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South Africa Judgment

South Gauteng High Court, Johannesburg

K.S.C v D.D.M and Another (2023/02208) [2023] ZAGPJHC 537 (21 May 2023)

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Professional case brief

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Source document

01

Holding and result

The court found that the applicant had made out a case for relief. The father's refusal to sign the consent form was not based on substantive objection to the trip but rather a reluctance to participate in the process. The WhatsApp messages indicated no genuine opposition to the travel. The court considered the best interests of the child and the absence of any valid reason for withholding consent. Accordingly, the court granted the order permitting the applicant to travel.

Court disposition

Order granted permitting the applicant to travel without the father's written consent.

Orders

  • The applicant is permitted to travel to Dubai for four days with her mother without the father's written consent.
  • Order issued in terms of X.

02

Material facts

Parties

K.S.C

Applicant Counsel: Applicant in person and her attorney

D.D.M

Respondent

Department of Home Affairs

Respondent

03

Procedural history

  1. Posture

    Urgent Application / First Instance

04

Questions and positions

Legal issues

Party arguments

Applicant
The applicant, a minor, seeks the court's permission to travel to Dubai with her mother for four days. She has obtained plane tickets and visas but requires her father's written consent as she is under 18. The applicant contends that the father's refusal is not based on substantive objection but rather a reluctance to sign, as evidenced by WhatsApp messages indicating he is not against the trip.
Respondent
The respondent father did not appear in court and failed to join the scheduled Teams hearing despite being sent a link. His WhatsApp messages suggest he is not opposed to the trip but refuses to sign the consent form, stating he will not sign even if pressured.

05

Court’s reasoning

  1. 01

    Children's Act 38 of 2005

    A minor requires parental consent for international travel, but the court may intervene where consent is unreasonably withheld.

  2. 02

    Section 28(2) of the Constitution of the Republic of South Africa, 1996

    The best interests of the child are paramount in all matters concerning children.

06

Ratio, limits and disposition

Ratio decidendi

The court found that the applicant had made out a case for relief. The father's refusal to sign the consent form was not based on substantive objection to the trip but rather a reluctance to participate in the process. The WhatsApp messages indicated no genuine opposition to the travel. The court considered the best interests of the child and the absence of any valid reason for withholding consent. Accordingly, the court granted the order permitting the applicant to travel.

Obiter and limits

  • The court notes the importance of parental cooperation in matters affecting children, especially where no substantive objection exists.
  • Failure to participate in court proceedings may result in orders being granted in the absence of opposition.

Court disposition

Order granted permitting the applicant to travel without the father's written consent.

  • The applicant is permitted to travel to Dubai for four days with her mother without the father's written consent.
  • Order issued in terms of X.

Source and reliance status

South Gauteng High Court, Johannesburg

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Judgment reading view

Judgment text

The complete available source text.

Source document

South Gauteng High Court, Johannesburg

Judgment

[2023] ZAGPJHC 537

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: 2023/02208

NOT REPORTABLE

NOT OF INTEREST TO

OTHER JUDGES

REVISED

21.05.23

In the matter between:

K.S.C Applicant and D.D.M 1st Respondent

DEPARTMENT

OF HOME AFFAIRS 2nd Respondent

Neutral Citation: K.S.C v D.D.M & Another (Case No: 02208/2023) [2023] ZAGPJHC 537 (21 May 2023)

JUDGMENT

WRIGHT J

1. The applicant is a woman who will turn 18 in two months’ time. She and her mother have arranged to go to Dubai this evening for a four day visit. Plane tickets have been bought and visas obtained. As the applicant is under 18 she needs her father’s consent.

2. The respondent father has not consented but Whatsapp messages show that he is not against the trip. He suggests that someone else signs. He says that he won’t sign even if the whole army arrives.

3. He failed to join a Teams hearing even though he was sent a link.

4. In my view a case is made out.

ORDER

1. Order ito X.

GC Wright

Judge of the High Court

Gauteng Division, Johannesburg

HEARD : 21 May 2023

DELIVERED : 21 May 2023

APPEARANCES :

APPLICANT Applicant in person and her attorney. johanna.mohlahlo@gmail.com 076 092 9920

RESPONDENT No appearance

Source wording is retained. Consult the source document for its original formatting and pagination.

Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

Children's Act 38 of 2005

Legislation

Legislation referenced in the available case record.

Constitution of the Republic of South Africa, 1996

Legislation

Legislation referenced in the available case record.

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