, my approach seems to be consistent with the rights afforded to
the parties in ss 35(5) of the Children’s Act. If my order resulted in the amendment of
the parenting plan nothing prohibits the court hearing the matter on the postponed
date or on application by the respondent to amend terms of the parenting plan again
in terms of ss 35(5) of the Children’s Act.
60. In respect of costs it would be best if the issue stands over for later
determination.
61. In the circumstances I issued the order mar ked “X”, which is not published to
protect the identity of the minor child.
____________________________
A MONTZINGER
Acting Judge of the High Court
Appearances:
Applicants’ counsel: Adv N Van Zyl
Applicant’s attorney: Chris Fick & Associates
Respondent’s counsel: Adv B Pincus SC
Respondent’s Attorney: RM Brown Attorneys