181093/2025/ fvs JUDGMENT
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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted
from this document in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NO : 181093/2025
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES : YES / NO
(3) REVISED
In the matter between
10
R[…] W[…] K[…] APPLICANT
and
K[…] A[…] M[…] FIRST RESPONDENT
(PREVIOUSLY M […])
THE DIRECTOR GENERAL
DEPT OF HOME AFFAIRS SECOND RESPONDENT
J U D G M E N T
20
MAKUME , J: This matter commenced before me as an
urgent application on the 14 th of October 2025. On the 15 th
of October 2025 I made an order which is annexed hereto
as annexure X which has been uploaded on CaseLines.
What follows hereunder are my reasons for that order.
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In the application, the applicant sought an order that
the requirements contained in Section 18(3)(iii) of the
Children's Act 38 of 2005, in terms of which the first
respondent's consent is required to remove the minor child
T[…] W[.. ] K[…], born on the 8th of January 2012, ( the
minor child ) is dispensed with.
The other ancillary prayers are that the requirements
set out in Regulation GNR784/ 1986 which requires a minor
child to produce written consent from both parents so that
the minor child be granted a passport, also be dispensed 10
with, and lastly, that applicant be permitted to apply for any
Visa for the minor child to enable the minor child to travel
with applicant outside the Republic of South Africa.
Background facts
I deal first with the exposition of the background facts
and circumstances leading up to this application, including
a chronology of events and correspondence exchanged .
The minor child was born on the 8th of January 2012
from a romantic relationship that existed then between the
applicant and the first respondent. When the relationship 20
soured, the parties concluded a parenting plan in respect of
the minor child.
The parenting plan, which was made an interim court
order by the Children's Court on the 7th of June 2023, was
confirmed by the family advocate in her report dated the
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30th of November 2023. The final details of that plan are
not necessary, save to indicate that both parties retained
full parental rights and responsibilities in respect of the
minor child, as contemplated in Section 18 of the Children's
Act. Also that the applicant was granted primary residence
of the minor child.
The parenting plan was concluded as a result of the
fact that the first respondent had already relocated
permanently to Bal lito in Kwa Zulu Natal . T he minor child
had been in the care of the applicant since about January 10
2022, when the respondent relocated.
In the court order supported by the parenting plan, the
respondent has contact rights to the minor child at varying
times and periods, which includes school holidays as well
as telephonic and WhatsApp correspondence.
The issue about applying for a passport for the minor
child commenced with WhatsApp correspondence on 9 June
2025 between the parties. The applicant requested the first
respondent to send to him a copy of her identity document .
The first r espondent had no difficulty and said “ I wi ll send a 20
copy of it as soon as I am home. ” This was at 18H 24 on the
9th of June 2025.
On the 13th of June 2025, at 11H 15, the first
respondent sent a copy of her identity document to the
applicant with the following message: “Please use it only
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for the passport application. A nything else I do not give
you consent to use it. ”
The first respondent confirmed that on the 24th of
September 2025, the applicant contacted her telephonically
and told her that he intends traveling to Germany with the
minor child during January 2026. The first respondent says
that she needed time to consider the request and
information and would revert.
On the 25th of September 2025, discussions took place
involving the applicant, the respondent, as well as the minor 10
child. The applicant informed the respondent that he had
made arrangements that the two of them meet at the
Standard Bank in Johannesburg on the 3rd of October 2025
and inquired when the respondent would come up to
Johannesburg. It is at that meeting also as per the
respondent's answering affidavit where the minor child
asked her if he can go on holiday in Germany with his
father. The respondent did not respond positively . She
instead told the minor child that she is still in discussions
with the applicant and will get back to him. 20
The respondent reneged on her earlier agreement to
come up to Johannesburg so as to complete the necessary
documents to enable the minor child to be issued with a
passport. Instead the respondent sent a WhatsApp
message to the applicant which reads as follows:
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“The only way I will sign or do anything is if he
comes to live with me permanently from 1st of
January 2026.”
It is that response that prompted the applicant ’s
attorneys to address a letter to the respondent on the 30 th
September 2025. In that letter the attorneys had attached a
consent form which the respondent was required to sign and
send back to, to them by the 1 st of October 2025. The
applicants attorneys warned the respondent that if no
response is received then the applicant will launch an 10
urgent application and seek necessary relief in terms of the
Children’s Act.
That letter was followed by numerous calls and
WhatsApp messages which the respondent ignored and
ultimately sent the following message on WhatsApp:
“Good morning.
I will lay a charge of harassment if I continue
getting calls and messages whilst I am trying to
work. My lawyer and I will get back to you as soon
as we have gone through everything. ” 20
The response from the first respondent clearly indicated
that she had now changed her mind and was no longer
prepared to join the applicant in applying for a passport for
the minor child.
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On the 3rd of October 2025 the applicant launched this
urgent application in terms of Rule 6(12) of the Uniform
Rules of Court and set same down for hearing on the 14th
of October 2025 at 10 in the morning.
On the 7th of October 2025, the respondent's attorney s
Mrs NLA Inc, addressed a letter to the applicant's attorney
raising a number of issues that had nothing to do with the
request for consent but ended up in paragraph 5 of that
letter by informing the applicant's attorney that their client
is now prepared to consent to the minor child travelling to 10
Germany and said nothing about consent to travel to
Australia.
The applicant’s attorneys then informed the
respondent’s attorneys that they will not ask for costs if the
respondent consent to the order as set out in the notice of
motion. Instead of responding to that the respondent then
filed a notice to oppose the application and then followed it
up with a lengthy answering affidavit on the 10
th of October
2025.
In the answering affidavit the respondent took issue 20
with the aspect of urgency at length and then dealt with the
merits, ending up in paragraph 78.14 of her affidavit, by
saying the following:
“The applicant’s attorneys was informed formally by
my attorney telephonically, and in writing, on the
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6th and 7th of October 2025, respectively, that I
would consent to the travel of the minor child.
Despite this, an urgent application was launched,
on abusive time periods and for completely
different relief. ”
The respondent only indicated her consent after the
urgent application had been launched and served, besides
having been warned of that on the 30t h of September 2025.
I am satisfied that the application is ur gent, hence I
allowed the parties to address the court on the merits, 10
which both parties did fully, after having exchanged,
answering and replying affidavits. The applicant complied
fully with the practice directive and afforded the respondent
ample time to respond.
In the heads of arguments supported by the draft order,
the first respondent asked in the alternative that the
application be dismissed and yet follows up with a tender
that mirrors to a large extent the applicant's notice of
motion. I think this is nothing but an abuse of the process.
In dealing with the merits of the application, the first 20
respondent blows hot and cold. She says that it is not in the
best interest of T […] to travel overseas , she says that it is
not in the best interest of T […] to travel overseas with the
applicant, because she views this as a disguised permanent
relocation, and yet confirms that her attorney, when
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speaking to the applicant's attorneys, con ceded that it is
not correct to suspect that the intended holiday is a
disguised relocation.
Is it in the best interest that the minor child travels to
Germany and Australia with the applicant for the period
of 4 th to 11 th January 2026
Having dismissed the point that the application is not
urgent, I now deal with the number one requirement which
is anchored both in Section 28 of the Constitution of the
Republic of South Africa, as well as in various sections of 10
the Children's Act, which is the best interest of the minor
child.
Once again, the first Respondent , in dealing with this
aspect in her short heads, says the following in paragraph 9
thereof :
“Besides the factors of Section 7 in the Children's
Act, for a final order of this kind, Sections 9 and 10
need to be followed. To date, this has not been
done and there is no voice of the child's
assessment for such relief. ” 20
It is common cause that both Sections 7 and 9
emphasize the principle of the best interest of the child. On
the other hand, Section 10, which deals with the child's
participation, reads as follows :
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“Every child that is of such an age, maturity and
stage of development as to be able to participate in
any matter concerning that child has the right to
participate in an appropriate way and views
expressed by the child must be given due
consideration. ”
The first respondent , in her own words , at paragraph 24
of her answering affidavit confirms that the minor child did
ask her if he can go on holiday to Germany in January and
she responded that she is still thinking about it. It is 10
therefore clear that the minor child expressed a view and a
desire to travel on holiday to Germany with his father. ”
This, in my view, was in compliance with Section 10 to
which he got no response until after this application was
launched.
I agree with the applicant's submission that the relief
sought by the applicant does not impact the r espondent's
relationship with the minor child. It pertains solely to the
waiver of the r espondent's consent and cooperation in
respect to the passport, in respect to the passport. The 20
passport, V isa and travel abroad. The relief is designed to
promote the interest of the minor child.
The respondent , in her own affidavit , once more at
paragraph 40 exposes her dilatory conduct in addressing
the issue of consent. In paragraph 40, she says that it was
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only after consulting with her attorneys that she became
convinced that it would be good for T [..] to travel to
Germany with his father to experience another culture. It is
clear that up until that time, she was withholding consent on
the basis that this was a disguised relocation for which she
had no proof .
Paragraphs 7.1.1 up to 7.1.1.6 of the notice of motion,
provided, provided sufficient proof and reassurance that
there was no intention to relocate overseas permanently
with the minor child. 10
In the matter of In re: X.S (7265/2024) a decision by
GAISA AJ , delivered on the 18th of July 2024, by the
Limpopo Division of the High Court, the following was said
at paragraph 55:
“In B ailey (supra) the Court reaffirmed that the
child's best interests are paramount in relocation
cases. While this is not a relocation case, the
principle directly applies to it, as the C ourt must
consider whether allowing X.S. to travel to USA for
the academic achievers' tour within the mentioned 20
period is in her best interest. ”
The first respondent has been acting mal efide by
initially agreeing to the passport application, and to that
extent even sending a copy of her identity document to the
applicant, only to later withhold, same and requiring that
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the applicant should agree to the minor child staying with
her permanently from January 2026.
The minor child asked her directly. She did not say no
or yes. She said : “ I will come back to you” , as she is still
thinking about that. She knows that time was not on the
side of the applicant, as applications for passports and
Visas take some time, and yet she still had the luxury to put
things on hold. In my view, her intention was to frustrate
and delay as much as possible, so that the trip does not
take place, as she wants T […] to come and stay with her 10
permanently.
The Supreme Court of Appeal, Scott J A. in Jackson v.
Jackson [2001] ZA SCA 139, held that :
“The fact that a decision has been made by the
custodian parent does not give rise to some sort of
rebuttable presumption that such decision is
correct. The reason why a Court is reluctant to
interfere with a decision is correct. The reason why
a court is reluctant to interfere with a decision for a
custodian parent is not only because the custodian 20
parent may, as a matter of fact, be in a better
position than the non- custodian parent . I n some
cases, to evaluate what is in the best interest of a
child, but more importantly, because the parent
bears the primary responsibility of bringing up the
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child should, as far as possible, be left to do just
that. It is, however, a constitutional imperative that
the interest of children remain paramount. That is a
central and constant consideration. ”
In the result I am satisfied that a proper case has been
made by the applicant in the best interest of the minor
child, not the best interest of the parties. The draft order,
marked X, which has already been made an order of court,
is annexed hereto.
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…………………………..
MAKUME , J
JUDGE OF THE HIGH COURT ,
GAUTENG DIVISION, JOHANNESBURG
Date of hearing 14 th October 2025
Date of Judgment 3 rd November 2025 20
For the Applicant Adv Lizzelle Venter
For the respondent Adv S J Martin
TRANSCRIBER’S CERTIFICATE
R[…] W[…] K[…]//LESLEY ANN MATTHIESEN
I, the undersigned, hereby certify that so far as it is audible to
me, the aforegoing is a true and correct transcript of the
proceedings recorded by means of a digital recorder in the matter
between the parties stated above:
CASE NUMBER : 181093/2025
RECORDED AT : PRETORIA
DATE HELD : 2025- 10-28
NUMBER OF PAGES : 13
TRANSCRIBER: MRS F VAN SCHALKWYK
DATE COMPLETED: 2025-10-30
TRANSCRIBER’S NOTES / PROBLEMS EXPERIENCED