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
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Not Reportable
Case No: 2025-246332
In the matter between:
A[...] T[...] A[...] Applicant
And
L[...] A[...] A[...] Respondent
Coram: DA SILVA SALIE, J
Heard on: 19 December 2025
Delivered on: 19 December 2025
Summary:
Family law – Minor child – International travel – Passport – Citizenship Act s 26B – Best
interests of child – Father authorised to travel with 16 -year-old minor to the United
States and to apply for renewal of South African passport – s 26B applies only t o major
citizens and does not render a court order authorising travel by a minor unlawful – Non-
compliance with passport requirements does not divest a minor of citizenship or bar re -
entry – Return flight and schooling arrangements confirmed – Mother’s con sent
dispensed with – Court, as upper guardian, regulating travel subject to safeguards and
directing cooperation at Department of Home Affairs – Each party to bear own costs.
ORDER
[1] For the reasons stated above, I grant the order attached hereto as “X”.
JUDGMENT
DA SILVA SALIE J:
Introduction:
[1] This is an application by the applicant father for authorisation to travel with his
minor son, J[...] A[...] A[...] (“the minor”), presently aged 16, to the United States of
America and for ancillary relief relating to the application for a South African passport for
the minor. The relief is sought in the context of, and with reference to, the parties’
divorce order granted in 2018 which permits him to have contact with his minor sons.
This application is only in relation to the older sibling. The younger son is presently
aged 13.
[2] The respondent mother opposes the application. Her opposition is primarily
founded on the contention that the proposed travel would be unlawful by reason of
alleged non-compliance with South African citizenship and passport legislation and that
the granting of the relief sought would place this Court in conflict with section 26B of the
South African Citizenship Act 88 of 1995. She is also concerned that without
confirmation of a return flight for the minor, together with the applicant’s encouragement
for him to take up residence with the application in the USA, the applicant may not
return the minor to his residence and primary care with the respondent.
Issues for determination
[3] The issues for determination are:
3.1 Whether the relief sought is consistent with the parties’ 2018 divorce order.
3.2 Whether the proposed travel and ancillary relief are in the best interests of
the minor child as contemplated in section 28(2) of the Constitution.
3.3 Whether the respondent’s reliance on the South African Citizenship Act
and passport requirements renders the relief sought unlawful or impermissible.
Legal framework
[4] It is common cause that South African law requires South African citizens to enter
and depart the Republic on South African passports. This requirement regulates
administrative and immigration compliance.
[5] Section 26B of the South African Citizenship Act provides that a major South
African citizen who enters or departs the Republic using the passport of another country
commits an offence and is liable, upon conviction, to a fine or imprisonment not
exceeding 12 months.
Mischaracterisation of section 26B and passport requirements
[6] The respondent contends that the minor child could be arrested, treated as a
visitor, or barred from returning to South Africa should travel occur without full
compliance with passport formalities, and that this Court would act unlawfully were it to
grant the relief sought.
[7] These contentions are legally incorrect.
[8] Section 26B applies expressly and exclusively to a major citizen. It does not
apply to minor children, does not criminalise a child’s travel, and does not divest a child
of South African citizenship by reason of passport non-compliance.
[9] A South African citizen cannot be rendered a visitor in his or her own country, nor
can such citizen lawfully be excluded from the Republic. At most, non -compliance with
passport requirements may give rise to administrative consequen ces capable of
rectification through established Department of Home Affairs processes.
[10] Section 26B does not render unlawful a Court order authorising international
travel involving a minor child, nor does it place this Court in conflict with statute where
such travel is regulated by appropriate conditions aimed at ensuring compliance with
administrative requirements.
[11] The respondent’s further suggestion that she could incur criminal liability as a
guardian is speculative and unsupported. Criminal liability under section 26B
presupposes conduct by a major citizen, prosecutorial discretion, and a factual matrix
not established in these proceedings.
The role of the Court in regulating travel involving minor children
[12] Courts are routinely called upon to regulate international travel involving minor
children in the context of divorce orders and parental disputes. In doing so, Courts as
the upper guardian of minor children are empowered to grant travel authorisation
subject to conditions safeguarding the child’s return and compliance with immigration
and passport requirements.
[13] Outstanding administrative processes, without more, do not justify the refusal of
travel where such travel is authorised and demonstrably consistent with the child’s best
interests.
Best interests of the child
[14] The respondent’s opposition is framed predominantly in legal and administrative
terms. It does not establish that the proposed travel would be detrimental to the mi nor’s
welfare, safety, or emotional well -being. To the extent that the respondent has
expressed concerns regarding the applicant not returning the minor, it had been
confirmed during argument that a return flight is scheduled for the minor departing the
USA on 6 January 2026 and landing on 7 January 2026. The applicant had also already
paid the minor’s tuition fees for his private school in Cape Town, commencing in
January 2026.
[15] In the circumstances I am satisfied that no evidence is placed before the Court to
suggest that the applicant seeks to frustrate the minor’s return to South Africa or to
undermine the respondent’s parental rights.
[16] The application must be assessed with reference to the minor’s best interests,
rather than conjecture regarding hypothetical future administrative difficulties.
[17] I am satisfied that the minor, escorted by his father on his departure to the USA
for a two week visit and return to South Africa on 7 January 2026 would be in his best
interests and that an ord er permitting him to leave with the following documents would
be acceptable for his departure: (a) receipt issued by DHA for the renewal of his
passport; (b) expired passport; (c) birth certificate; (d) USA passport and (d) this Order
of Court.
Rebuilding relationship with F[...] (J[...]) (aged 13):
[18] It is imperative that a relationship with one sibling, in this case the older son,
must not be at the expense of the younger son. I have raised concerns with the
applicant during the hearing of this matter that a fostered relationship and travel with his
older son would also potentially cause tension between the two siblings and that I am
concerned regarding the lack of relationship between F[...] (J[...]) and his father. I am of
the view that an investiga tion by the Office of the Family Advocate as to the interests
and contact in respect of both minors, and in particular so, as to nurture a continued
relationship between father and both sons would assist this Court in making further
orders to review the needs of the children insofar as the applicant could access both his
sons, including regular electronic and other means of communication and build a
healthy relationship with them. I make provision for that in the order below.
Costs
[19] Having regard to the nature of the dispute, the parties’ ongoing parental
relationship and that the applicant appeared in person, it is just and equitable that each
party bears their own costs.
Order
[20] For the reasons stated above, I grant the order attached hereto as “X”.
__________________________
G. DA SILVA SALIE
JUDGE OF THE HIGH COURT
WESTERN CAPE DIVISION
Appearances
For Applicant: Mr A A[...] (in person)
For Respondent: Adv. K Felix
Instructed by: Karen Botha Attorneys
“X”
19/12/25
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
At Cape Town on Friday, 19 December 2025
Before the Honourable Ms Justice Da Silva Salie
Case No.: 2025-246332
In the matter between:
A[...] T[...] A[...] Applicant
and
L[...] A[...] A[...] Respondent
ORDER
Having read the papers filed of record and having heard the applicant in person
and counsel for the respondent, IT IS ORDERED THAT:
1. The applicant father is authorised and directed to attend at the Department of
Home Affairs, Barrack Street, Cape Town ("the DHA"), at 08h00 on Monday, 22
December 2025 , together with the respondent mother and J[...] A[...] A[...] as well as
F[...] (J[...]) A[...], (the minor children) for the purposes of applying for and obtaining
South African passports (or renewal thereof) for the minor children.
2. The respondent is directed to provide the birth certificates and expired passports
for both children and other documentation as may be necessary to process the
application and to remain in attendance with the minors until a receipt is issued in
respect of both applications. The receipt in respect of J[...]'s application shall be
provided to the applicant immediately, as well as his birth certificate, his expired South
African passport and his present USA passport for the purposes of the travel
arrangements as contemplated herein.
3. The consent of the respondent mother, ordinarily required for the app lication or
renewal for/of a South African passport in respect of the minor children, is hereby
dispensed with, (should she not consent) and this order shall serve as sufficient
authority for the DHA to accept, process and finalise the application.
4. The applicant father is authorised to travel with the minor child to the USA and to
return the minor child to South Africa, such travel being consistent with and not
derogating from the divorce order granted by this Court on 20 February 2018 ("the 2018
order").
5. The consent of the respondent mother J[...]'s travel to and from the USA is
hereby dispensed with, and this order shall serve as sufficient authority for immigration
officials and all relevant authorities to permit such travel.
6. The authorised t ravel shall take place within the period from 22 December 2025
to 6 January 2026, and the applicant father s hall ensure that the minor child is returned
to South Africa on or before 7 January 2026.
7. The applicant father shall, at least 24 (twenty -four) hours prior to departure,
provide the respondent mother with:
7.1. the confirmed flight itinerary (outbound and return) for the minor child;
7.2. the address(es) at which the minor child will reside while in the USA
and
7.3. a contact telephone number at which the applicant father and the minor
child can reasonably be reached during the period of travel.
8. During the period of travel, the applicant father shall ensure that the respondent
mother is afforded reasonable telephonic or electronic contact with the minor child,
having due regard to time-zone differences.
9. The applicant father shall take all reasonable steps to ensure compliance with
applicable immigration and passport requirements relating to the minor child.
10. The Office to the Family Advocate ("the Family Advocate") is to conduct an
investigation and provide a report on care and contact arrangements in relation to the
minor child, and his brother, F[...] K[...] A[...] ("J[...]") (collectively refer red to as “the
minor children”), in particular the applicant father’s relationship with Francis (Jake).
11. The Family Advocate is to deliver its report by no later than Friday, 15 May 2026.
12. The application is postponed to Monday, 15 June 2026 for further hearing before
the Honourable Mrs Justice Da Silva Salie.
13. The parties are given leave to supplement their papers by no later than Monday,
8 June 2026.
14. Save as expressly provided herein, all remaining terms of the 2018 order
remains of full force and effect.
15. Each party is to pay their own costs.
BY ORDER OF THE COURT
COURT REGISTRAR
KAREN BOTHA ATTORNEY
Somerset West
c/o ENGLAND SLABBERT ATTORNEYS INC.
Cape Town
WC HC BOX 22